Henderson v. Turner et al

Filing 129

ORDER denying 109 Motion for Reconsideration re 105 Order on Motion to Compel. (CLM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
LATESHA HENDERSON, ET AL.

CIVIL ACTION

VERSUS

NO: 11-0039

JOE TURNER, ET AL.

SECTION: “C” (4)
ORDER

Before the Court is Plaintiffs, Latesha and Calvin Earl Henderson’s, (the “Hendersons”)
Plaintiffs’ Motion Seeking Reconsideration of Magistrate Judge Ruling “Order” [105] (R. Doc.
109), seeking reconsideration of the Court’s Order regarding Plaintiffs’ Motion to Compel (R.
Doc. 34).1 The motion is unopposed. The motion was noticed for submission on July 11, 2012, and
was subsequently set for hearing on the briefs.
The underlying Motion had been filed by the Hendersons, and sought an Order from this
Court requiring Defendants State of Louisiana Department of Public Safety and Corrections, Major
Joseph Kirby Turner, (“Turner”), and Master Sergeant, Bryan Richard Covington, (“Covington”),
(collectively “Defendants”), to produce the personnel files for Defendants Turner and Covington.2
The Hendersons also sought attorney’s fees and costs. Defendants opposed that motion. (R. Docs.

1

Although the docket sheet lists this Motion as “Second Motion to Compel,” the Court here uses the title given
to the document by the Hendersons in the body of R. Doc. 34.
2

The Hendersons’ motion initially requested the Court require Defendants to produce personnel files for Turner,
Covington, Colonel John Smith, and Sergeant Owens. However, since the filing of the motion, Defendants Smith and
Owens have been terminated from the case. (R. Doc. 49.) Thus, the only personnel files at issue are those of Turner
and Covington.

39, 52.) The motion was deferred, in part, so that the Court could review relevant deposition
testimony and conduct an in camera review the personnel files at issue.3
I.

Background
A.

The Hendersons’ Allegations

This wrongful death and survival action is the result of the death of the Hendersons’ father,
Calvin Earl Dawkins (“Dawkins”), at the Dixon Correctional Institute in Jackson, Louisiana. (R.
Doc. 7, p. 1).4 The Hendersons allege that on or about September 28, 2010, Dawkins was sent to
the Prison Infirmary for dialysis or similar medical treatment. Id. at 6. The Hendersons further
allege that Dawkins was denied proper medical treatment at the Infirmary. Id. After Dawkins
allegedly used inappropriate language in the presence of a nurse, Dawkins was allegedly first
restrained and then severely beaten. Id.
The Hendersons further allege that as a result of both the beating and due to the lack of
medical care, Dawkins allegedly lost oxygen to his brain for a sufficient period of time to render him
in a near vegetative state; after surviving on life support for several days, he died on October 6,
2012. Id. The Hendersons further allege that as a result of the death Defendants are liable to them

3

The instant motion was heard with oral argument on March 28, 2012. (R. Doc. 44.) During the hearing on
the matter, the Court explained the difficulty in analyzing the motion, and the personnel files submitted to the Court for
in camera review, without additional facts related to the incident and copies of each parties’ deposition testimony.
Accordingly, the Court permitted the parties to supplement their written submissions to the Court, and continued and
re-set the hearing date to April 11, 2012. Subsequently, the Hendersons sought a two-week extension of the deadlines,
which was denied by the Court. (R. Doc. 46.) Instead, the Court granted the parties a one-week extension, and
continued and re-set the hearing date to April 18, 2012. (R. Doc. 46.)
4

The instant case was filed in the State of Louisiana and duly removed to the federal court. Although the
Hendersons’ Complaint has been duly amended twice (R. Docs. 7, 118), the Second Amended Complaint did not repeat
the allegations in the Hendersons’ Amended Complaint, but only alleged that both Latesha and Calvin Henderson were
biologically related to Dawkins. (R. Doc. 118, pp. 1-2). The Hendersons’ Amended Complaint did not attach the petition
originally filed in state court, but instead brought all of its allegations in the body of R. Doc. 7.
2

for wrongful death pursuant to 28 U.S.C. § 1988 and LA. CIV. CODE ANN. art. 2315.2 (Count 1),5
as well as in a survival action pursuant to 28 U.S.C. § 1988 and LA. CIV. CODE ANN. art. 2315.1
(Count 2). Id. at 8. The Hendersons further allege that Defendants violated Dawkins’ civil rights,
in violation of the Civil Rights Act, 42 U.S.C. § 1983 (Count 3). Id. at pp. 8-9.
B.

