Clark v. State of Louisiana, et al

Filing 148

ORDER denying 133 MOTION to Compel Entry Upon Land and 146 MOTION to Stay Motion to Compel Entry Upon Land filed by Jeffery C Clark.A Telephone Status Conference set for 8/7/2015 at 02:00 PM before Magistrate Judge Richard L. Bourgeois Jr.. Signed by Magistrate Judge Richard L. Bourgeois, Jr on 8/3/2015. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
JEFFREY C. CLARK

CIVIL ACTION

VERSUS

NO. 00-956-JJB-RLB

STATE OF LOUISIANA, ET AL.

ORDER
Before the court is Plaintiff’s Motion to Stay Motion to Compel Entry Upon Land (R.
Doc. 146) and Plaintiff’s Motion to Compel Entry Upon Land (R. Doc. 133). The foregoing
motions, as well as other discovery motions pending before the court not resolved by this Order, 1
raise issues with regard to the court’s current scheduling order (R. Doc. 125). Accordingly, the
court will briefly discuss the current deadlines and will require the parties to participate in a
status conference for the purpose of modifying the current deadlines.
On September 27, 2012, the court issued a scheduling order bifurcating discovery
between written discovery and depositions. (R. Docs. 66, 67). The deadline to complete written
discovery, including the filing of related motions, March 4, 2013, has expired and has not been
extended by the court. (R. Doc. 66; see R. Doc. 113). In the most recent modification of the
scheduling order, the court ordered that “discovery by way of depositions in this case” must be
completed by July 15, 2015 and dispositive motions must be filed by September 13, 2015. (R.
Doc. 125). The court has not provided deadlines for identifying experts, providing expert
reports, and completing expert discovery.

1

The parties have filed cross-motions concerning the scope of questioning allowed at depositions that
have, as of the date of this Order, already occurred. (R. Docs. 134, 135, and 140). Resolution of those
motions may require the parties to reconvene certain depositions.

On April 17, 2015, Plaintiff identified Dr. LeRoy Riddick as an expert. (R. Doc. 146-3). 2
That same day, Plaintiff served on Defendant, pursuant to Rule 34 of the Federal Rules of Civil
Procedure, his Request for Entry Upon Land for Inspection. (R. Doc. 133-3). Plaintiff requested
that his expert, Dr. Riddick, be allowed entry into certain locations of the Louisiana State
Penitentiary, including the following buildings and areas:
1.

The Education Building at Camp D

2.

The Sallyport at Camp D

3.

Cells at Camp J where Mr. Clark was held after the incident of December 28,
1999.

4.

Administrative or RC Building where any questioning or interrogations of
Mr. Clark took place.

5.

The paths or roads between the various buildings.

(R. Doc. 133-3 at 1). Plaintiff further requested that Dr. Riddick be allowed to inspect, observe,
and document the foregoing areas “with photographs and videotape” and that Plaintiff be
allowed to accompany Dr. Riddick. (R. Doc. 133-3 at 1-2).
On April 30, 2015, defense counsel responded by asking Plaintiff’s counsel, among other
things, to identify Dr. Riddick’s area of expertise and the types of measurements and tools he
intended to use, and to provide further explanation on the basis and relevancy of the request. (R.
Doc. 133-4). On May 6, 2015, Plaintiff’s counsel identified Dr. Riddick as an expert in
pathology and provided the following:
The purpose of the Entry Upon Land is to identify the locations the injuries were
inflicted and to defend against allegations that the injuries were self-inflicted. Mr.
Clarks (sic) beatings occurred at various places around the prison including
between buildings. Dr. Riddick will likely be taking length measurements, and
photographs. To the extent you stipulate that Mr. Clark’s injuries were not selfinflicted, we would consent to waive our right to entry. To the extent you assert
2

Plaintiff represents that Defendants disclosed three expert witnesses on July 9, 2015. (R. Doc. 146-1 at
1).

