Alfred v. State of LA Dept of Corrections

Filing 19

RULING denying 17 Motion for an Order Compelling Discovery. Pursuant to Rule 37(a)(5)(B), within 14 days, the plaintiff shall pay to the defendant reasonable expenses in the amount of $350.00. Signed by Magistrate Judge Stephen C. Riedlinger on 02/25/2014. (NLT)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

GURNEY ALFRED
CIVIL ACTION
VERSUS
NUMBER 12-801-JJB-SCR
STATE OF LOUISIANA THROUGH
THE DEPARTMENT OF CORRECTIONS
RULING ON MOTION TO COMPEL DISCOVERY
Before the court is the Plaintiff’s Motion for an Order
Compelling Discovery filed by plaintiff Gurney Alfred.
document number 17.
The

subjects

Record

The motion is opposed.1
of

this

discovery

motion

are

four

of

the

plaintiff’s discovery requests, specifically, Interrogatory Number
11 and Request for Production Numbers 62, 63 and 76.

All of the

parties’ arguments and exhibits have been reviewed.

Plaintiff’s

motion is resolved as follows.
Request for Production Number 76
Plaintiff requested production all investigative files on
Capt. Warren Lemoine from January 2002 to the present.2

Although

the defendant objected to the request on several grounds, it

1

2

Record document number 18.

Plaintiff alleged he was employed at Louisiana State
Penitentiary (“LSP”) as a rehire in 2004 and was terminated in
October 2010. In his Complaint the plaintiff alleged that during
this time period he was subject to racial discrimination,
harassment and retaliation by other employees, including Capt.
Lemoine, who was his supervisor.

produced the investigative reports in response to the request.3
Plaintiff took issue with the defendant’s objections, and also
argued that the defendant waived any objections by providing an
untimely discovery response.

However, the plaintiff did not

dispute that the defendant produced the responsive documents that
it has.

Therefore, there is no basis to order the defendant to

provide a supplemental response to Request for Production Number
76.
Requests for Production Numbers 62 and 63
In Request for Production Number 62, the plaintiff asked the
defendant to produce the documents that related to any and all
signed yard refusal forms for A-Team, B-Team and the Administrative
Segregation Units for LSP Camps C, D and J, for the period January
1, 2009 to November 29, 2010. Request for Production Number 63 was
similar in scope, but called for production of the forms from the
LSP Administrative Segregation Units at Camp RC, and at Dixon
Correctional Center and Hunt Correctional Center.
In response to Request Number 62, the defendant stated that
Camps RC/CCR closed on November 1, 2010, and pursuant to the
document retention policy, which was produced to the plaintiff, the
yard refusal forms for the time period stated in the request were
disposed of according to the policy.
3

The yard refusal forms from

Record document number 18, Opposition to Plaintiff’s Motion
to Compel, pp. 4-5; record document number 17-4, Exhibit 7,
Defendant’s Response to Plaintiff’s Third Set of Discovery, p. 40.
2

this time period that the still has were produced by the defendant
without objection.
objection

to

part

Defendant however, did raise a relevance
of

Request

Number

63

because

two

of

the

facilities - Dixon and Hunt - were not facilities where the
plaintiff was employed.

As to Camp RC the defendant relied on its

retention policy and the documents it provided in response to
Request Number 62.
It appears that the plaintiff’s basis for moving to compel as
to these document requests is as follows: (1) objections are waived
because responses were untimely; and,(2) the defendant’s production
of some yard refusal forms from July 2010 raises a question as to
why records for the other days of the month were not produced.
Plaintiff argued that if, after the court orders production of the
yard refusal forms the defendant maintains that it no longer has,
then the court should impose on the defendant a negative inference
that the documents would have been unfavorable to the defendant.
Plaintiff’s argument is unpersuasive.

Even if responses were

untimely, there is no basis to order the defendant to produce yard
refusal forms from Dixon and Hunt.

Since the plaintiff did not

work at Dixon or Hunt, forms from these facilities would not be
relevant to his claims arising out of his employment at LSP.