The Court’s Order Regarding the Hendersons’ Interrogatory Requests

On June 12, 2012, the Court issued an Order granting the Hendersons’ Motion to Compel
in part and denying it in part. (R. Doc. 105).
As to Turner, the Court found that the in camera review of the personnel files revealed
limited documents that were relevant to the claims or defenses of the parties; these limited
documents included those related to training courses taken and/or facilitated by Turner, including
training course on “use of force” and “safety” - specifically, his “DPS&C Corrections Services
Capped Training - Employee Transcript[s]” for the years 1996 through 2004. Id. at 7-8. The Court
ordered those documents to be produced to the Hendersons. The Court’s Order required Defendants
to produce Turner’s “DPS&C Corrections Services Capped Training-Employee Transcript[s]” for
the years 1996 through 2004 no later than ten (10) days from the date of this order. Id at 10.
As to Covington, who the Hendersons accuse of disregarding Dawkins’ health, the Court
found that after reviewing Covington’s files in camera, it could not find any documents relevant to
the Hendersons’ claims that they might be relevant to show Covington’s history of other similar
instances where these same guards showed a callous indifference to the serious medical needs of an
inmate. Id. at 9-10. The Court’s Order stated that the Henderson’s request for Covington’s

5

The “Counts” are not numbered or named as “Counts” in the Hendersons’ Amended Complaint. However,
the Court here designates them as such for the sake of simplicity.
3

personnel file documents was denied. Id.6
D.

The Hendersons’ Motion to Reconsider

On June 18, 2012, the Hendersons filed the instant motion, which is unopposed.7 In their
motion, they request that the Court reconsider its prior decision pursuant to 28 U.S.C. § 636(a) as
the prior decision was clearly erroneous or contrary to law. (R. Doc. 109, p. 1). The Hendersons
argue that they will be offering testimony of several inmates for whom Defendants possess the entire
Master Prison file to attach the credibility of the Plaintiffs’ inmate witnesses. (R. Doc. 109-2, p. 2).
The Hendersons further argue that although Officer Turner testified that he had been written up for
at least one serious disciplinary matter and at least on complaint by a fellow employee for yelling,
the Hendersons are not being allowed his entire personnel file. Id. The Hendersons further argue
that it does not appear that the entire file was given to the Magistrate Judge for review. Id. at 1-2.
The Hendersons further argue that the Magistrate Judge has not compelled production in camera,
because the Magistrate found that there was little to call to question the credibility of Officers Turner
or Covington or to challenge the testimony given either at deposition or as indicated by the
circumstances. Id. at 2. However, the Hendersons argue that credibility is an issue at trial. Id.
The Hendersons further argue that Defendants produced the “entire personnel file,” but
instead disciplinary portions of the guards’ files were not produced for in camera review. They

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The Court further ordered that Defendants shall pick up the personnel documents submitted to the Court for
in camera review no later than ten (10) days from the date of this order. If Defendants fail to pick up the documents or
contact the Court by the deadline, the Court will shred the documents. Id. This ruling has gone unchallenged.
7

As noted above, the instant motion to reconsider is unopposed, although the underlying Motion to Compel was
opposed. (R. Docs. 39, 52). In support of their opposition to the underlying motion, Defendants argued that the
personnel files were irrelevant and contained impermissible character evidence. (R. Doc. 39, pp. 1-2). In a subsequent
opposition, Defendants argued that Turner and Covington had a very high privacy right to their personnel files, given
that both worked in the prison system and exposure of their personal information, which includes information regarding
their families, could occur to persons who had already been adjudicated guilty of crimes and might harbor personal
animus to either Turner, Covington, or both. (R .Doc. 52, p. 3).
4

further argue that “personnel file” is a very broad term that encompasses all of the personal files of
the employee. Id.
II.

Standard of Review
No Federal Rule of Civil Procedure (“Rule”) “provide[s] for a ‘Motion for Reconsideration’

