WEST v. COPELAND et al

Filing 67

ORDER re 48 Amended Complaint, 56 MOTION to Compel, 65 MOTION to Amend/Correct 1 Complaint, 51 MOTION to Compel, 50 MOTION to Compel, 46 MOTION to Appoint Counsel, 60 MOTION FOR AN ORDER TO SUBPOENA, 54 MOTION for an Order for Subpoenas, 49 Notice (Other), 59 MOTION to Compel, 61 MOTION for Leave to File DEPOSITION UPON WRITTEN QUESTIONS, 55 MOTION for Leave to File Deposition by Written Questions, 66 MOTION for Extension of Time to Complete Discovery, 62 MOTION to Demand Inspection, ORDER Directing Service as to Nathan Turner. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 6/9/15. (AGH)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
KEVIN WEST,

:
:
Plaintiff,
:
:
VS.
:
:
Sergeant TEMPLE,
:
:
Defendant.
:
__________________________________

CASE NO. 5:14-CV-86-MTT-MSH
42 U.S.C. § 1983

ORDER
Currently pending before the Court are Plaintiff’s motion to appoint counsel (ECF
No. 46), four motions to compel discovery (ECF Nos. 50-51, 56, 59), two motions for
leave to file a deposition upon written questions (ECF No. 55, 61), two motions for an
order to subpoena (ECF Nos. 54, 60), a motion seeking an order to demand inspection
(ECF No. 62), a motion for an extension of time to complete discovery (ECF No. 66), and
two motions to amend (ECF Nos. 48, 65). For the reasons explained below, Plaintiff’s
motion to appoint counsel is denied, his discovery motions are denied, and his motions to
amend are granted in part and denied in part.
BACKGROUND
Plaintiff alleges that on July 30, 2013, he was being taken to court by Sergeants
Copeland and Sirmans. Compl. 5. The transport bus stopped at Dooly State Prison to let
inmates on and off the bus. According to Plaintiff, Copeland and Sirmans directed
Plaintiff and the other inmates who were not staying at Dooly State Prison to exit. Id.

While Plaintiff was off the bus, Defendant Sergeant Temple, “for no reason,” allegedly
slammed Plaintiff, who was in waist chains, leg irons, and handcuffs, onto the concrete.
Id. Another unidentified officer then dragged Plaintiff by his leg irons, while Defendant
Temple “held [Plaintiff’s] arms on the ground and had his knee in [Plaintiff’s] back[,]”
which left Plaintiff’s elbows and fingers “badly” scraped. Compl. 5. Plaintiff thereafter
asked Defendant Captain Williams for a grievance form, but was refused one. Plaintiff
believes that the assault “would have never happened,” but for Copeland and Sirmans
ordering Plaintiff to exit the bus.
Plaintiff originally brought this action against Sergeants Copeland, Sirmans,
Temple, and Captain Williams for failure to provide him with grievance forms and for
cruel and unusual punishment. Compl. 5. After preliminary review, only the claim
against Sergeant Temple for a violation of Plaintiff’s Eighth Amendment right to be free of
excessive force was allowed to proceed.

Order 1-2, Apr. 28, 2014, ECF No. 21.

Defendant Temple thereafter moved to dismiss for, inter alia, failure to state a claim and
qualified immunity. Br. in Supp. of Mot. to Dismiss 3-9, ECF No. 25-1. In response,
Plaintiff filed a motion to amend his complaint (ECF No. 29) in addition to his opposition
to the motion to dismiss (ECF No. 30). After the motion to dismiss was fully briefed,
Plaintiff also moved to amend his complaint to add as a defendant the unidentified “John
Doe” officer that he alleges dragged him across the ground at Dooly State Prison. Second
Mot. to Am. 1-2, ECF No. 33.
Plaintiff’s motion to amend his complaint was denied as futile; additionally,
Defendant’s motion to dismiss for failure to state a claim and qualified immunity was also
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denied after briefing and recommendation by the undersigned. Order 5, Feb. 23, 2015,
ECF No. 38. Subsequently, Plaintiff filed a new motion to appoint counsel (ECF No. 46),
as well as several motions to compel discovery (ECF Nos. 50-51, 56, 59), motions for leave
to file depositions upon written questions (ECF No. 55, 61), motions for an order to
subpoena (ECF Nos. 54, 60), as well as a motion to demand inspection (ECF No. 62), a
motion for extension of time to complete discovery (ECF No. 66) and two motions to
amend (ECF Nos. 48, 65). Defendant responded to motions to compel, with briefing in
opposition, general objections, and provided documents per Plaintiff’s discovery requests.
Def.’s Objs. & Resps. to Pl.’s First Interrogs., ECF No. 58-1. These motions are now ripe
for review.
DISCUSSION
I.