With

regard to the requested LSP yard refusal forms, the defendant
submitted the affidavits of Jonathan R. Vining, Rhonda Z. Weldon,
and Trish Foster, with supporting exhibits, to establish the

3

defendant’s document retention policy/schedule.4

This information

establishes why the defendant does not have the documents for the
time period requested - January 1, 2009 to November 29, 2010.
Defendant

preserved

the

yard

refusal

forms

for

the

dates

surrounding the incident that led to the plaintiff’ termination.
Defendant produced these forms, which are dated from July 5 to July
29,

2010.5

Considering

the

defendant’s

legitimate

document

retention policy and the defendant’s preservation and production of
the forms relevant to the plaintiff’s claims, there is no basis to
order the defendant’s to produce any additional documents in
response to Request for Production Numbers 62 and 63.
It is unnecessary to address or resolve the plaintiff’s
argument that the defendant should suffer a negative inference for
destroying or not producing other yard refusal forms.
argument

was

premised

on

the

court

ordering

a

This

supplemental

production and the defendant then not producing the additional
forms.

As explained above, the defendant will not be ordered to

provide supplemental responses to these requests for production.
Plaintiff’s arguments are not relevant to the motion to compel, but
are akin to a spoliation argument that would be the subject of a
pre-trial motion in limine seeking a adverse inference jury charge.

4

Record document numbers 18-1, 18-2 and 18-6, Exhibits 1, 2,

and 6.
5

Record document number 17-6, Exhibits 9-12.
4

Interrogatory Number 11
Plaintiff’s Interrogatory Number 11 asked the defendant to
identify by name and race all LSP employees who filed grievances
involving race discrimination, harassment and/or retaliation during
the period from January 2008 to November 2010.

Defendant provided

the grievances filed by the plaintiff, but objected to producing
any other information on grounds of relevancy and overbreadth.
Defendant contended that information about other LSP employees who
filed race discrimination, harassment and/or retaliation grievances
is unrelated to the plaintiff’s claims and would not be admissible
in evidence. Plaintiff argued that the defendant’s untimely answer
waived any objections.
sought

is

relevant

Plaintiff also argued that the information

because

it

will

show

that

the

defendant

committed other unlawful acts, which will help him prove the
defendant discriminated/retaliated against him.
Again, the plaintiff’s arguments are unpersuasive.

This

interrogatory, covering all LSP employees for more than a two year
period, is clearly over broad.
alleged

a

pattern

or

Furthermore, the plaintiff has not

practice

claim

against

the

defendant;

plaintiff brought an individual claim for race discrimination,
harassment and retaliation.

Plaintiff failed to articulate how

information in grievances filed by other LSP employees over a two

5

year period could help him prove his individual claims.6
Under Rule 37(a)(5)(B) if the motion is denied the court must,
after giving the opportunity to be heard, require the movant, the
attorney filing the motion, or both to pay the party who opposed
the motion its reasonable expenses incurred in opposing the motion,
including attorney’s fees, unless the motion was substantially
justified or other circumstances make an award of expenses unjust.
Defendant requested and is entitled to reasonable expenses under
this rule.

However, the defendant did not request a specific

amount, or provide any information to support an award of expenses.
Plaintiff’s explanation of the relevance of the information he
is seeking is confusing, but it appears to point to a use of the
information

that

would

be

prohibited

under

Rule

404(b)(1),

Fed.R.Evid.7

Review of the plaintiff’s motion and the defendant’s

opposition supports finding that the motion was not substantially
justified, and the record does not reflect any circumstances that
would make an award of expenses unjust.

An award of reasonable

expenses in the amount of $350 is reasonable.
Accordingly, the Plaintiff’s Motion for an Order Compelling
Discovery is denied.
Pursuant to Rule 37(a)(5)(B), within 14 days, the plaintiff
shall pay to the defendant reasonable expenses in the amount of

6

Record document number 17-1, Memorandum in Support of
Plaintiff’s Motion for an Order Compelling Discovery, pp. 3-4.
7

The resolution of this motion shows
6

$350.
Baton Rouge, Louisiana, February 25, 2014.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

7