Jackson v. Russell

Filing 37

MEMORANDUM - Signed by Judge Sue L. Robinson on 8/17/15. (rwc)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

RICHARD K. JACKSON,
Plaintiff,

v.
RORY RUSSEL,
Defendant.

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) Civ. No.14-1034-SLR
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MEMORANDUM
1. Introduction. Plaintiff, an inmate at the Sussex Correctional Institution
("SCI"), Georgetown, Delaware, proceeds pro se and has been granted leave to
proceed in forma pauperis. He filed this complaint pursuant to 42 U.S.C. § 1983 and
the Religious Land Use and Institutionalized Persons. The matter proceeds on the
original complaint with service on the sole defendant named therein, Rory Russell.
Before the court are several motions filed by plaintiff. (0.1. 21, 24, 25, 35, 36)
2. Motion to Compel. Plaintiff moves to compel defendant to respond to
discovery requests. (0.1. 21) The court will grant the motion. Pursuant to Fed. R. Civ.
P.26:
[pJarties may obtain discovery regarding any nonprivileged matter that is
relevant to any party's claim or defense--including the existence,
description, nature, custody, condition, and location of any documents or
other tangible things and the identity and location of persons who know of
any discoverable matter. For good cause, the court may order discovery
of any matter relevant to the subject matter involved in the action.
Relevant information need not be admissible at the trial if the discovery
appears reasonably calculated to lead to the discovery of admissible
evidence.
Fed. R. Civ. P. 26(b)(1).

3. Plaintiff served defendant with discovery requests on or about March 28,
2015. When defendant did not respond to the discovery in a timely manner, plaintiff
wrote to defense counsel about the outstanding discovery, but defendant failed to
respond to the discovery. Defendant did not file an opposition to the motion to compel
and the time has long passed for him to respond to plaintiff's request for production of
documents, interrogatories, and request for admissions. See Fed. R. Civ. P. 33, 34, 36.
4. Defendant shall provide the documents requested in the request for
production of documents and answer the interrogatories. See Fed. R. Civ. P. 33 (any
ground not stated in a timely objection is waived unless the court, for good cause,
excuses the failure.) The admissions are deemed admitted. See Fed. R. Civ. P.
36(a)(3) (a matter is admitted unless, within 30 days after being served, the party to
whom the request is directed serves on the requesting party a written answer or
objection addressed to the matter and Signed by the party or its attorney.).
5. Deposition upon Written Questions. Plaintiff seeks to depose defendant
and non-party witnesses upon written questions pursuant to Fed. R. Civ. P. 31. (0.1.
24) The court will grant plaintiff's motion for leave to depose defendant by written
questions.
6. The court will deny without prejudice to renew plaintiff's motion for leave to
depose non-party witnesses upon written questions upon a showing by plaintiff that he
has the ability to pay for the expenses of non-party depositions upon written question,
including any costs associated with issuance of the subpoena, such as photocopy fees,
witness fees, or mileage. Federal courts are not authorized to waive or pay witness

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fees for indigent litigants and an inmate proceeding in forma pauperis in a civil action
may not issue subpoenas without paying the required fees. See Jacobs v. Heck, 364 F.
App'x 744,748 (3d Cir. 2010) (unpublished) (court did not err in holding that inmate
must pay the fees and costs for any prison official he wished to subpoena for trial). See
also Canady v. Kreider, 892 F. Supp. 668, 670 (M.D. Pa. 1995) (finding that there is no
statutory provision authorizing a federal court to waive or provide for payment of witness
fees required by 28 U.S.C. § 1821(a) and holding that "a litigant proceeding in forma
pauperis is required to tender witness fees as provided in § 1821 to effect service of
subpoenas under Rule 45(b)(1)).
7. Amendment. Plaintiff filed a motion for leave to amend his complaint (D.I.
25) on June 4,2015 and, later, filed a motion to strike, construed by the court as a
motion to withdraw D.1. 25 (D.I. 35), followed by another motion for leave to file an
amended complaint (D.I. 36) on July 1, 2015. The court will grant the motion to
withdraw and will deny as moot the June 4,2014 motion for leave to amend at D.1. 25.
The court will deny the July 1,2015 motion for leave to file an amended complaint due
to futility of amendment.
8. The proposed amended complaint seeks to add Robert Coupe ("Coupe",
Perry Phelps ("Phelps"), G.R. Johnson ("Johnson"), and Dean Blades ("Blades") as
defendants to this action. The proposed amendment speaks to a grievance plaintiff
submitted that was investigated by Blades who held a hearing and forwarded the
grievance to Johnson. Johnson denied the grievance and the denial was affirmed by
Phelps. Plaintiff's proposed claim against Coupe is that, as the Commissioner for the

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Delaware Department of Correction ("DOC"), he is responsible for ensure inmates are
not deprived of their right to practice their religion.
9. The filing of prison grievances is a constitutionally protected activity.
Robinson v. Taylor, 204 F. App'x 155, 157 (3d Cir. 2006) (unpublished). To the extent
that plaintiff bases his claims upon his dissatisfaction with the investigation, grievance
procedure, or denial of his grievance, the claims fail because an inmate does not have a
free-standing constitutionally protected right to an effective grievance process. See
Woods v. First Corr. Med., Inc., 446 F. App'x 400,403 (3d Cir. 2011) (unpublished)
(citing Flick

V.

Alba, 932 F.2d 728,729 (8th Cir. 1991». Notably, the denial of grievance

appeals does not in itself give rise to a constitutional claim as plaintiff is free to bring a
civil rights claim in district court. Winn
(3d Cir. 2009) (citing Flick

V.

V.

Department of Corr., 340 F. App'x 757,759

Alba, 932 F.2d at 729). Plaintiff cannot maintain a

constitutional claim based upon his perception that his grievance were not properly
investigated, denied, or that the grievance process is inadequate. Accordin{;1ly, the
proposed amendment is futile.
10. With regard to the proposed claim against Coupe, it is evident that it is raised
against him based upon his supervisory position as the DOC Commissioner. It is well
established that claims based solely on the theory of respondeat superior or supervisor
liability are facially deficient. See Ashcroft V. Iqbal, 556 U.S. 662, 676-77 (2009); see
also Solan

V.

Ranck, 326 F. App'x 97, 100-01 (3d Cir. 2009) (unpublished) (holding that

U[a] defendant in a civil rights action must have personal involvement in the alleged
wrongs; liability cannot be predicated solely on the operation of respondeat superior").
Hence, the proposed amendment against Coupe is futile.

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11. Conclusion. The court will: (1) grant the motion to compel (0.1. 21);
(2) grant in part and deny in part without prejudice to renew the motion for depositions
upon written questions (0.1. 24); (3) deny as moot the June 4,2015 motion to amend
(0.1.25); (4) grant the motion to withdraw 0.1. 25 (0.1. 35); and (5) deny the motion for
leave to file a second amended complaint (0.1. 36). A separate order shall issue.

Date: August ---.J.l, 2015

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