Dunham v. Zanders et al

Filing 108

ORDER denying 95 Motion for an Order Compelling Discovery for the reasons set forth in this Order. Signed by Magistrate Judge Brian K. Epps on 07/22/2019. (jlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
DUBLIN DIVISION
ANTONIO LAMAR DUNHAM,

)
)
Plaintiff,
)
)
v.
)
)
TREVON GILBERT, Correctional Officer; )
SCOTT WILKES, Warden; DR. MARY
)
ALSTON; and DR. RITTER,
)
)
Defendants.
)
__________

CV 318-018

ORDER
__________
Plaintiff, an inmate at Baldwin State Prison in Hardwick, Georgia, commenced the
above-captioned case pursuant to 42 U.S.C. § 1983. For the reasons stated below, the Court
DENIES Plaintiff’s motion to compel. (Doc. no. 95.)
I.

BACKGROUND
A.

Amended Complaint Allegations
1.

Assault

On April 25, 2016, while Plaintiff was incarcerated at Dodge State Prison (“DSP”),
Plaintiff wrote DSP Warden Zanders about being moved to a different room because his
cellmate, Rashad Smith, threatened Plaintiff and “told him he had to go [be]cause he didn’t trust
[Plaintiff].” (Doc. no. 1, p. 11.) Warden Zanders never responded. (Id.) On May 2, 2016,
Warden Zanders inspected the dorm, and Plaintiff asked him if he received the letter. (Id.)
Warden Zanders told Plaintiff he did not and instructed him to write another. (Id.) Plaintiff did

so but received no response. (Id.) Warden Zanders failed to move Plaintiff despite knowing
Smith had previously “bitten off a piece” of a former cellmate’s ear. (Id. at 23.)
On May 10, 2016, Plaintiff returned to his room from putting his bed sheets in the
laundry cart to find Smith had locked the door and would not let in Plaintiff. (Id. at 7.) Plaintiff
asked Smith why Smith had not allowed Plaintiff to put on his leg brace and pants. (Id.) Smith
“burst[] out of the room howling I’m tired of your shit,” and attacked Plaintiff. (Id.) Smith
attempted to drag Plaintiff into their room and bit Plaintiff on his hand and head. (Id.)
After Smith stopped attacking, Plaintiff went to the control booth to get medical attention.
(Id.) Officers Trevon Gilbert and an unidentified officer were not in the control booth, so
Plaintiff began beating the windows of the control booth. (Id. at 8.) The officers, who were
serving breakfast in another dorm, came into view through the window. (Id.) Plaintiff showed
Officer Gilbert he was bleeding from his face and hand. (Id.) Officer Gilbert “turned his back
on” Plaintiff, and the officers “refused to respond.” (Id.)
When Smith left their room, Plaintiff returned to put on his leg brace and pants. (Id.)
Smith returned, “grabbed [Plaintiff] in a headlock and stated sense [sic] I know I’m going to
lockdown I’m gonna give you something to remember me by forever.” (Id.) Smith “put
[Plaintiff’s right] ear in his mouth and ripped it completely out of [Plaintiff’s] head leaving a big
hole.” (Id.) Plaintiff returned to the control booth and “beat on the window for several minutes”
until Officer Gilbert saw him. (Id.) Plaintiff showed Officer Gilbert the injury, and Officer
Gilbert called his supervisor to the scene. (Id.) The officers took Plaintiff to medical, and a
nurse placed Plaintiff’s ear in saline and ice for reattachment at the hospital. (Id.)

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2.

