Davis v. Hinds County, Mississippi et al

Filing 145

ORDER granting in part and denying in part 79 Motion to file excess discovery requests; deferring ruling and setting a hearing on 92 Motion for Sanctions; granting 98 Motion for Extension of Time to File Response/Reply ; denying 100 Motion for Sanctions; denying 109 Motion to Compel. Signed by Magistrate Judge F. Keith Ball on 6/26/18 (RBM)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
CHAKAKHAN R. DAVIS
vs.

PLAINTIFF
CIVIL ACTION NO. 3:16-cv-674-DPJ-FKB

HINDS COUNTY, MISSISSIPPI

DEFENDANTS
ORDER

Before the Court are five motions: Plaintiff Chakakhan R. Davis’s Motion for Leave to File
Additional Discovery Requests [79], Davis’s Motion for Sanctions [92], Defendant Hinds
County’s Motion for Extension of Time to Respond to Davis’s Motion for Sanctions [98], Davis’s
Motion for Sanctions against Defense Counsel [100], and Davis’s Motion to Compel the Medical
Expert Report of Dr. Ray Melton [109].
Davis, proceeding pro se, has filed suit against Hinds County. She asserts various claims
under state and federal law in relation to her May 26, 2015, arrest and subsequent detention at the
Hinds County Detention Facility.
I. Davis’s Motion for Leave to File Additional Discovery Requests [79]
Davis requests that the Court permit her to serve nine interrogatories in excess of the
twenty-five permitted by the Case Management Order [39]. 1 See [79] at 2. She previously served
these nine requests on Hinds County, who objected based on the twenty-five interrogatory limit.
See [90-2]. The nine interrogatories Davis seeks permission to propound would bring her total
number of interrogatories to thirty-four. See [90-1]; [90-2]. Davis contends that the additional
discovery is needed:

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Davis also makes reference to serving one additional request for production of documents. [79]. However,
Defendant does not contend that she has already served twenty-five requests for production of documents. See [90].
Accordingly, it does not seem that the single additional request for production of documents that Davis seeks to
propound would be in excess of the twenty-five permitted by the Case Management Order.

because of the deficiencies present in the Hinds County Sheriff’s Departments
Internal Affairs Deputy Sheriffs Body Cam Wearing and preservation of excessive
force video evidence policy (ies) or practical safe guards to prevent the loss,
tampering or destruction of such police or officers misuse of excessive force or
other similar recorded brutality incident (s).
[79] at 2.
Fed. R. Civ. P. 33(a)(1) limits the number of interrogatories one party may serve on another
to twenty-five. “[T]he party seeking leave to serve excess interrogatories must make a
‘particularized showing’ to exceed the twenty-five interrogatory limit.” Parkcrest Builders, LLC
v. Hous. Auth. of New Orleans (HANO), No. CV 15-1533, 2017 WL 1426933, at *3 (E.D. La. Apr.
21, 2017). “Pro se litigants are not relieved of their obligation to follow the rules governing
discovery, but . . . the ‘particularized showing’ to obtain leave to serve additional interrogatories
cannot be divorced from [a p]laintiff's pro se status.” McNeil v. Hayes, No. 1:10-CV-01746-AWI,
2014 WL 1125014, at *2 (E.D. Cal. Mar. 20, 2014).
Davis’s claims relate in part to her arrest by Hinds County Sheriff’s Deputies. The
interrogatories she seeks to propound on Hinds County pertain to the county’s use of police body
cameras during the course of arrests. See [90-2] at 5-10. Accordingly, the Court finds that she
should be given leave to serve the additional nine interrogatories listed as Interrogatory Nos. 6-14
in her Second Set of Interrogatories. See [90-2] at 5-11. Davis’s motion [79] is granted to the extent
it requests permission to propound those specific nine interrogatories to Hinds County. 2 The
motion is denied to the extent it requests any other relief.
Because Davis has already served the interrogatories in question, the Court orders Hinds
County to provide supplemental responses to Interrogatories Nos. 6-14. The Court sets a deadline
of July 12, 2018, for Hinds County to provide the supplemental responses to Davis.

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Hinds County is still permitted to object to the interrogatories on any grounds that may apply, except for the
twenty-five interrogatory limit set by Fed. R. Civ. P. 33 and by the Case Management Order.

