Green v. Hooks et al

Filing 85

ORDER denying 29 Motion for Sanctions; granting in part and denying in part 30 Motion to Compel; granting 40 Motion for Leave to File; granting 42 Motion for Leave to File; granting 44 Motion for Extension of Time to File Response/Reply ; denying 29 Motion to Compel. Responses due by 8/3/2015 for the parties to confer and submit a status report to the Court proposing a new scheduling order. Signed by Magistrate Judge G. R. Smith on 7/16/15. (wwp)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATE SBORO DIVISION
DARIUS ISHUN GREEN,
Plaintiff,
Case: CV614-046
WARDEN BRAD HOOKS,
DEPUTY WARDEN JOHN BROWN,
LIEUTENANT TORIE GRUBBS, and
JOHN DOE,
Defendants.

[ITtiDH

Before the Court in this 42 U.S.C. § 1983 case are plaintiff Darius
Green's two motions to compel and for sanctions, docs. 29 & 30; his'
motions to depose inmates Joel Reid and Darryl Ricard, docs. 40 & 42;
and. a Consent Motion to extend the time within which defendants could
respond to the first compel/sanctions motion. Doe. 44•2
Some background: Green, a transgendered ex-inmate of Rogers

1

Green identifies as a female but remains physiologically male.

Since the filing of the motion for extension, the GDOC has filed its response brief
over no objection. Doc. 45. The motion therefore is GRANTED. Doc. 44.

2

State Prison (RSP), claims that he begged to be placed into protective
custody after fellow-inmate Darryl Ricard repeatedly sexually assaulted
him. Doe. 1 at 1-2. According to Green, Lieutenant Tone Grubbs had
officer "John Doe" (real name unknown at this juncture) place Green
into protective custody with Ricard, who then raped him. Id. at 2, 13-14.
Green then filed this action against Grubbs and several other prison
officials. Doe. 1. The district judge has since resolved six motions to
dismiss filed by various groups of defendants. See does. 68 & 78.
Green moves the Court to compel a non-party, the Georgia
Department of Corrections (GDOC), to provide discovery. Does. 29 & 30.
He claims that the GDOC's Fed. R. Civ. P. 30(b)(6) representative,
Annettia Toby, was woefully unprepared and thus effectively failed to
appear for the GDOC's deposition. Doc. 29. He also complains that the
GDOC has failed to provide adequate response to some requests for
production. Doe. 30.
I. 30(b)(6) DEPOSITION
Green asserts that Toby, Deputy Warden of Security at RSP, was
either unprepared or unable to provide knowledgeable answers to the
' Resolving the motions to dismiss eliminated Green's "failure to intervene" claims
but left the bulk of this case intact, including the core § 1983 and § 1988 claims. See
docs. 68 and 78.
2

following topics:
1. The identity, including the full name, of the department of
corrections' employee (correctional guard or otherwise) who
transported/escorted Plaintiff to the cell/room Plaintiff was
placed in pursuant to Plaintiffs request for protective custody
while at Rogers State Prison. If more than one person escorted
Plaintiff to the subject cell/room then make sure you provide
people who can testify about the identity, including the full
name, of each person who transported/escorted Plaintiff to the
cell/room Plaintiff was placed in pursuant to Plaintiffs request
for protective custody while at Rogers State Prison;
2. The full name of the DOC employee who allowed Darryl Ricard
(GDC # 1176425) to enter the same cell/room that Plaintiff was
placed in pursuant to Plaintiff's request for protective custody
while at Rogers State Prison; and
3. The current location of Darius Green and Darryl Ricard's
isolation checklists. 4 I am referring to the checklist [s] that are
represented by Ex. 1 to this subpoena. There should be a
checklist with respect to the dates of September 21-22, 2012. I
will be asking questions about the past and current location of
those checklists and also about what happened to them.
Doc. 28-1 at 2-3 (subpoena) (footnote added); see doe. 29 at 11-13 (motion
to compel). He asks the Court to order "as a matter of established fact[]
that the subject checklists are missing," and to preclude the GDOC or
any defendants from introducing evidence implying otherwise. Doe. 29
at 14. He also wants the GDOC to prepare a second designee who knows
all security personnel working on the dates in question and "can testify
An isolation checklist is a security log kept of inmates while they are held in
protective custody. Doc. 28 at 5.
3

to topic areas numbers 1 & 2" of the subpoena. Id. Finally, he wants the
GDOC to bear the expenses of the second deposition and to appear at his
attorney's law office. Id.
During her deposition, Toby insisted that she investigated all three
topics as best she could. Doc. 28 at 4-7. She reviewed several documents
emailed to her, along with the incident report regarding Green's rape by
Ricard, and she spoke with staff members who were listed on the
incident report. Id. at 4. Specifically, she contacted Wayne Jordan, Tone
Grubbs, and Sergeant Brad Westberry. Id. at 4-7. Grubbs was not very
forthcoming, stating only that he remembered the incident "and
something about it's an ongoing case." Id. at 7. Westberry stated that
he did not recall the incident. Id. at 7. What Jordan knew is unclear
since Green's attorney never questioned Toby about this.