2

that Mr. Clark’s injuries were self-inflicted, it is necessary for Plaintiff’s expert to
have access to the various locations Mr. Clark occupied following the incident in
order to refute those claims. As any defense witness or expert would have access
to these locations, we find it necessary to have that access as well. Please advise.
(R. Doc. 133-5 at 1-2). Following additional discussions, on June 5, 2015, Defendants agreed to
allow Dr. Riddick to inspect the cell at Camp J where Plaintiff was initially housed (and where
Defendants claim Plaintiff self-mutilated himself after the incident of December 28, 1999) but
otherwise objected to the request as overly broad and irrelevant, and also objected to allowing
Plaintiff accompany Dr. Riddick during the inspection. (R. Doc. 133-11 at 1).
On July 7, 2015, finding Defendants’ responses insufficient, Plaintiff filed his Motion to
Compel Entry Upon Land. (R. Doc. 133). Plaintiff argues that Defendants waived all objections
to his request with the exception of relevancy. (R. Doc. 133-1 at 6-7). The only argument raised
by Plaintiff with regard to relevancy, however, is that “[i]nspection of the premises where the
abuse occurred is directly relevant to the central dispute in the case (i.e. the source of Plaintiff’s
injuries) and will assist in the preparation of the case for trial.” (R. Doc. 133-1 at 6).
On July 28, 2015, Defendants filed their Opposition to Plaintiff’s motion to compel. (R.
Doc. 144). In opposition, Defendants question the relevancy of the requested inspection of the
Education Building and Sallyport at Camp D because the alleged beatings at those locations
occurred over 15 years ago, and there would be no physical evidence remaining at those areas.
(R. Doc. 144 at 3-4). Defendants also question the relevancy of inspecting and measuring the
roads between buildings or the Administrative Building, as there are no allegations of beatings or
injuries at those areas. (R. Doc. 144 at 7). Defendants further argue that the requests are
unreasonably duplicative as Plaintiff has access to his criminal file and Plaintiff is in possession
of photographs of the Education Building within hours after the incident. (R. Doc. 144 at 7-8).

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Finally, Defendants argue that Plaintiff should not be allowed to accompany Dr. Riddick because
the security risk would create an undue burden on Defendants. (R. Doc. 144 at 8).
On July 30, 2015, two days after Defendant’s filed their Opposition, Plaintiff sought to
stay the motion to compel on the basis that his expert, Dr. Riddick, can no longer serve as an
expert witness in this case in light of his failing health. (R. Doc. 146-1 at 1). Plaintiff seeks a
stay of the motion to compel “until he has been able to retain a replacement expert and consult
with that replacement.” (R. Doc. 146-1 at 1). When asked whether Defendants would consent to
such a stay, defense counsel responded that “[a]t this point it does not seem that Plaintiff has an
expert pathologist” and, “[t]herefore, we request that you withdraw the motion to compel entry
upon land because there is no basis for it.” (R. Doc. 146-2 at 1).
Based on the briefing before it, the court questions the relevancy of any inspection at the
Louisiana State Penitentiary with the exception of the cells at Camp J. The court further
questions the need for Plaintiff to accompany his expert at any location within the Louisiana
State Penitentiary.
Although the information sought is factually based, Plaintiff’s request for entry is clearly
premised on the availability of Dr. Riddick as an expert in pathology. Dr. Riddick is no longer
available to Plaintiff as an expert witness, however, and can provide no foundation for the
relevancy of the requested inspection. Staying the motion to compel is pointless because
whatever relevancy Dr. Riddick could identify on behalf of Plaintiff for inspection of areas other
than the cells at Camp J, he is no longer available to conduct such an inspection.
The court will, therefore, deny both of Plaintiff’s motions. The court will grant Plaintiff
leave to refile his motion, if necessary, should a newly identified expert find such an inspection
necessary to conduct such an inspection.

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Furthermore, given that the court has not previously provided deadlines for expert
disclosures and discovery, and that resolution of pending motions concerning deposition
testimony may affect other deadlines, the court finds it prudent to hold a status conference.
For the foregoing reasons,
IT IS ORDERED that Plaintiff’s Motion to Stay Motion to Compel Entry Upon Land
(R. Doc. 146) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Compel Entry Upon Land (R.
Doc. 133) is DENIED. Plaintiff may re-assert his motion, if necessary and merited, after the
identification of an expert in pathology to replace Dr. Riddick.
IT IS FURTHER ORDERED that a telephone status conference is hereby set for
August 7, 2015, at 2:00 p.m. Counsel for Plaintiff shall initiate the conference call to chambers
at 225.389.3602.
Signed in Baton Rouge, Louisiana, on August 3, 2015.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

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