First Ear Surgery and Post-Operative Care

Officers transported Plaintiff to a hospital in Dublin, where he received medication. (Id.
at 9.) A doctor at the hospital told Plaintiff of the need to transfer him to Dr. Syribeys in Macon
for surgery and Dr. Syribeys’s opinion, stated in a phone call, that the ear could not be
reattached. (Id.) Officers took Plaintiff to Dr. Syribeys in Macon. (Id.) Plaintiff asked Dr.
Syribeys if he was sure there was no way for the ear to be reattached, and Dr. Syribeys told him
“there’s no way medically possible . . . .” (Id.) After the transfer, Plaintiff “was left with no
choice but to let Dr. Syribeys do the surgery.” (Id.) After surgery, Dr. Syribeys said no followup appointment was necessary and the ear should stop bleeding in four days. Drs. Syribeys and
Nurallah Esmail and DSP Wardens Zanders, Sanders, and Inman decided not to reattach
Plaintiff’s ear because it was “an easier cheaper but much less effective course of treatment.”
(Id. at 22.)
Officers returned Plaintiff to Dodge State Prison. (Id. at 9.) Dr. Esmail ordered Nurses
Jackson and April to clean the blood from Plaintiff’s ear canal with cotton swabs and a mixture
of saline and peroxide. (Id.) Beginning on May 16, 2016, Plaintiff complained to Dr. Esmail
and Nurses April, Smith, and Jackson about extreme pain, bleeding, headaches, and loud ringing
in his right ear, but they told Plaintiff nothing was wrong. (Id. at 10.) On May 19, 2016,
Plaintiff was rushed back to the Dublin hospital with extreme pain and swelling in his neck. (Id.)
A doctor diagnosed Plaintiff with an infection, prescribed antibiotics, and recommended Plaintiff
see a specialist immediately. (Id.)
On May 23, 2016, Plaintiff was still bleeding out of his right ear. (Id.) Dr. Esmail told
Nurse April to clean the blood from Plaintiff’s infected ear, but she refused, saying she did not
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want to lose her license for performing the procedure. (Id.) Nurse Smith cleaned Plaintiff’s ear
instead. (Id.) Nurse April told Plaintiff she did not know why Dr. Esmail would not send him to
a specialist. (Id.) After Nurse April’s statement, Plaintiff began contacting family members to
contact prison officials on his behalf. (Id.) “Dodge Medical and Counselor Ms. Fuqua Chief”
told Plaintiff’s sister Plaintiff would be sent out for treatment soon, but he never was. (Id.)
3.

Complaints and Grievances

On May 25, 2016, Warden Zanders visited the unit where Plaintiff was located, and
Plaintiff informed him of his symptoms and Dr. Esmail’s refusal to send Plaintiff for outside
medical attention. (Id. at 11.) Plaintiff showed Warden Zanders the bleeding and asked for
medical attention. (Id.) Warden Zanders said he would “see what he could do,” but Plaintiff did
not hear from Warden Zanders again until he denied Plaintiff’s grievance regarding Dr. Esmail
two months later. (Id.) By May 28, 2016, Plaintiff was “suffering from mental depression
caused by extreme pain and medical neglect.” (Id.) Warden of Care and Treatment Sanders
came to Plaintiff’s cell, and Plaintiff showed her the blood on his pillow and asked why medical
was not providing additional treatment. (Id.) Warden Sanders only slammed the cell door
window flap in Plaintiff’s face. (Id.)
Warden Zanders had a subordinate tamper with Plaintiff’s reports regarding the attack
and hindered or tampered with Plaintiff’s mail, grievance forms, disciplinary forms, and medical
files.

(Id. at 12, 22.)

On June 14, 2016, Plaintiff filed a grievance against disciplinary

investigator Ms. Scott for “misleading and abusing disciplinary proc[e]dures by forging and/or
adding words to [Planitiff’s] disciplinary forms” regarding the attack by Smith. (Id. at 12.) Ms.
Scott came to Plaintiff’s cell after the attack to ask if Plaintiff had anything to tell Warden
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Zanders about the attack. (Id.) Plaintiff gave a statement to Ms. Scott, who said she would write
down what Plaintiff said. (Id.) Ms. Scott gave Plaintiff a blank form to sign and told Plaintiff
there would be a disciplinary hearing soon, but none ever occurred. (Id.) Dodge Prison, the
Georgia Department of Corrections, administration, security, and medical staff attempted to
hinder Plaintiff from filing a complaint about the attack. (Id.)
4.