See doc. 28.

Despite her efforts, Toby could not locate officer Benjamin Mourad
because he no longer works at RSP.

Id.

In other words, her

investigation was largely fruitless.
Toby also stated that she was unable to find out who actually
transported Green to protective custody or who placed Ricard into her
cell. Id. at 4. And although the GDOC provided Green with "isolation

checklists" from days before and after the incident, Toby could not find
Ricard's or Green's checklists covering the night of the rape despite
engaging additional prison personnel to help her search. Id. at 5-7. The
GDOC records Toby did find only showed that Green alleged in a
grievance that Grubbs put him in the cell. Id. at 5.
The missing isolation checklists are just that -- missing. The Court
need not issue an "order" to that effect as Green requests. Nor will the
Court infer nefarious conduct by the GDOC (such as destroying the
checklists) absent evidence, which plaintiff fails to provide. In any case,
"[ajbsolute perfection is not required of a 30(b)(6) witness. The mere
fact that a designee could not answer every question on a certain topic
does not necessarily mean that the [organization] failed to comply with
its obligation." See QBE Ins. Corp. v. Jorda Enters., 277 F.R.D. 676, 690
(S.D. Fla. 2012).
Here, the GDOC provided RSP's Deputy Warden of Security as its
Rule 30(b)(6) deponent. She prepared for the deposition but uncovered
little responsive information during her investigation. With less than a
week's notice, doc 28-1 at 1, she conducted a reasonable investigation by
interviewing Grubbs, Jordan, and Westberry, reviewing the available

documents on the incident, and making a good faith effort to locate
Ricard's and Green's checklists. See Wilson v. Lackner, 228 F.R.D. 524,
528 (D. Md. 2005) (Rule 30(b)(6) does not require "absolute perfection in
preparation," just "a good faith effort . . . to find out the re1evant facts -to collect information, review documents, and interview employees with
personal knowledge"). Plaintiff, moreover, has not offered any
persuasive reason to believe that forcing a second 30(b)(6) deposition
would yield a different result.
The Court understands Green's frustration, but is not convinced
that the GDOC "willfully obstructed discovery by providing a 30(b)(6)
deponent who was woefully under-prepared" and thus failed to appear.
Doc. 29 at 8, 13 (emphasis in original, boldface omitted). The Court
therefore DENIES plaintiff's motion to compel the GDOC to provide a
second 30(b)(6) deponent and to sanction the GDOC for failing to appear
at its noticed deposition. Doc. 29. It also declines to enter an order
precluding "any Defendants in this action from introducing evidence that
even implies" that the security checklists exist. Doc. 29 at 14. Toby's
responses are binding only upon the GDOC, not upon the named
defendants. Moreover,

[w]hen [an organization's] designee legitimately lacks the ability to
answer relevant questions on listed topics and the [organization]
cannot better prepare that witness or obtain an adequate
substitute, then the "we-don't-know" response can be binding on
the [organization] and prohibit it from offering evidence at trial on
those points. Phrased differently, the lack of knowledge answer is
itself an answer which will bind the [organization] at trial.

QBE Ins. Corp., 277 F.R.D. at 690. If the GDOC attempts to provide
testimony or evidence at trial which differs from the answers provided
during Toby's deposition, plaintiff can object on that basis.
II. RESPONSES TO REQUESTS FOR PRODUCTION
Plaintiff also moves to compel discovery responses from the GDOC.
Doc. 30. He contends the GDOC has, without sufficient justification,
failed to respond to eight requests for production.' Doe. 30.
In request 3, plaintiff seeks "[a]ll video surveillance that captures
the image of Darius Ishun Green from the date Green entered [RSP]
through the date that Green left [RSP]." Doe. 30 at 3. In its written
objections, the GDOC argued that "production of any such videos, if they
exist, is overly broad and unduly burdensome because it would require
the viewing of every video depicting any area of [RSP] for a broad period
Initially, he stated that the GDOC failed to respond adequately to ten separate
discovery requests. Doe. 30 at 3-18 (requests 3, 5, 6, 7, 8, 9, 15, 16, 18, & 20). In his
reply to the GDOC's response, however, he acknowledges that the GDOC has
satisfied requests 5 and 18. Doe. 56 at 2-7.
7

