SHAW v. HALL et al

Filing 251

ORDER denying 226 Motion to appoint expert witness; denying 246 Motion to Stay; denying 247 Motion to Amend/Correct; denying 248 Motion to Stay. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 8-11-15 (mpm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
DEXTER SHAW,
Plaintiff,
VS.
HILTON HALL, et al.,
Defendants.
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CIVIL No: 5:12-CV-0135-CAR-MSH

ORDER
Presently pending before the Court are several motions filed by Plaintiff.1 The first
is a motion for the Court to appoint an expert witness on Plaintiff’s behalf. (ECF No.
226.) Next are two motions (ECF Nos. 246 & 248) to stay the proceedings in this case and
stop the Court from ruling on Defendants’ motion for summary judgment. Last is a
motion to amend Plaintiff’s response to Defendants’ pre-answer motion to dismiss. (ECF
No. 247.)
I.

Motion to Appoint Expert Witness
Plaintiff asks the Court to appoint a handwriting expert in order to testify on his

behalf that a document filed by Defendants is not accurate and has been forged. The
document, Attachment-A to Plaintiff’s motion, appears to be a request from Defendant
Hilton Hall, on behalf of Georgia State Prison (GSP), to the Georgia Department of

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Also pending is a motion for reconsideration (ECF No. 242) of the Court’s Order filed on
April 6, 2015 (ECF No. 237). That motion has not been referred to the undersigned, and is
therefore not considered in this Order.

Corrections (GDOC) for a variance on the requirements of the GDOC Standard Operating
Procedure (SOP) covering inmate discipline. Defendant Hall states in the document that
he requests the variance to allow for the continued use of disciplinary segregation at
Georgia State Prison because the new SOP did not include this sanction. The variance
request specifies when and how the sanction of disciplinary segregation would be used,
and that if approved, GSP would comply with all other requirements of the SOP and those
stated in the variance request. Defendant Hall signed the request on December 28, 2000.
It was recommended that the variance request be granted by Johnny L. Sikes, Regional
Director or Assistant Division Director, on December 29, 2000. Finally the document
shows that the request was approved by Mr. Rick Jacobs “for James Doctor,” on January
29, 2001.
Plaintiff argues that this document is forged. He claims that in December 2003, he
was subjected to the sanction of disciplinary segregation, but believed that it was an
improper sanction under the relevant SOP. Shaw Decl., ECF No. 226-2. Plaintiff states
that when he learned that disciplinary segregation was not allowed under the SOP that
came into effect on January 1, 2001, he requested from the law library and GSP officials a
copy of any variance allowing the continued use of disciplinary segregation and none was
produced to him.

Id. Plaintiff alleges the three officials who signed it forged the

variance request at issue in early 2004 in response to his complaints. Id. Plaintiff’s only
proof of this allegation is the timeline of events. He believes a handwriting expert will
testify that when Rick Jacobs dated the forged document, he accidentally dated it “1/29/04”
but then wrote over the 4 to make it look like a 1.
2

Rule 706 of the Federal Rules of Evidence provides the court with discretionary
power to appoint an expert to testify in a civil action. Fed. R. Evid. 706(a). Plaintiff
argues that the Eleventh Circuit’s decision in Steele v. Shah, 87 F.3d 1266 (11th Cir. 1996),
supports his request for appointment of an expert.

In that case, the district court

summarily denied the plaintiff’s request for appointment of an expert and the Eleventh
Circuit remanded, stating that the district court had abused its discretion because the
plaintiff was entitled to a “reasoned ruling upon” his motion. Id. at 1271. The Court
went on to state that the appointment of an expert may be warranted in cases where it is
necessary “to avoid a wholly one-sided presentation of opinions on the issue.” Id.
Although the Court did not offer an opinion on how the district court should rule on
remand, it noted that the expert testimony requested would be particularly relevant in that
case because one issue involved was the appropriate standard of psychiatric care. The
Court expressed concern that if only the defendant were capable of producing an expert
witness at trial, the trier of fact would only hear the one defendant-friendly opinion on that
crucial issue. Id.
Plaintiff’s request for an expert is based on his conjectural allegation that the
variance must have been forged in 2004 because he was not provided with a copy when he
requested it in 2003 and because there is a discrepancy in the date after Rick Jacobs’
signature. Plaintiff is convinced that the Defendants in this case have forged this and
other documents filed with the Court.