Motion to Appoint Counsel
This is Plaintiff’s third motion to appoint counsel. As was previously explained to

Plaintiff, under 28 U.S.C. § 1915(e)(1), the district court “may request an attorney to
represent any person unable to afford counsel.”

However, there is “no absolute

constitutional right to the appointment of counsel” in a section 1983 lawsuit. Poole v.
Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987). Appointment of counsel is a privilege
that is justified only by exceptional circumstances. Lopez v. Reyes, 692 F.2d 15, 17 (5th
Cir. 1982). In deciding whether legal counsel should be provided, the Court considers,
among other factors, the merits of Plaintiff’s claim and the complexity of the issues
presented. Holt v. Ford, 682 F.2d 850, 853 (11th Cir. 1989). Plaintiff has set forth the
essential factual allegations underlying his claims and the Court will determine whether
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Plaintiff’s allegations support a colorable legal claim. This process is routine in pro se
prisoner actions and therefore “exceptional circumstances” justifying appointment of
counsel do not exist. Accordingly, Plaintiff’s third motion to appoint counsel (ECF No.
46) is denied.
II.

Discovery Motions
Plaintiff filed ten discovery motions. Four motions seek to compel discovery (ECF

Nos. 50-51, 56, 59), two motions seek leave to file a deposition upon written questions
(ECF No. 55, 61), two motions seek an order to subpoena (ECF Nos. 54, 60), one motion
seeks an order to demand inspection (ECF No. 62), and one motion seeks an extension of
time to complete discovery (ECF No. 66). First, Plaintiff’s motions to compel seek the
court’s intervention in obtaining answers to his interrogatories and requests for production.
Additionally, Plaintiff requests sanctions in the amounts of $150.00, $200.00, and $100.00
from Defendant on the grounds that he did not receive timely answers from opposing
counsel and that there was no substantial justification for not answering the requests. See
First Mot. Order Compel Disc., ECF No. 50; Second Mot. Order Compel Disc., ECF No.
51; Third Mot. Order Compel Disc., ECF No. 56. Second, Plaintiff’s motions for leave to
file deposition upon written questions seek leave of the court to depose an unspecified
witness, to gain unspecified information which Plaintiff contends is very relevant and
would greatly assist him in litigating his case. Mot. Leave File Dep., ECF Nos. 55, 61.
Third, Plaintiff’s seeks a court order issuing a subpoena to Defendant which would require
him to provide requested documents, including a copy of log book entries at the Dooly
State Prison on July 30, 2013, and the Georgia Department of Corrections (GDOC)
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numbers of the inmates on the transport bus at the time of the incident. First Mot. Order
Subpoena, ECF No. 54. Plaintiff submitted identical motions for the former purpose on
both May 3, 2015 and May 6, 2015.

Second Mot. Order Subpoena, ECF No. 60.

Additionally, Plaintiff filed a letter requesting a subpoena to the GDOC in order to obtain
his medical records. Letter, Apr. 23, 2015, ECF No. 49. Fourth, Plaintiff’s motion to
demand inspection seeks the authority to inspect Dooly State Prison where Plaintiff
contends that there is a surveillance camera which captured the events on July 30, 2013.
Mot. Demand Inspection, ECF No. 62. Defendant states that the only video of the
incident is from a hand-held camera and has provided Plaintiff the opportunity to review
such video. Def.’s Objs. & Resps. to Pl.’s First Req. Prod. Docs. 6, ECF No. 58-2.
Finally, Plaintiff seeks an extension of the discovery deadline. For the reasons explained
in detail below, Plaintiff’s motions to compel discovery (ECF Nos. 50-51, 56, 59) are
denied, his motions for leave to file deposition upon written questions (ECF Nos. 55, 61)
are denied, his motions for order to subpoena (ECF Nos. 54, 60) are denied, his motion to
demand inspection (ECF No. 62) is denied, and his motion for an extension of the
discovery deadline is denied.
A.

