Babadjide v. Officer Ronald Betts

Filing 40

ORDER granting in part and denying in part 31 Motion to Compel discovery from Plaintiff. Signed by Magistrate Judge Thomas B. Smith on 2/20/2018. (Smith, Thomas)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
OLIVIER BABADJIDE,
Plaintiff,
v.

Case No: 6:17-cv-658-Orl-28TBS

OFFICER RONALD BETTS,
Defendant.
ORDER
This case comes before the Court on Defendant’s Motion to Compel Better Rule
26 Disclosures and Better Responses to Discovery (Doc. 31). When Plaintiff did not
respond to the motion, the Court entered an order giving him 7 additional days (Doc. 34).
Plaintiff filed his response on February 9, 2018 (Doc. 36). In the response, Plaintiff’s
counsel reported that she had provided supplemental responses to the motion to compel
and the discovery obligations were satisfied (Doc. 36). The Court directed Defendant to
advise it whether Plaintiff’s production mooted the motion to compel (Doc. 37), and on
February 9, 2018, Defendant filed his response (Doc. 39). Defendant maintains that
although “Plaintiff’s supplemental production resolved some issues presented in the
Motion to Compel, other deficiencies remain” (Doc. 39).
Background
Plaintiff was shot by a police officer on May 30, 2012. He subsequently filed suit
alleging that the officer who shot him, Defendant Olivier Babadjide, violated 42 U.S.C. §
1983 and 1988 by using excessive force (Doc. 1 at 4-5). Plaintiff also claims that
Defendant violated Section 1983’s malicious prosecution provision due to the fact that he
“arrested, instituted and maintained by said arrest, the prosecution of Plaintiff in an