of time." Id. at 4. Too, says the GDOC, request 3 "would depict areas of
the prison and persons in the prison not relevant to this action." Doc. 48
at 6. Finally, it argues that Green "has failed to show how such video
surveillance would lead to information that would prove his claim that
the specific actions of the actual Defendants resulted in Plaintiff's
alleged injuries." Doc. 48 at 6.
The Court agrees with the GDOC that this request is, in the main,
overbroad and unduly burdensome, and, further, that Green has failed to
explain how it would lead to admissible evidence. Doc. 48 at 6. Green
spent years at RSP and was only one of hundreds of inmates at the
facility. Assuming that the GDOC even kept all video images during a
five-year period, locating all images of plaintiff while at RSP would
require the GDOC to review literally tens of thousands of hours of tape
in a fishing expedition for potentially incriminating footage. 6 Doc. 30 at
3. Much of the footage of Green -- e.g., exercising, eating meals, walking
from one place to another within RSP in, for example, 2009 -- also would
undoubtedly be irrelevant to this case. Compounding the request's
oppressive weight, Green offers nothing more than general argument
6

For that matter, nothing in the record -- not evidence, not even an allegation -indicates that the GDOC keeps video recordings for years on end. If such recordings
do exist, Green's counsel may ask to conduct his own review of those tapes.
8

that the evidence "may depict some of the allegations made by Green in
this matter." Doe. 30 at 4 (emphasis added). That's inadequate
justification to compel a full response to request 3.

See Harrison v.

Culliver, 746 F.3d 1288, 1297 (11th Cir. 2014) (in light of its broad
discretion to compel or deny discovery, district court did not err by
denying inmate's motion to compel even though "the additional evidence
[plaintiff] sought may have been relevant to his claims"); McBride v.

Rivers, 170 F. App'x 648, 659-60 (11th Cir. 2006) (affirming district
court's refusal to compel production of all grievances filed by inmates
against individual defendants where prisoner plaintiff only "generally
argu[ed] that th[e] evidence would have established defendant's
subjective intent").
That said, any video depicting Green's move to protective custody
on the night that Ricard raped him would (1) be relevant

, 7

and (2)

Fed. R. Civ. P. 26 provides that "[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's claim or defense." Fed. R. Civ. P.
26(b)(1). "Relevant information need not be admissible at the trial if the discovery
appears reasonably calculated to lead to the discovery of admissible evidence."
Id.; Avalon Risk Mgmt. Ins. Agency v. Taylor, 2014 WL 808156 at * 3 (S.D. Fla. Feb.
28, 2014). "The standard for what constitutes relevant evidence [thus] is a low one."
United States v. Tinoco, 304 F.3d 1088, 1120 (11th Cir. 2002). Even so, what is pled
in the complaint drives the analysis. Downing v. Billy Barnes Enters., 2013 WL
1857113 at * 3 (S.D. Ala. May 2, 2013). Here, Green pled specific facts about Ricard's
sexual assault, including the date and circumstances surrounding it. See doc. 1 at 1418, CV614-103.
9

reasonably accessible to the GDOC. He alleges that Lt. Grubbs directed
John Doe to move him into a cell with Ricard the evening of September
21, 2012, and that Ricard raped him into the morning of September 22.
Doe. 1 at 17-18, CV614-103. Assuming that cell is visible to a camera
(and that the GDOC's retention policy and technological limitations have
not combined to make video from nearly three years ago unavailable),
locating a video made on a specific date should not impose an undue
burden on the GDOC.
The GDOC states that it "does not appear that the [GDOC] has
responsive items in its possession." Doe. 48 at 6 (emphasis added). That
equivocation prevents the Court from ascertaining whether the GDOC
made reasonable efforts to locate video of Green's transfer to protective
custody. The Court therefore GRANTS in part and DENIES in part
Green's motion to compel the production of video evidence in response to
request 3. Doe. 30. The GDOC must produce all available video
depicting Green's move to protective custody. If no such video exists, it
must certify that it meaningfully reviewed the available video
surveillance for images of Green's transfer to protective custody, yet
found nothing relevant. In light of Green's inadequate justification and
10

the outsized review costs for a complete response to request 3, however,
it need not conduct an exhaustive review of all video made while Green
was housed at RSP.
Requests 6 through 8 pertain to "broken or malfunctioning" locks
at RSP and security audits from October 1, 2007 through the time Green
left RSP in late September 2012.8 The GDOC has produced summaries
of the security audits, doe. 48 at 7, but plaintiff insists those are
inadequate. Doe. 56 at 3. According to Green, the GDOC should produce
the full audits the summaries rely upon, in unredacted form, and should
also produce any work orders showing whether locks were repaired or
replaced.