Motions to Compel Discovery

Plaintiff filed two motions to compel discovery on April 27, 2015, pursuant to
Federal Rule of Civil Procedure 37(a). One motion seeks an order compelling answers to
his interrogatory requests, and one seeks an order compelling the production of documents.
See generally, First Mot. Order Compel Disc. 1; Second Mot. Order Compel Disc. 1-2.
Each motion seeks sanctions, in the form of “reasonable expenses” of litigating the motion
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to compel, against Defendant for failing to respond to Plaintiff’s requests. However,
Defendant responded to Plaintiff’s requests on April 23, 2015. See Def.’s Objs. & Resps.
to Pl.’s First Interrogs. 11; Def.’s Objs. & Resps. to Pl.’s First Req. Prod. Docs. 6.
Although Plaintiff’s service was likely improper, Defendant’s counsel timely served
responses to the requests within the 30-day period and three day extension through mail
service. See Fed. R. Civ. P. 6(a)(1)(C), 33(b)(2). Therefore, Plaintiff’s contentions that
Defendant did not respond and that Federal Rule of Civil Procedure 37(a)(4) entitles him to
a reasonable fee assessment for the delay in answering is misguided. Plaintiff’s first two
motions to compel (ECF Nos. 50, 51) are consequently denied.
Plaintiff filed two additional motions to compel discovery—one on May 2, 2015
and one on May 5, 2015. (ECF Nos. 56, 59.) These two motions seek the same
relief—Plaintiff asks Defendant to “fully” answer his interrogatory request numbers 3, 4,
6, 9, 20, and 24. Defendant has responded to each of these interrogatory requests. Def.’s
Objs. & Resps. to Pl.’s First Interrogs. 5-7, 9-10. The fact that Plaintiff disagrees with the
content of some of Defendant’s responses is not a ground for compelling discovery. See,
e.g., Gray v. Faulkner, 148 F.R.D. 220, 223 (N.D. Ind. 1992) (“The fact that a party may
disbelieve or disagree with a response to a discovery request, however, is not a recognized
ground for compelling discovery, absent some indication beyond mere suspicion that the
response is incomplete or incorrect.”); Rong Ran v. Infinite Energy, Inc., No.
1:07-cv-249-MMP-AK, 2010 WL 148240, at * 1 (N.D. Fla. Jan. 12, 2010) (“Defendants
have responded to Plaintiff’s [discovery] requests, and the fact that Plaintiff disagrees with
Defendants’ responses does not provide a basis for this Court to order any relief.”) Thus,
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Plaintiff’s motions to compel (ECF Nos. 56, 59) regarding the interrogatory responses are
denied.1
B.

Motions for Leave to File Deposition Upon Written Questions

Plaintiff also seeks leave to file a deposition upon written questions pursuant to
Federal Rule of Civil Procedure 31 (ECF Nos. 55, 61). Plaintiff only needs permission
from this Court to depose someone who is incarcerated. Fed. R. Civ. P. 31(a)(2)(B).
However, Plaintiff fails to identify the party or parties he wishes to depose. At this time,
Plaintiff’s request is thus denied as moot. Plaintiff may depose witnesses pursuant to Rule
31 at his own expense.
C.

Motions for Order to Subpoena

Plaintiff filed three requests for subpoenas—two motions and one letter (ECF Nos.
49, 54, 60). He asks for the following subpoenas: (1) to the Georgia Department of
Corrections “Medical Division” to obtain his medical records; and (2) to Sergeant Sirmans
and Sergent Copeland at Valdosta State Prison to produce the “log book entries” with all
names and GDOC numbers of inmates on the July 30, 2013 prison bus. These requests are
virtually identical to two of Plaintiff’s requests for production.
In request (2), Plaintiff asks Defendant to produce his medical records on and after
July 30, 2013. Def.’s Objs. & Resps. to Pl.’s First Req. Prod. Docs. 5. Defendant did not
produce the medical records, but provided Plaintiff with reference to the appropriate

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The Court notes that Plaintiff failed to include in his motions a certification that he has in good
faith conferred with Defendant in an attempt to obtain the information he seeks without court
intervention. Fed. R. Civ. P. 37(a)(1); M.D. Ga. Loc. R. 37. For this additional reason,
Plaintiff’s discovery motions are denied.
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GDOC Standard Operating Procedure which tells Plaintiff how he can obtain his medical
records. Id. Likewise in request (4), Plaintiff asks Defendant to produce “Intake log
book entries for the inmates who were on the transfer bus and the inmates who go off the
transfer bus on July 30, 2013, at Dooly State Prison. Def.’s Objs. & Resps. to Pl.’s First
Req. Prod. Docs. 5. Defendant produced the intake sheet as requested on April 23, 2015.
Id. Because these requests for a subpoena are duplicative of discovery requests for which
Plaintiff has already received responses, the Court denies Plaintiff’s motions and request
for subpoenas.
D.