attempt to shield and cover himself from civil liability for falsely arresting Plaintiff, using
excessive force in said arrest, thus causing Plaintiff to be paralyzed.” (Doc. 1 at 5).
Plaintiff previously pursued these causes of action against the City of Cocoa
Beach and Officer Ronald Betts in a case that was dismissed on February 15, 2017
(Case No. 6:16-cv-01977-JA-TBS, Docs. 2, 49) (the “First Case”). After the Court closed
the First Case, Plaintiff filed a motion for permission to file his third amended complaint
(First Case, Doc. 50). That motion was denied and Plaintiff filed a verified motion to
reopen the case and to file a third amended complaint (First Case, Doc. 52). Plaintiff
asked the court to reopen the case on the grounds that he failed to respond to the motion
to dismiss because of his attorney’s workload and the attorney’s staff’s mistake in
calendaring the response date (Id.). On April 7, 2017, I entered a report recommending
that the motion be denied (First Case, Doc. 54). Plaintiff filed this case less than a week
later (Case No. 6:17-cv-658, Doc. 1). The Court subsequently adopted the report and
recommendation and denied Plaintiff’s motion to reopen the First Case (First Case, Doc.
55).
Discussion
As a general matter, Federal Rule of Civil Procedure 26(b)(1) allows parties to
obtain discovery regarding any non-privileged matter that is relevant to a party’s claim or
defense. “The discovery process is designed to fully inform the parties of the relevant
facts involved in their case.” U.S. v. Pepper’s Steel & Alloys, Inc., 132 F.R.D. 695, 698
(S.D. Fla. 1990) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)). “The overall
purpose of discovery under the Federal Rules is to require the disclosure of all relevant
information so that the ultimate resolution of disputed issues in any civil action may be
based on a full and accurate understanding of the true facts, and therefore embody a fair
and just result.” Oliver v. City of Orlando, No. 6:06-cv-1671-Orl-31DAB, 2007 WL
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3232227, at * 1 (M.D. Fla. Oct. 31, 2007) (citing United States v. Proctor & Gamble Co.,
356 U.S. 677, 682 (1958)). Discovery is intended to operate with minimal judicial
supervision unless a dispute arises and one of the parties files a motion requiring judicial
intervention. S.L. Sakansky & Assoc., Inc. v. Allied Am. Adjusting Co. of Florida, LLC, No.
3:05-cv-708-J-32MCR, 2007 WL 2010860, at *1 (M.D. Fla. Jul. 6, 2007).
Rule 26 requires parties to make initial disclosures which include a computation of
each category of their damages and, unless privileged, make available for inspection and
copying, the materials on which the computation is based. FED. R. CIV. P. 26(a)(1)(A)(iii).
This requirement pertains to both economic and non-economic damages, such as pain
and suffering, loss of enjoyment of life, and embarrassment. See Johnson v. R.J.
Reynolds Tobacco Co., No. 2:12-cv-618-FtM-29SPC, 2013 WL 1899737, at *1 (M.D. Fla.
May 7, 2013) (“This Court has generally required disclosure of Rule 26 information for
non-economic compensatory and punitive damages ... Other courts in this district have
also recently addressed Rule 26(a)(1)(C)'s damages disclosure requirements.
In LeBlanc v. Unifund CCR Partners, G.P., the court found that the plaintiff should
be able to estimate damages in good faith and articulate the methods of calculations of
his actual damages sought, which included ‘pain, suffering, worry, fear, and
embarrassment.’” No. 8:06–CV–1216–T–TBM, 2007 WL 2446900, * 1 (M.D. Fla. Aug.23,
2007). Plaintiff initially pled a claim for excessive force (Doc. 1, ¶¶ 17-25), however the
Court dismissed that claim with prejudice (Doc. 32 at 3). Plaintiff’s malicious prosecution
claim was dismissed without prejudice and he was given leave to amend (Doc. 32 at 3-4).
Plaintiff’s amended complaint does not plead a separate cause for malicious
prosecution. Instead, it alleges Section 1983 violations and incorporates the malicious
prosecution arguments into the facts section of the pleading (Doc. 38 at ¶¶ 11-13, 16, 19).
Plaintiff requests damages in excess of $75,000 and implies that some portion of that is
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to recover the cost of retaining an attorney to “clear the malicious prosecution” issue (Id.
at ¶ 24). Plaintiff has failed to satisfy his duty to explain this damages calculation to
Defendant. Therefore, the motion is granted to the extent it seeks a damage calculation
for Plaintiff’s malicious prosecution claim.
Defendant also alleges that Plaintiff’s supplemental responses to interrogatories
No. 12 and 14 are insufficient (Doc. 39 at 2-4). Defendant acknowledges that Plaintiff’s
response to interrogatory 12 is “potentially responsive” but “fails to identify the dates on
which Officer Betts took those actions” (Doc. 39 at 3). The motion to compel is granted inso-far as Plaintiff is directed to specify the dates that correspond to the actions detailed in
his response to the interrogatory.
Defendant maintains that Interrogatory 14 does not clearly attach any wrongdoing
to Officer Betts and that any allegation against him must be made explicit (Doc. 39 at 4).
Interrogatory 14 requested:
For each piece of evidence identified in response to
Interrogatory No. 13 above, identify the specific person(s) who
you contend destroyed the evidence and describe every fact
that supports your contention.
(Doc. 39 at 4; Doc. 39-2 at 4-5). Plaintiff’s amended answer states:
Answer is responsive in that Cocoa Beach Police Department
or the Brevard County Sheriff was in possession at the time
the dashcam video wasn’t working properly on the day of the
incident. The Vehicle was turned off and the dashcam video
turned off which is not protocol.
Both Officer Betts and Officer Hernandez had dashcam videos
that showed the events leading up to the tazing and shooting
but were turned off when the actual shooting occurred.
However after the tazing and shooting occurred and I was
lying on the ground, the dashcam videos were up and working
again.
(Id.). Plaintiff has identified the only two individuals who had access to destroy the
dashcam video and explained the factual circumstances that enabled him to reach this
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conclusion. Discovery is still in its infancy 1 and certain information – like the kind of
specifics Defendant seeks here – are bound to be forthcoming. Therefore, I find that
Plaintiff’s amended answer is responsive to interrogatory 14 and the motion to compel a
better response is denied.
Lastly, Defendant maintains that despite Plaintiff’s response promising production,
no documents were produced in response to document request No. 47 (Doc. 39 at 4-5).
To the extent Plaintiff has not produced documents responsive to this (or any other)
requests, the motion to compel is granted.
Defendant’s request for attorney’s fees is denied. In this circumstance, the Court
finds that an award of legal expenses to either party pursuant to Federal Rule of Civil
Procedure 37(a)(5) would be unjust.
DONE and ORDERED in Orlando, Florida on February 20, 2018.

Copies furnished to Counsel of Record

1

The discovery deadline in this case is: October 5, 2018 (Doc. 20 at 1).

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