Id.

The GDOC contends that any information about

"malfunctioning locks" is irrelevant because the complaint only
references "cell doors not secured," but never mentions or alleges
anything about "malfunctioning locks." Doe. 48 at 8.
Whether or not it rises to the level of "semantical games," doe. 56,
8

In request 6, plaintiff seeks "[a]ll documents, including security audits, notices,
after action reports, letters, and emails (whether prepared by GDC employees or
anyone else), referencing broken or malfunctioning locks at Rogers State Prison, or
efforts to repair such locks at Rogers State Prison, dated from October 1, 2007
through the date that Darius Green left Rogers State Prison (late September 2012)."
Doc. 30 at 5. Request 7 asks for "[a]11 documents pertaining to or referencing any
and all security audits at Rogers State Prison" during the same period. Id. at 8. And
in request 8, Green seeks "[a]11 grievances and complaints written by any officer or
employee at Rogers State Prison" during the same time frame "regarding or
referencing broken or malfunctioning locks at Rogers State Prison." Id. at 9.
11

at 4, the GDOC's distinction between "malfunctioning" and "not secure"
is, for purposes of this motion, one without a difference. Plaintiffs
claims are, at their core, about unsafe prison conditions and defendants'
alleged deliberate indifference to the same. Specifically, he claims that
RSP had chronic security issues and that defendants knew of those
issues, yet did nothing. See, e.g., doe. 1 at 11-12. If documents exist
showing security issues (malfunctioning locks, etc.) with cells holding
plaintiff or Ricard, they are indubitably relevant. Documents evidencing
larger security concerns, like a wholesale breakdown in the prison's
ability to lock any dormitories, also are relevant because they may show
prison administrators' awareness of RSP's systemic security flaws. Put
differently (and simply), the GDOC's relevancy objection to requests 6
through 8 lacks merit. Plaintiffs motion to compel production of
documents responsive to those requests therefore is GRANTED. The
GDOC must produce documents, including the security audits
underlying the summaries already produced, responsive to requests 6
through 8. If the GDOC has security concerns about the production of
specific audits, it can move for a protective order on those grounds.

12

Request 9 asks for "[a]ll grievances and complaints written by any
officer or employee at [RSP]" from October 1, 2007 until plaintiffs
release from RSP "regarding or referencing any security issue at [RSP]."
Doc. 30 at 11. In its written responses to plaintiffs requests for
production, the GDOC objected because the request (1) is overly broad
and unduly burdensome by seeking information for a time frame greater
than five years; (2) is unduly vague "in that it potentially includes any
document written by any officer or employee of [RSP;]" (3) seeks
irrelevant information; and (4) seeks information that would compromise
the security of the RSP facility. Doc. 30 at 11. In its brief opposing
Green's motion to compel, however, the GDOC simply states that "safety
concerns 7)9 is too broad a subject matter and thus not relevant to
plaintiffs specific claims. Doc. 48 at 9.
The Court agrees that request 9 is overbroad. A prison's purpose is
to securely house criminals, most of whom have no desire to be
incarcerated. Issues with security are bound to arise. Many of those

The GDOC's response brief mistakenly includes request 10, which concerns "safety
issues," with its resistance to request 9, which addresses "security issues." Although
the brief refers to "safety issues," the Court will treat that as encompassing
"security," since the GDOC's response lumped request nos. 9 and 10 together
without distinguishing the two. Moreover, any objection to request 10 is irrelevant
since the motion to compel only involves request 9.
13

issues may well have nothing to do with the security issues that allegedly
enabled Green's rape. Persistent issues with perimeter security, for
instance, although an issue that could prompt complaints by corrections
officers and thus arguably falls within request 9, have nothing to do with
any of the alleged issues leading to Green's rape and so would be
irrelevant to this case.
What is relevant, however, are "grievances and complaints written
by" RSP officers and employees, doc. 30 at 11, that address issues like
faulty locks, unescorted inmates being allowed in other inmate's cells, or
other rapes. Moreover, reviewing RSP officer and employee complaints
about security issues is not so burdensome, at least considering GDOC's
representations to date. The Court therefore GRANTS in part the
motion to compel. The GDOC must produce any RSP employee or officer
complaints from the last five years that concern security issues
implicated by plaintiff's claims, including (1) faulty locks; (2) free
roaming inmates; (3) rapes and sexual assaults; and (4) issues with
transportation to protective custody. It may omit all others.
Requests .15, 16, and 20 seek information about sexual assaults at