However, Plaintiff’s allegations are entirely

speculative and completely unsupported by facts in the record.
This case is distinguishable from the situation in Steele, as it does not present the
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same concerns of “one-sided presentation of opinions” on crucial issues present in that
case. The issue addressed by Plaintiff’s argument is not the same type of crucial issue that
was the case in Steele. Assuming, arguendo, that an expert could be found to testify as
Plaintiff desires that the date written by Rick Jacobs originally ended with a 4 and was
subsequently changed to a 1, this information does not address the underlying issue in this
case: does Plaintiff’s extended confinement to segregation constitute cruel and unusual
punishment in violation of the Eighth Amendment to the Constitution?

First, a

handwriting expert cannot conclusively state when a document was signed, even if his
analysis showed that the date was changed at some time. He could only testify that a
different number had likely been written before the 1 was scribbled in. It is entirely
plausible that Mr. Jacobs accidentally (and without any of the malice attributed by Plaintiff
without supporting facts) miswrote the last digit of the year and scribbled a 1 over it in
order to clarify his error. The handwriting expert would have no basis upon which to
attribute a state of mind to the person who wrote the date at issue.
Second, even taking the next logical leap requested by Plaintiff, if it were possible
for the handwriting expert to opine as to the state of mind of Mr. Jacobs and he testified that
the document was forged, such testimony would not go toward the issue of cruel and
unusual punishment.

If Plaintiff is correct, Defendants were continuing to use the

sanction of disciplinary segregation after the new SOP went into effect, and then used this
document to cover up that fact when Plaintiff complained.

The use of disciplinary

segregation beyond its explicit condonation by the GDOC does not necessarily mean that
its imposition on Plaintiff was “punitive” as he alleges. Courts are very deferential to the
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decisions of prison officials in how they maintain security in their prisons. Further, the
failure to follow the SOP is not in and of itself a violation of the Constitution, and therefore
this testimony would not assist Plaintiff in proving that the Defendants’ actions were in
violation of the Eighth Amendment.
As previously stated, Plaintiff’s allegations of fraud and perjury are supported by
little more than his own speculation. The Court will not give credit to such serious
allegations through the allocation of Court resources in support of them without more than
unsupported accusation. Plaintiff’s motion has been considered as required by the Steele
case, but is denied for the reasons stated above.2
II.

Motions to Stay
Plaintiff also filed two motions to stay these proceedings (ECF Nos. 246 & 248) in

order to stop the Court from ruling on Defendants’ motion for summary judgment. In
support of his request for a stay, Plaintiff argues that the Court should not rule on the
summary judgment motion until it has ruled on his motion for reconsideration (ECF No.
242) and allowed discovery to proceed on the other Eighth Amendment claims which were
previously dismissed from this action. Plaintiff’s motions are denied. These issues have
been raised on numerous occasions throughout this litigation, and been denied each time.
The district judge will consider Plaintiff’s motion for reconsideration in a timely manner,

2

Aside from the foregoing, Plaintiff’s own motion undercuts his argument that an expert is
needed. Plaintiff states that “a layman can look at the procedural variance . . . and acknowledge
that it was actually created in 2004, not 2001.” Pl.’s Mem. in Supp. of Mot. for Expert Witness 1,
ECF No. 226-1. If, as Plaintiff states, the fact to which the expert would testify would be clear to
a lay person, the testimony of an expert is not required to aid the trier of fact. See Fed. R. Evid.
701(c).
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but the case must proceed as it currently stands for the sake of judicial economy and
efficiency.
III.

Motion to Amend
Finally, Plaintiff filed a motion to amend or correct his response to Defendants’

pre-answer motion to dismiss. (ECF No. 247.) The Court has already disposed of
Defendants’ motion and has considered and denied Plaintiff’s prior motions to reconsider
its decision. Plaintiff’s proposed amendment does not change any of those decisions and
is therefore denied as futile.
CONCLUSION
Wherefore, for the reasons stated above, Plaintiff’s motion to appoint an expert
witness (ECF No. 226), motions to stay (ECF Nos. 246 & 248), and motion to amend (ECF
No. 247) are denied.
SO ORDERED, this 11th day of August, 2015.
/s/ Stephen Hyles
UNTED STATES MAGISTRATE JUDGE

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