but such motions may properly be considered either a Rule 59(e) motion to alter or amend judgment
or a Rule 60(b) motion for relief from judgment.” Hamilton Plaintiffs v. Williams Plaintiffs, 147
F.3d 367, 371 n.10 (5th Cir. 1998). Fifth Circuit courts have adjudicated motions to reconsider
which are filed within 10 days of the Court’s Order under Federal Rule of Civil Procedure (“Rule”)
59(e). Lavespere v. Niagra Machine & Tools Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990),
aborgated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069, 1076 & n.14 (5th Cir.
1994); Bass v. United States Dep’t of Agriculture, 211 F.3d 959, 962 (5th Cir. 2000). Because the
Hendersons filed the instant motion to reconsider six days after the Court issued its Order in
connection with the underlying motion, they are entitled to review under Rule 59(e).
Rule 59(e) states that “A motion to alter or amend a judgment must be filed no later than 28
days after the entry of the judgment.” Id. Reconsideration of judgments under Rule 59(e) is an
extraordinary remedy, which should be used sparingly. See Templet v. HydroChem Inc., 367 F.3d
473, 479-480 (5th Cir. 2004). “Because [59(e)] motions are disfavored, a movant of a . . . motion
to reconsider must show . . . the need to correct a clear error of law or prevent manifest injustice.”
Wanzer v. Pfeil, 2006 WL 2548503, at *2 (W.D. Tex. Aug. 8, 2006); see Voisin v. Tetra
Technologies, Inc., 2010 WL 3943522, at *3 (E.D. La. Oct. 6, 2010) (Roby, M.J.) (citing Voisin).

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III.

Analysis
The Hendersons do not appear to limit their Motion to Reconsider to those documents which

the Court in fact allowed production, but merely that the “entire” personnel file was not produced.
(R. Doc. 109, pp. 2-3). To the extent that the Hendersons’ Motion was not limited, it is denied on
the grounds that it would be counterintuitive for the Hendersons to request reconsideration of any
portion of the Court’s Order which they actually prevailed on. Therefore, the Court limits this
Motion for Reconsideration to those portions of the Court’s Order to which the Hendersons have
actually objected on grounds that they did not receive documents to which they claim entitlement.
A.

Failure to Review Entire Personnel File

In support of their Motion, the Hendersons argue that the Court erred as a matter of law in
failing to compel the entire personnel file for in camera review. (R. Doc. 109, p. 2). They argue
that “[i]t does not appear [from] the Order that the Defendants produced the entire personnel file and
instead they produced training certifications and other inane benefit materials. The disciplinary
portions of the files were not produced for in camera review.” Id. (emphasis added) The
Hendersons take this position not because they know whether the documents were in fact produced,
but because “[i]f the disciplinary portions were produced, there is no mention of it in the Order.”
Id. (emphasis in original).
The Hendersons’ argument reflects a flawed reading of the plain language of the Court’s
Order. The Order states,“[t]he Court’s in camera review of the personnel files. . . .” (R. Doc. 105,
p. 10). This language does not indicate that only portions of the files (plural) were provided to the
Court for review. The Court also indicated, in the course of its Order, which documents from the
personnel files it deemed relevant to the Henderson’s claims, and ordered them produced. While

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the Court did not list every specific document it received and reviewed, the Hendersons cite no
authority for the proposition that a Court must provide an inventory of every document it receives
for inspection in an Order following an in camera review. Indeed, such a rule would controvert the
purpose of an in camera review, which is designed in part to shield non-relevant, but potentially
sensitive, documents from disclosure in the public record. See Montee v. Imperial Palace of
Mississippi, 2006 WL 2042346, at *1 (S.D. Miss. July 20, 2006) (noting that “the Court’s in camera
review . . . served as a protection for [a party’s] privacy interests.”).
Indeed, blanket production would in fact contravene the requirements of Rule 26(b)(1),
which allows discovery of evidence of information not privileged which is relevant to the claim or
defense of any party. Id. To prevail on a motion to compel, a party must indicate how the evidence
sought relates to the claim asserted. See McCann v. Bay Ship Management Inc., 2000 WL 1838714,
at *1 (E.D. La. Dec. 8, 2000) (Roby, M.J.) (declining to grant a motion to compel production or in
camera review of a personnel file, where the movant failed to provide evidence of indicating a lack
of credibility). The fact that all discovery must be “relevant” naturally circumscribes the extent of
a party’s entitlement to that information. See Coughlin v. Lee, 946 F.2d 1152, 1159 (5th Cir. 1991)
(finding that in response of request for personnel files in Title VII case, “all or some parts of these
personnel files could be central to the plaintiff’s effort.”) (emphasis added). Accordingly, Courts
in the Eastern District of Louisiana routinely require production of only that part of a complete
personnel file which, upon in camera review, the Court deems responsive to a party’s claim. See,
e.g., Cosgrove v. Greater New Orleans Expressway Commission, 1998 WL 690969, at *1-*2 (E.D.
La. Oct. 2, 1998) (Berrigan, J.) (finding on review that magistrate’s ruling after in camera review
of personnel file that only portions related to plaintiff’s sexual harassment, discrimination and

