Simpson v. Guess et al
Filing
77
ORDER granting in part 66 the plaintiff's motion to compel discovery; directing defendants Johnson, Minshew, and Roach to disclose records of discipline against them, with private or privileged information redacted, for the five-year perio d preceding the alleged incident by April 10, 2020; denying 71 the plaintiff's motion to strike defense counsel's declaration; granting 76 the plaintiff's motion for extension of time; the plaintiff must respond to the defendants 039; motion for summary judgment by April 30, 2020; denying defense counsel's request for sanctions to be imposed against the plaintiff; directing defense counsel to inform the Court, by April 30, 2020, whether any log would reflect outgoing mail sent by the plaintiff. Signed by Magistrate Judge Patricia D. Barksdale on 3/20/2020. (KLC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
GREGORY L. SIMPSON,
Plaintiff,
v.
Case No. 3:18-cv-547-J-39PDB
J.L. GUESS et al.,
Defendants.
_______________________________
ORDER
The
plaintiff,
correctional
a
officers
prisoner
for
proceeding
alleged
use
of
pro
se,
sues
excessive
six
force,
contending that, on April 21, 2016, he was beaten unconscious while
in handcuffs and leg restraints following an order by defendant
Bennett. Doc. 10.
The
defendants
deny
many
allegations
and
raise
fifteen
defenses, including that they acted reasonably and the plaintiff
cannot establish that they acted with a sufficiently culpable state
of mind. Doc. 58.
Before the Court is the plaintiff’s motion to compel, Doc.
66, the plaintiff’s motion for an extension of time to respond to
the
defendants’
motion
for
summary
judgment,
Doc.
76,
the
plaintiff’s request to strike a declaration of defense counsel,
Doc. 71, and the defendants’ request for sanctions up to dismissal
of this action, Doc. 67. The requests are improper under Local
Rule 3.01 because they are made within a response or reply. The
Court denies them for that reason but also addresses their merits.
Motion to Compel and Motion for an Extension of Time
The plaintiff moves to compel the production of records of
discipline against the defendants. Doc. 66. The defendants respond
Bennett, Guess,
and Wynn have no
records of discipline, and
Johnson, Minshew, and Roach have no records of discipline for use
of excessive force on an inmate. Docs. 67, 68, 68-1. For Roach,
defense counsel provides a declaration in which he states he
reviewed Roach’s records and found none about discipline for use
of excessive force on an inmate and would so testify in court.
Doc.
68-1.
Defense
counsel
argues
records
of
discipline
for
anything other use of excessive force on an inmate are irrelevant
to the claims and defenses and not proportional to the needs of
the case. Doc. 67 at 9.
To establish a claim for unconstitutional use of excessive
force on an inmate, a plaintiff must show the defendant acted with
a malicious and sadistic purpose to inflict harm. Johnson v.
Breeden, 280 F.3d 1308, 1321 (11th Cir. 2002).
“Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense and
proportional to the needs of the case, considering the importance
of the issues at stake in the action, the amount in controversy,
the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues,
and whether the burden or expense of the proposed discovery
outweighs
its
likely
benefit.”
Fed.
R.
Civ.
P.
26(b)(1).
“Information within this scope of discovery need not be admissible
in evidence to be discoverable.” Id.
Contrary to the defendants’ argument, records of discipline
are relevant even if the discipline was for something other than
2
use of excessive force on an inmate. For example, discipline for
use of force shy of excessive on an inmate, for retaliation against
an inmate, for a violation of prison protocol, for fabrication of
evidence, for lying in a report, for harassing an inmate, for use
of cruel and unusual punishment on an inmate by means other than
use of excessive force, and for beating a colleague could relate
to state of mind or veracity. In responding to the discovery
request, the defendants made no objection about proportionality,
instead focusing on relevancy, inadmissibility under Federal Rule
of Evidence 404(b), and confidentiality and now provide no analysis
about proportionality using the pertinent factors. See generally
Doc. 67 at 9.
The Court grants the motion to compel, Doc. 66, in part,
limiting the request to a reasonable time period and allowing the
defendants to redact private or privileged information, such as
birthdates. By April 10, 2020, defendants Johnson, Minshew, and
Roach must provide records of discipline against them, with private
or
privileged
information
redacted,
for
the
five-year
period
preceding April 21, 2016.
Because the Court would have sua sponte extended the time for
the plaintiff to respond to the defendants’ motion for summary
judgment in light of the timing of this discovery, the Court grants
the plaintiff’s motion for an extension of time, Doc. 76, without
awaiting a response by the defendants. The plaintiff must respond
to the defendants’ motion for summary judgment by April 30, 2020.
Request to Strike
Within a “reply,” the plaintiff asks the Court to strike
defense counsel’s declaration about records for Roach, observing
defense counsel is not a certified records custodian, contending
3
the plaintiff should not have to accept defense counsel’s word on
what the records contain, and arguing defense counsel cannot set
himself up as a witness at trial on records of discipline or lack
thereof. Doc. 71.