Motion to Demand Inspection

Plaintiff filed a motion to demand inspection on May 13, 2015, pursuant to Federal
Rule of Civil Procedure 34. Mot. Demand Insp. 1, ECF No. 62. Specifically, Plaintiff
asks the Court to order Defendant to provide transportation to the Dooly State Prison so
that he can verify that there is a ceiling mounted camera that recorded the incident on July
30, 2013. Id. It is Plaintiff’s understanding that Defendant denies the existence of a
ceiling mounted camera in that area of the prison. Id. However, Defendant does not
deny the existence of a ceiling mounted camera, he denies the existence of a “ceiling
mounted video”—i.e., Defendant denies the existence of a video taken by a ceiling
mounted camera. Def.’s Objs. & Resps. to Pl.’s First Req. Prod. Docs. 6. Defendant
states that there is only one video of the incident, from a hand-held device, that will be
made available for Plaintiff to review. Id. Whether there is a ceiling mounted camera is
consequently irrelevant since there is no video of the incident from that camera.
Plaintiff’s motion to inspect is therefore denied.
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E.

Motion for Extension of Time to Complete Discovery

Plaintiff seeks an extension of time to complete discovery in order to obtain witness
statements from other currently confined inmates. Letter Motion 1, May 31, 2015, ECF
No. 66. Since the Court is denying Plaintiff’s motions for discovery, there is no need to
extend the discovery deadline. Plaintiff’s motion for an extension of time is thus denied at
this time.
However, Plaintiff also states that prison officials are preventing him from
obtaining his medical records and from corresponding with other inmates regarding this
case. The Court recognizes the need for prison officials to maintain security, but Plaintiff
cannot be prohibited from obtaining witness statements or affidavits concerning this case.
Likewise, Plaintiff may not be prevented from obtaining his medical records provided he
follows the appropriate procedure to obtain those records.
Plaintiff

shall

correspond

with

Defendant’s

counsel

regarding

any

affidavits/witness statements he seeks to obtain if he cannot obtain them directly. He need
not provide Defendant’s counsel with the content of those statements, but merely inform
counsel of the witness’ names. The Court expects defense counsel to ensure that Plaintiff
is able to correspond with any relevant witness. If the parties determine that additional
discovery time is necessary, they should so inform the Court within fourteen (14) days with
a joint proposal for an extension of time.
III.

Amended Complaints
Plaintiff filed an Amended Complaint without leave of court on April 19, 2015

(ECF No. 48). He also filed a motion for leave to amend on May 26, 2015 (ECF No. 65).
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Plaintiff previously moved for leave to amend on July 6, 2014 (ECF No. 29) and on
December 15, 2014 (ECF No. 33). His first request to amend was granted, but his second
was denied as futile. See Order & R&R 3-4, Jan. 14, 2015, ECF No. 34; Order 3-4, Feb.
23, 2015, ECF No. 38. Thus, these two requests to amend are Plaintiff’s third and fourth
requests.
His “Amended Complaint” adds minor additional detail concerning the incident on
July 30, 2013 and Plaintiff’s alleged injuries. The Court construes Plaintiff’s Amended
Complaint as a motion to amend.

To the extent that Plaintiff adds factual details

concerning the July 30, 2013 incident, the Court grants his request to amend. However, it
is unclear if Plaintiff is attempting to state a claim for relief against Captain Williams or a
claim for deliberate indifference to a serious medical need. To the extent that he is
attempting to now add such claims, his motion to amend is denied.
Plaintiff’s claim against Captain Williams for not providing Plaintiff with a
grievance form was dismissed for failure to state a claim. Order 1-2, Apr. 28, 2014, ECF
No. 21. Such claim fails for the same reasons previously explained. Likewise, the
district judge dismissed Plaintiff’s deliberate indifference claims regarding his alleged
“chest pain” as futile. Order 4, Feb. 23, 2015, ECF No. 38. Plaintiff may not restate
those claims through his third amendment.
Plaintiff’s fourth request to amend is more specific and limited. Plaintiff identifies
the CERT team member he claims pulled him across the ground as Nathan Turner. Fourth
Mot. to Am. 1, ECF No. 65. He seeks to add Nathan Turner presumably as a defendant in
this action. Id. Furthermore, Plaintiff seeks to add that he was seen by a medical staff
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member Simpson who merely conducted a “visual examination” of him after the July 30
incident.

Id.

Plaintiff’s request to add Nathan Turner as a defendant is granted.