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retaliation claims should be released was not clearly erroneous); Chauvin v. Lee, 2000 WL 567006,
at *2-*3 (E.D. La. May 8, 2000) (Wilkinson, M.J.) (citing Coughlin, and finding after in camera
review of police officer’s personnel file that certain types of information, such as documents relating
to medical and annual leave, income taxes, weapons and uniform purchases, etc. were not relevant
to civil rights claim); Snyder v. United States, 2003 WL 21088123, at *3 (E.D. La. May 12, 2003)
(Roby, M.J.) (finding that information such as employee’s application for employment, military
history, and financial and salary information was not relevant to plaintiff’s personal injury claim
asserted against Postal Service driver).8
Here, the Hendersons clearly meet the relevancy standard, as they argue that evidence from
Turner and Covington’s personnel files will affect the credibility of the deposition testimony of the
two guards. Accordingly, the Court reviewed the personnel files in camera, and then ordered those
documents relevant to Henderson’s claim produced. The plain language of the Court’s order
explains the scope of its review and the reasons for its decision. The Hendersons now merely
speculate that the personnel files “must” contain information which the Court overlooked. Courts
in similar circumstances have dismissed appeals taken after in camera review. See, e.g., Sanchez
v. Yates, 2011 WL 3102556, at *3 (C.D. Cal. June 20, 2011) (finding, in context of federal habeas
relief case, that petitioner’s claims that personnel files of two arresting officers “might” contain
discoverable information even after in camera review of files was “speculative” and did not merit
relief). Similarly, the Hendersons’ claim that the personnel file “must” contain other relevant
evidence is denied.

8

Admittedly, Snyder, unlike the other cases cited herein, did explicitly state that “the defendant has certified
that the file produced is the complete” personnel file. Id. However, the Court has found no rule or requirement which
obligates a producing party to expressly certify that the file produced is in fact the “complete” file. Presumably, officers
of the court who respond to a Court Order to produce documents will obey the directive of the Court.
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B.

Improper Use of Deposition Testimony

The Hendersons also argue that the Court erred as a matter of law because the reason for
non-production of the entire file “is that the Magistrate Judge found that there is little call to
question the credibility of the Defendants or to challenge the testimony he gave in deposition.” (R.
Doc. 105, p. 2). In order words, the Hendersons argue that the Court first made a credibility
determination based on the deposition testimony of Turner and Covington, and then decided that it
did not need to see the entire personnel file. Id. The Hendersons argue that it was inappropriate for
the Court to make credibility calls based on deposition testimony in rendering a decision on a motion
to compel, when the purpose of the motion is to gather information to test credibility. Id.
The Court did in fact reference both Covington and Turner’s deposition testimony in the
course of its Order,9 and the Hendersons correctly reiterate the judicial maxim that credibility
determinations should not be made at the motions stage. See, e.g., Tarver v. City of Edna, 410 F.3d
745, 753 (5th Cir. 2005) (finding credibility determination improper in determination of summary
judgment motion).

However, the Hendersons’ argument regarding the Court’s motive for

referencing this material is also premised upon an incorrect reading of the Court’s Order. Simply
because the Court referenced pertinent deposition testimony for purposes of illustrating the basis for
both the Hendersons’ claims and how those claims related to their specific requests for production
does not does not mean that the Court made a credibility determination as to the trustworthiness of
either Covington or Turner’s testimony, or that on the basis of such a determination the Court
9

The Order noted that, as to Turner, he had testified that “a lot” of inmate grievances had been filed against him
in the previous five years, but that none of those grievances involved complaints of excessive force, nor had been
investigated by the department of corrections or been subject to an internal affairs investigation. (R. Doc. 105, p. 7,
citing (R. Doc. 52-1, pp. 8-9). The Order also noted that, as to Covington, he had testified that in the previous five years,
inmates had filed grievances against him, but that he did not recall any of them using excessive force. (R. Doc. 105, p.
9 (citing R. Doc. 52-2, pp. 8-9). The Court notes that in its original Order, it had listed the citation to Covington’s
transcript as “R. Doc. 51-1,” which is the document containing Turner’s deposition.
9

decided that it did not need to review the personnel files in their entirety.
In sum, Henderson’s arguments for reconsideration do not warrant the “extraordinary”
remedy of Rule 59(e) relief, because the Court’s Order was not clearly erroneous and enforcing it
as written would not result in manifest injustice.
IV.

Conclusion
Accordingly,
IT IS ORDERED that Plaintiffs, Latesha and Calvin Earl Henderson (the “Hendersons”),’

Plaintiffs’ Motion Seeking Reconsideration of Magistrate Judge Ruling “Order” [105] (R. Doc.
109), is DENIED.
New Orleans, Louisiana, this 29th day of October 2012.

KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE

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