The
Court
denies
the
request.
Accepting
a
lawyer’s
representation that his client has no responsive documents is
commonplace
in
misrepresentation
civil
litigation
beyond
conjecture.
absent
Matters
evidence
about
of
discovery
collection and review will not be part of the trial as matters
merely collateral to the claims tried before the jury. There is no
risk defense counsel will be called to testify at trial.
Request for Sanctions
The plaintiff declares under penalty of perjury he tried to
confer with defense counsel about the motion to compel by letter
dated December 18, 2019, but received no response. Doc. 66 at 2.
He includes a copy of the letter. Doc. 66-2. Defense counsel
declares under penalty of perjury he received no letter from the
plaintiff and saw the letter for the first time when defense
counsel received the motion. Doc. 67-1. Melissa St. Clair, a
“Stores
Consultant,”
declares
under
penalty
of
perjury
she
reviewed the “legal mail log” for the plaintiff, and the log
reflects the plaintiff received two pieces of incoming mail but
provided no outgoing mail from December 11 to December 31, 2019.
Doc. 67-2.
Defense counsel
contends
the plaintiff
is a liar and a
fraudster who has maligned defense counsel’s character. Doc. 67 at
7–8. Defense counsel asks the Court to dismiss this action, order
the plaintiff to show cause why he should not be barred from filing
any more pro se actions in this Court, revoke his in-forma-pauperis
4
status, deny the motion to compel, or order him to pay the
reasonable attorney’s fees and costs incurred in responding to the
motion to compel. Doc. 67 at 5, 8. Defense counsel threatens:
“Actions have consequences, and respectfully and with all due
deference, if this Court does not sanction the Plaintiff for his
abhorrent
conduct,
then
such
inaction
will
have
its
own
consequences.”1 Doc. 67 at 7. Defense counsel further argues that
the letter, which describes asserted deficiencies and imposes a
deadline for a response, is insufficient to satisfy the requirement
to confer with opposing counsel before filing a motion. Doc. 67 at
4–5.
The plaintiff replies he submitted a written request to buy
a copy of his outgoing mail log but received no response because
the prison logs only incoming mail, not outgoing mail. Doc. 70. He
again declares under penalty of perjury he mailed the letter to
defense counsel. Docs. 70, 72.
The declarations create material issues of fact on facts
immaterial to the merits of the claims and defenses: whether the
plaintiff lied when he said he mailed the letter, whether defense
counsel lied when he said he never received the letter, whether no
one lied because the letter was sent but not received due to
inadvertent misplacement or loss at the prison, the post office,
or defense counsel’s office, and whether defense counsel misled
the Court by suggesting the log would reflect outgoing mail. In
1Defense
counsel does not address his own actions. Barring a
litigant from filing actions pro se would be reversible error. See Procup
v. Strickland, 792 F.2d 1069, 1070 (11th Cir. 1986) (striking district
court injunction preventing litigant from filing any case with district
court unless submitted by attorney). Objecting to a discovery request
on the ground that the evidence would be inadmissible under Federal Rule
of Evidence 404(b) is an improper objection. See Fed. R. Civ. P. 26(b)(1)
(“Information within this scope of discovery need not be admissible in
evidence to be discoverable.”).
5
the interest of the just, speedy, and inexpensive resolution of
this action, see Fed. R. Civ. P. 1, the Court declines to conduct
an evidentiary hearing on these collateral issues or otherwise
divert limited resources to trying to resolve them and thus denies
the defendants’ request for sanctions. Doc. 67 at 5–8. But to
confront an alleged but unaddressed misrepresentation by a lawyer,
the Court directs defense counsel to inform the Court whether any
log actually would reflect outgoing mail sent by the plaintiff.2
The information must be provided by April 30, 2020.
Had the letter been sent and received with no response
provided, the letter would suffice under Local Rule 3.01(g) under
the circumstances, which include the plaintiff’s confinement, the
plaintiff’s inability to readily pick up the telephone and get
defense counsel on the line to talk to him about discovery matters,
and defense counsel’s purported lack of response. Because of
similar logistical issues, the defendants have not tried to confer
before filing their own motions, see Docs. 26, 62, and the Court
has not required them to do so.
Ordered in Jacksonville, Florida, on March 20, 2020.
2“[L]awyers
are essential to the primary governmental function of
administering justice, and have historically been officers of the
courts.” Goldfarb v. Va. State Bar, 421 U.S. 773, 792 (1975) (internal
quotation marks omitted). A court has the “responsibility to regulate
the conduct of attorneys who practice before it.” United States v.
Kitchin, 592 F.2d 900, 903 (5th Cir. 1979).
6
c:
Gregory L. Simpson
Counsel of record
7
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