Plaintiff’s request, however, to add a claim against Simpson is denied for the same reasons
as explained above regarding his “chest pain” claims. Plaintiff’s only currently pending
claims are claims for excessive force against Defendant Temple and now against
Defendant Turner. Service is directed on Nathan Turner as explained below.
CONCLUSION
For the reasons explained above, Plaintiff’s motion to appoint counsel is denied
(ECF No. 46), his discovery motions are denied (ECF Nos. 50-51, 54-56, 59-62, 66), and
his motions to amend (ECF Nos. 48, 65) are granted in part and denied in part.
ORDER FOR SERVICE
It is ORDERED that service be made on Defendant Nathan Turner, CERT team
member at Dooly State Prison, and that he file an Answer, or such other response as may be
appropriate under the Federal Rules of Civil Procedure, 28 U.S.C. § 1915, and the Prison
Litigation Reform Act. Defendant is reminded of the duty to avoid unnecessary service
expenses and the possible imposition of expenses for failure to waive service.
DUTY TO ADVISE OF ADDRESS CHANGE
During this action, all parties shall at all times keep the Clerk of this Court and all
opposing attorneys and/or parties advised of their current address. Failure to promptly
advise the Clerk of any change of address may result in the dismissal of a party’s pleadings.
DUTY TO PROSECUTE ACTION
Plaintiff must diligently prosecute his Complaint or face the possibility that it will
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be dismissed under Rule 41(b) of the Federal Rules of Civil Procedure for failure to
prosecute. Defendant is advised that he is expected to diligently defend all allegations
made against them and to file timely dispositive motions as hereinafter directed. This
matter will be set down for trial when the Court determines that discovery has been
completed and that all motions have been disposed of or the time for filing dispositive
motions has passed.
FILING AND SERVICE OF MOTIONS,
PLEADINGS, AND CORRESPONDENCE
It is the responsibility of each party to file original motions, pleadings, and
correspondence with the Clerk of Court. A party need not serve the opposing party by
mail if the opposing party is represented by counsel.

In such cases, any motions,

pleadings, or correspondence shall be served electronically at the time of filing with the
Court. If any party is not represented by counsel, however, it is the responsibility of each
opposing party to serve copies of all motions, pleadings, and correspondence upon the
unrepresented party and to attach to said original motions, pleadings, and correspondence
filed with the Clerk of Court a certificate of service indicating who has been served and
where (i.e., at what address), when service was made, and how service was accomplished
(i.e., by U.S. Mail, by personal service, etc.).
DISCOVERY
Plaintiff shall not commence discovery until an answer or dispositive motion has
been filed on behalf of Defendant from whom discovery is sought by Plaintiff. Defendant
shall not commence discovery until such time as an answer or dispositive motion has been
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filed. Once an answer or dispositive motion has been filed, the parties are authorized to
seek discovery from one another as provided in the Federal Rules of Civil Procedure.
Plaintiff’s deposition may be taken at any time during the time period hereinafter set out,
provided that prior arrangements are made with his custodian. Plaintiff is hereby advised
that failure to submit to a deposition may result in the dismissal of his lawsuit under Rule
37 of the Federal Rules of Civil Procedure.
IT IS HEREBY ORDERED that discovery (including depositions and the service
of written discovery requests) shall be completed within 90 days of the date of filing of an
answer or dispositive motion by Defendant (whichever comes first) unless an extension is
otherwise granted by the Court upon a showing of good cause therefor or a protective order
is sought by Defendant and granted by the Court. This 90-day period shall run separately
as to each Defendant beginning on the date of filing of each Defendant’s answer or
dispositive motion (whichever comes first). The scheduling of a trial may be advanced
upon notification from the parties that no further discovery is contemplated or that
discovery has been completed prior to the deadline.
Discovery materials shall not be filed with the Clerk of Court. No party shall be
required to respond to any discovery not directed to him or served upon him by the
opposing counsel/party. The undersigned incorporates herein those parts of the Local
Rules imposing the following limitations on discovery: except with written permission of
the Court first obtained, INTERROGATORIES may not exceed TWENTY-FIVE (25) to
each party, REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS under
Rule 34 of the Federal Rules of Civil Procedure may not exceed TEN (10) requests to each
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party, and REQUESTS FOR ADMISSIONS under Rule 36 of the Federal Rules of Civil
Procedure may not exceed FIFTEEN (15) requests to each party. No party is required to
respond to any request which exceed these limitations.
REQUESTS FOR DISMISSAL AND/OR JUDGMENT
Dismissal of this action or requests for judgment will not be considered by the Court
in the absence of a separate motion therefor accompanied by a brief/memorandum of law
citing supporting authorities. Dispositive motions should be filed at the earliest time
possible, but in any event no later than one hundred-twenty (120) days from when the
discovery period begins.
SO ORDERED, this 9th day of June, 2015.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE

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