Prison Transfer and Second Ear Surgery

Between June 16, 2016, and June 22, 2016, Plaintiff was transferred to Washington State
Prison (“WSP”) “for flooding his cell after being refused medical attention.” (Id.) WSP Warden
Michael Conley asked Plaintiff about the attack at DSP and told Plaintiff to write him a letter so
he could investigate the matter. (Id. at 13.) Warden Conley returned a few weeks later and told
Plaintiff he did not think Plaintiff was being treated fairly and he was going to do everything he
could to make sure medical would stop the bleeding in Plaintiff’s ear. (Id.) However, WSP
counselors Ms. Roberson, Ms. Davis, and Ms. Atkins “hinder[ed] and threaten[ed]” Plaintiff for
asking to see grievance responses. (Id.) They also denied Plaintiff’s request for mental health
assistance. (Id.)
During July 2016, Plaintiff was transferred to Augusta State Medical Prison (“ASMP”).
(Id. at 14.) Dr. Marc Leduc1 ran tests and recommended surgery to open Plaintiff’s ear canal,
replace his right ear lobe, stop the infection, and improve hearing. (Id.) Dr. Leduc informed
Plaintiff the bleeding had almost stopped and prescribed medication for headaches and dizziness.
(Id.) Dr. Leduc also recommended the nurses stop cleaning out Plaintiff’s ear with the medical

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swabs and said the nurses “should not have been doing that.” (Id.) Dr. Leduc asked Plaintiff
why Dr. Syribeys did not perform a follow-up evaluation. (Id.)
Dr. Leduc tried to perform surgery on Plaintiff’s ear for almost two years, but ASMP
Warden Scott Wilkes and medical administrators Drs. Alston and Edmond Ritter rescheduled
and delayed surgery on November 29, 2016, May 18, 2017, and September 28, 2017. (Id.)
Officials would take Plaintiff’s blood and give him a pre-operation physical but they would not
perform the surgery. (Id.) During the delay, Plaintiff was treated for at least eight ear infections,
dizzy spells, extreme pain, migraine headaches, loud ringing in his head, head injuries from
falling, and depression. (Id. at 15.)
After Plaintiff requested forms for filing a lawsuit about the attack, ASMP officials
decided to perform surgery. (Id.) On October 7, 2017, doctors performed ear reconstruction
surgery on Plaintiff’s right ear. (Id.) Following the surgery, the doctors told Plaintiff at least two
additional surgeries would be required to “get [Plaintiff’s] ear back to satisfactory form.” (Id.)
However, Plaintiff refused additional surgery because “the doctors messed up [his] arm during
the ear surgery.” (Id.) The doctors put Plaintiff on antibiotics and pain medication to reduce the
swelling and pain in Plaintiff’s arm, but he continues to suffer from extreme pain in his arm and
left side. (Id.) Plaintiff has complained about the pain, but Central State Prison’s medical
department is ignoring his requests. (Id.) Plaintiff has written medical administrators at Central
State Prison about reviewing his medical file, but they have refused to respond. (Id. at 16.)

1

Plaintiff identified this provider as Dr. R. Bohannon in his original complaint. On
March 6, 2019, the Court granted Plaintiff’s motion to amend to correctly identify the provider
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B.

Discovery Dispute

On January 22, 2019, Plaintiff served eight requests for production of documents on
Defendants. (Doc. no. 95, pp. 2-23.) Defendants responded on February 22, 2019, and
objected to six of Plaintiff’s requests. (Id. at 13-17.) On April 8, 2019, Plaintiff responded
to Defendants’ objections and served a second set of five document requests concerning the
same subject matter as his first document requests; namely, Plaintiff’s medical records,
grievances, and disciplinary reports regarding Defendants. (See Id. at 1-3, 13-21.) The
second set of requests are more limited in breadth than the first requests. (Id.)
On May 12, 2019, Plaintiff filed the present motion to compel after Defendants failed
to respond to his April 8th response to Defendants’ objections and second requests. (Id. at 34.)

On May 15, 2019, Plaintiff submitted a supplemental notice, stating he received

Defendants’ response to his second requests on May 14, 2019, but resolution of the motion to
compel remains necessary because Defendants relied on the same responses as they did in
their response to Plaintiff’s first requests. (Doc. no. 96.)
On June 3, 2019, Defendants responded to Plaintiff’s motion to compel, arguing
Plaintiff’s motion should be denied on the merits. (Doc. no. 98, p. 3.) While Defendants
noted it is unclear with which of Defendants’ objections Plaintiff takes issue, they
nevertheless addressed each of Plaintiff’s first requests. (Id.) Furthermore, Defendants
attached their May 8 and May 30, 2019 responses to Plaintiff’s second requests, indicating
they since produced an additional 150 pages of Plaintiff’s medical files. (Doc. nos. 98-2, 983.)

as Dr. Marc Leduc. (Doc. no. 75.)