14

RSP during the time Green was housed there.' ° The GDOC created
spreadsheets covering every reported sexual assault during that time
period but did not identify whether the reporting inmates were
transgendered or transsexual. Doc. 48 at 9-11. It represents that it has
no way of knowing. Doc. 48-2 at 2-3. Plaintiff insists that the GDOC
should identify transgender and transsexual inmates so that they may be
deposed about their experiences while detained at RSP. Doc. 56 at 5-6.
It also states that the GDOC has failed to provide incident reports that
corresponded to the sexual assaults identified in the spreadsheet. Id.
The Court accepts that the GDOC has no way of sorting the reports
based upon the victims' gender identity. Nor does Green show that the
GDOC is lying or otherwise misleading him and this Court in its
response. Hence, Green's motion to compel the GDOC to sort incidents
based upon such characteristics is DENIED. Sexual incident reports
generally, however, are highly relevant to plaintiffs claim, since they
might help establish that RSP's administrators knowingly turned a blind
eye to prison sexual assaults in general. That said, the reports no doubt
'° In request 15, Green asks for "[a]11 complaints of sexual assault made by
transgender inmates" at RSP during the time he was imprisoned there. Doc. 30 at
13. Request 16 ask for the same information with regards to transsexual inmates.
Id. at 14. Request 20 asks for "[a] copy of all incident reports of any alleged or actual
sexual assault made" while Green was at RSP. Id. at 17.
15

implicate both institutional security considerations and inmate privacy
issues. Given those concerns, the Court GRANTS plaintiff's motion to
compel their production, but the GDOC may redact them appropriately."
III. MOTIONS TO DEPOSE JOEL REID AND DARRYL
RICARD
Green also moves to depose two prisoners, Joel Reid and Darryl
Ricard, at their respective places of imprisonment. Does. 40 & 42. Reid
"provided a declaration in this ease that bears on Plaintiff's claims," doe.
40 at 1, while Ricard is the alleged rapist. Doe. 42 at 2. In their joint
status report, both parties stated they would move to depose incarcerated
individuals, doe. 32 at 8, though defendants have yet to do so.
Defendants also have failed to respond to plaintiff's motions for leave to
depose, and so they stand unopposed. See L.R. 7.5 ("Failure to respond
within the applicable time period shall indicate that there is no
opposition to a motion."). Accordingly, the Court GRANTS both

" The GDOC must not over-redact here. Legitimate institutional security concerns
should not become a catch-all excuse for turning relevant, discoverable documents
into useless pieces of paper. Just as the GDOC may move for a protective order upon
showing good cause, Green may move the Court for an Order directing the GDOC to
release the identity of anyone identified in a particular report (e.g., upon a showing
that they likely will have information reasonably likely to lead to admissible evidence
in this case). The parties are reminded, however, that they must first confer before
burdening this Court with requests for additional judicial assistance. See Local Rule
26.5(c).
16

motions. Does. 40 & 42.
IV. CONCLUSION
The Court DENIES Green's motion to compel a second Rule
30(b)(6) witness and sanction the GDOC for failing to appear at the first
deposition. Doe. 29. The consent motion for extension of time to
respond, doe. 44, and both motions for leave to depose inmates, are
GRANTED. Does. 40 & 42.
Green's motion to compel the production of documents and other
tangible items is GRANTED in part and DENIED in part. Doe. 30. In
response to request 3, the GDOC must produce all videos depicting
Green's move to protective custody on September 21, 2012, but nothing
more. For requests 6 through 8, the GDOC must produce all responsive
documents in its possession, custody, or control. For request 9, the
GDOC must produce any officer or employee complaints about security
issues related to Green's claims, including (1) faulty locks; (2) free
roaming inmates; (3) rapes and sexual assaults; and (4) security issues
arising from transportation to protective custody. Although the Court
DENIES Green's request to compel the GDOC to sort its spreadsheet of
reported sexual assaults by gender, it GRANTS his motion to compel
17

production of all incident reports responsive to request 20. Given
security and privacy concerns, however, the GDOC may redact those
reports to protect the identities of inmates involved and institutional
security concerns (if necessary, plaintiff may move the Court for goodcause disclosure of same). The GDOC shall make all Court-ordered
productions within 30 days of this Order. Finally, within 10 days of this
Order, the parties shall confer and submit a status report to the Court
proposing a new scheduling order that takes into account this Order's
required productions, the two inmate depositions, and any other
outstanding discovery.
SO ORDERED this /day of July, 2015.

U?dTE61SIATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

W
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