Powell v. Scott et al

Filing 46

ORDER denying 33 Motion to Compel; denying 38 Motion to Compel; denying 39 Motion to produce address for defendant Jimmy McDuffie. Signed by Magistrate Judge G. R. Smith on 12/3/2012. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
STEPHEN KEITH POWELL,
Plaintiff,
v.

Case No. CV412-004

INVESTIGATOR JEREMY SCOTT,
EFFINGHAM COUNTY SHERIFF’S
DEPARTMENT, POLICE CHIEF
MIKE BOHHANON, CITY OF
RINCOLN, INVESTIGATOR
DAVID EHSANIPOOR, and
INVESTIGATOR MASON
GALLOWAY ,
Defendants.

ORDER
Over the course of the proceedings in this 42 U.S.C. § 1983 civil
rights case, plaintiff Stephen Keith Powell has filed three motions to
compel defendants to respond to certain discovery requests. (Docs. 17,
33, & 38.) On May 2, 2012, the Court denied his first motion since he
had failed to accompany it with “a certification that he ‘has in good faith
conferred or attempted to confer with other affected parties in an effort
to resolve the dispute without court action.’ Fed. R. Civ. P. 26(c).” (Doc.
20 at 2.) As the Court explained in that order:

Discovery is intended to be a self-executing, extrajudicial exercise
that requires court intervention only infrequently. This
overarching policy of the federal discovery rules rests upon the
assumption that litigants, and the attorneys who represent them,
are reasonable, cooperative people who understand that the scope
of discovery is broad, see Fed. R. Civ. P. 26(b), and that a party who
is derelict in his duty to provide discovery faces swift and certain
sanctions. See Fed. R. Civ. P. 26(g), 37(a)(5). Plaintiff, therefore,
must attempt to resolve his discovery dispute with the defendants,
and certify that he has done so, before he seeks to involve the Court
in that dispute.
(Doc. 20 at 2-3.) Despite this clear mandate, which is reiterated in both
Fed. R. Civ. P. 37(a)(1) and S.D. Ga. LR 26.5, Powell insists in his latest
motions to compel that he should be excused from making a certification
simply because defendants objected to his discovery requests. (Doc. 33 at
5; doc. 38 at 4.) Reaching such a result would entirely undermine the
purpose of the rule. Hence, Powell’s motions to compel (docs. 33 & 38)
are DENIED .
Next, Powell moves for defendant Jimmy McDuffie to produce the
address of defendant Mason Galloway. 1 (Doc. 39.) The Court has
already ordered the Marshal to perfect service upon Mr. Galloway (doc.

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Galloway was initially listed as a John Doe defendant, but in the course of
discovery Powell learned his identity. ( See doc. 34.) He was added to the case in
place of “John Doe” on September 24, 2012. ( Id. )
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34), but it also instructed that the Marshal first contact defense counsel
to inquire whether they would accept service. ( Id. at 2, n.2.) Defense
counsel represented that Galloway had left the Effingham County
Sheriff’s Department and that they were not presently engaged to
represent him. (Doc. 36 at 2.) They also explained that they had no
contact with him and could not accept service on his behalf. ( Id. )
Shortly thereafter, however, Galloway returned to Effingham “for a jobrelated purpose, and Sheriff McDuffie was able to get” his address. (Doc.
41.) Defense counsel have provided it in response to Powell’s motion.
(Id. ) Powell’s motion is thus DENIED because defendant McDuffie’s
response has mooted it. The Clerk, meanwhile, is DIRECTED to
forward a copy of this Order to the Marshal so that he may complete
service upon Mason Galloway at 4623 N.E. 15 Terrace, Gainesville, FL
36509.

See Fed. R. Civ. P. 4(c)(3) (tasking the Marshal with service of

process in in forma pauperis cases).

SO ORDERED this 3rd day of December, 2012.
d)liW
UNiTED STE[ES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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