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On June 10, 2019, the Court ordered Plaintiff to reply to Defendants’ responses
indicating which requests remained at issue following the supplemental production. (Doc.
no. 102.) On June 20 and 30, 2019, Plaintiff submitted replies in accordance with the
Court’s Order stating document requests one and three were still unresolved and indicating
Defendants failed to respond to his interrogatories dated May 13, 2019. (Doc. nos. 105,
106.)
II.

DISCUSSION
Under Fed. R. Civ. P. 26(b)(1), “Parties may obtain discovery regarding any

nonprivileged matter that is relevant to any party’s claim or defense . . . . Information within
this scope of discovery need not be admissible in evidence to be discoverable.” The Federal
Rules of Civil Procedure strongly favor full discovery whenever possible, Republic of
Ecuador v. Hinchee, 741 F.3d 1185, 1189 (11th Cir. 2013), and “[w]hen there is a doubt over
relevancy, the court should still permit discovery,” Coker v. Duke & Co., 177 F.R.D. 682,
685 (M.D. Ala. 1998).
A.

Defining the Scope of Relevant Discovery

Plaintiff’s remaining claims are based on Officer Gilbert’s alleged failure to protect
Plaintiff after the first attack on April 25, 2016, and Defendants Wilkes, Alston, and Ritter’s
failure to effect Plaintiff’s second ear surgery in a timely manner. (See generally doc. nos. 1,
13, 70, 76.) The Court now turns to a discussion of the disputed requests.
B.

Disputed Document Requests

Remaining in dispute are two document requests by Plaintiff. (Doc. no. 105, 106.)
The Court addresses each in turn.
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1. Any and all G.D.C. policies or regulation, directives, and
instructions of correctional officers concerning safety issues,
monitoring or control booths in a dorm like A-3 and A-4 with lockdown
and population dorm being in the same building like the one at Dodge
State Prison.
I’m requesting policies and regulations to answer the following
questions.
(B)
How many officers are required to be in a population and
lockdown Unit or building like A-3 and A-4 at Dodge State Prison ?
(C)
Does a supervisor have to be in a population and lockdown unit
like the one at Dodge State Prison at all times during the month of May
2016.
RESPONSE: Defendants object to this Request as unlimited in time,
Objecting further, the term “safety issues” is overly broad, vague, and
ambiguous, and objectionable to the extent it seeks documents
unrelated to the claims at issue in Plaintiff’s Complaint. Defendants
object to this Request as seeking irrelevant information; the issue in
Plaintiff’s Complaint is whether Officer Trevon Gilbert ignored
Plaintiff’s request for assistance on May 10, 2016. Policies pertaining
to the number of officers employed in a lockdown unit and the presence
of a supervisor in a lockdown unit are irrelevant to the claims and
defenses at issue in this lawsuit. Finally, Defendants object to this
Request as presenting security concerns. While Georgia Department of
Corrections (“GDC”) Standard Operating Procedure (“SOP”) II1070007, effective on March 1, 2005, is responsive to this request,
Defendants maintain that production of this policy to an inmate
represents a security risk to the operation of the GDC as this policy
discusses classified facility protocol and operations.

Plaintiff argues the SOPs are relevant to prove Officer Gilbert’s conduct on May 10,
2016; namely, that he ignored Plaintiff’s plea for help and violated prison policy by not being
inside the control booth to allow Plaintiff out of the dorm. (Doc. no. 105, p. 4.)
The SOPs requested by Plaintiff are irrelevant to his claim against Officer Gilbert,
which is based solely on his alleged failure to prevent the second attack after seeing
Plaintiff’s injuries following the first attack. (See doc. no. 12, pp. 11-12; doc. no. 13, p. 7.)
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Plaintiff provides no explanation for why the SOP would be probative of why Officer Gilbert
allegedly ignored Plaintiff’s plea for help on May 10, 2016. Accordingly, because Plaintiff
has provided no basis for determining the SOPs would be probative of his claims against
Officer Gilbert, the Court DENIES Plaintiff’s motion as to document request one.
3. Any and all statements written by Officer Gilbert concerning the
incident on May 10, 2016 about Dunham’s attack including formal
grievance and grievance appeal response.
RESPONSE: Please see the attached for documents responsive to
this Request, Bates labeled DUNHAM RPD-000001.
Plaintiff argues Defendants’ response is deficient because they failed to provide his
appeal of grievance number 245616, which concerns his allegations concerning delay of
treatment. (Doc. no. 106, pp. 3-4.) However, Defendants correctly note Plaintiff’s own
grievance does not fall within the scope of his request, which is limited to statements written
by Officer Gilbert. (Doc. no. 107, pp. 4-5.) Defendants state they have produced all
documents responsive to his request. (Id.) Defendants are not responsible for producing
documents outside the scope of Plaintiff’s requests.

Accordingly, the Court DENIES

Plaintiff’s motion as to document request three. If Plaintiff wishes to request the grievance
appeal form for grievance number 245616, he may do so prior to the close of discovery on
August 9, 2019. (See doc. no. 84.)
C.

May 13, 2019 Interrogatories

In his second reply brief, Plaintiff states Defendants failed to respond to
interrogatories served by mail on May 13, 2019. (Doc. no. 106, pp. 5, 8-11.) Defendants
state they did not previously receive the interrogatories but will respond by August 7, 2019,
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which is thirty days from the date they were docketed as part of Plaintiff’s reply. (Doc. no.
107, p. 3.)

Furthermore, Defendant argues Plaintiff’s motion to compel as to the

interrogatories should be denied because Plaintiff failed to engage in the required good faith
effort to resolve the discovery dispute. (Id.)
Plaintiff did not mention the May 13th interrogatories prior to his June 20th response.
(See doc. nos. 95, 96, 105.) Plaintiff does not indicate he contacted defense counsel to try to
work out the problem prior to including it in his reply. Thus, belatedly including the
interrogatories in his motion to compel runs afoul of Local Rule 26.5, about which the Court
previously informed Plaintiff:
If Plaintiff wishes to file a motion to compel pursuant to Fed. R. Civ. P. 37, he
should first contact the attorney for the defendants and try to work out the
problem; if Plaintiff proceeds with the motion to compel, he should file a
statement certifying that he has contacted opposing counsel in a good faith
effort to resolve any dispute about discovery. Loc. R. 26.5.
(Doc. no. 13, p. 10.)
The duty-to-confer prerequisite is not an empty formality. Merritt v. Marlin Outdoor
Advert. Ltd., CV 410-053, 2010 WL 3667022, at *4 (S.D. Ga. Sept. 15, 2010). Failure to
include such good faith certification, or to make the requisite good faith effort, amounts to a
failure to comply with Federal Rule 37(a)(1) and Local Rule 26.5 and warrants denial of the
discovery motion. See Holloman v. Mail-Well Corp., 443 F.3d 832, 844 (11th Cir. 2006)
(affirming denial of discovery motion based on “a failure to work with the defendants in
good faith” during discovery process); Haynes v. JPMorgan Chase Bank, N.A., 466 F. App’x
763, 765-66 (11th Cir. 2012) (affirming denial of motion to compel where movant failed to
consult in good faith with opponent before filing motion); see also Layfield v. Bill Heard
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Chevrolet Co., 607 F.2d 1097, 1099 (5th Cir. 1979)2 (holding that failure to comply with the
Local Rules may result in summary denial of a motion).
Because Defendants indicate they will respond to Plaintiff’s interrogatories in a
timely manner, the Court DENIES AS MOOT his motion to compel as to the
interrogatories. Should any dispute remain after Plaintiff considers Defendants’ forthcoming
responses to interrogatories, Plaintiff should first contact defense counsel to attempt to resolve
the dispute before filing a motion with the Court. He must then attach to any subsequent motion
to compel a certification that he made a good faith effort to resolve the dispute with opposing
counsel before filing his motion, quote verbatim each request for production at issue, and include
the specific ground for the motion and reasons assigned as supporting the motion. See Loc. R.
26.5.
III.

CONCLUSION
For the reason set forth above, the Court DENIES Plaintiff’s motion to compel

discovery. (Doc. no. 95.)
SO ORDERED this 22nd day of July, 2019, at Augusta, Georgia.

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions that were handed down
prior to the close of business on September 30, 1981.
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