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II. Hinds County’s Motion for an Extension of Time to Respond [98] to Davis’s
Motion for Sanctions against Hinds County for Failure to Retain Body Camera Footage [92]
Davis filed a motion for sanctions against Hinds County [92] on February 20, 2018. She
filed that motion conventionally with the Clerk of Court, despite her certificate of service stating
that it was electronically filed through the Court’s CM/ECF system. See 92 at 17 (certificate of
service stating motion was electronically filed, but handwritten note stating motion left with a
Deputy Clerk).
On March 5, 2018, Hinds County requested a one-week extension to file its response to
Davis’s motion. Hinds County claims it did not receive an exhibit to the motion, specifically an
audio CD, until one week after Davis filed her motion. In her response, Davis concedes that she
did not serve Hinds County with a copy of the exhibit along with her motion. Hinds County only
received a copy of exhibit after obtaining it from the Clerk of Court on February 27, 2018.
Rule 5 of the Federal Rules of Civil Procedure requires a party to serve a copy of any
written motion, except one that may be heard ex parte, on every other party to the case. See Fed.
R. Civ. P. 5(a)(1). Because Davis never served a complete copy of the motion on Hinds County,
she failed to comply with Rule 5. Under the circumstances, the Court finds Hinds County’s motion
for an extension of time to respond [98] should be granted. Hinds County’s response, filed March
14, 2018, is deemed timely and will be considered.
III. Davis’s Motion for Sanctions against Hinds County for Failure to Retain Body
Camera Footage [92]
Davis contends that Hinds County should be sanctioned for failing to preserve body camera
footage of her arrest. See [92]. She contends that the arresting officer “made statements towards
[her] that there was no need for her to record the incident because his body camera were [sic]

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conducting the same.” [92] at 7. She attaches as an exhibit to her motion an audio CD containing
what she claims are recordings from her cell phone of the arrest. [92-1]. The CD contains
approximately a half hour of audio recordings divided into nine tracks. Id. Track two of the
recording includes a conversation between a man and a woman, purportedly Sheriff’s Deputy
Bobby Nichols and Davis. Id.; see [92] at 7-8 (referring to the officer as Sergeant Bobby Melson);
[104] at 3-4 (explaining that it was likely Bobby Nichols, as no one named Bobby Melson was
employed by the Hinds County Sheriff’s Office). In the recording, the man tells the woman, “I got
it right here, right here. You trying to record everything? You don’t need it, I got it right here. See
what I’m saying? I’m recording.” Id. at Track 2, time stamp 1:20.
Additionally, Davis attaches as an exhibit a document which is purportedly a Hinds County
Sheriff’s Office General Order. [92-2]. The document states that “[i]t shall be the policy of the
Sheriff’s Office that officers who are assigned BWCs (body worn cameras) shall activate the BWC
when such use is appropriate to the proper performance of his/her official duties, where the
recordings are consistent with this policy and law.” [92-2] at 1. Hinds County does not confirm or
deny the accuracy of the exhibit, though it contains a Bates Stamp, suggesting it was provided to
Davis in discovery. See [104].
In response to one of Davis’s interrogatories, Hinds County responded “[t]here were no
body cameras worn by any of the County officers on May 26, 2015, or during the course of
Plaintiff’s May 2015 incarceration.” [104-2] at 14. However, in response to her motion, Hinds
County states that two of the County officers present at the scene of her arrest, Bobby Nichols and
Corey Carr, were assigned body cameras. [104] at 4-5; [104-3] at 1. Hinds County offers no
explanation for this discrepancy.

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Hinds County provides an affidavit from Hinds County Sheriff’s Department IT Officer
Warren Finch. [104-3]. Officer Finch testified that the Hinds County Sheriff’s Department’s server
does not contain any footage of Davis’s May 26, 2015, arrest. Id. at 2. He further testified that he
is the only person who would have the ability to delete any officer’s body camera footage, and that
he did not do so with regard to any footage of Davis’s arrest. Id.
Fed. R. Civ. P. 37(e) provides for sanctions in the event a party fails to preserve
electronically stored information. The rule states:
(e) Failure to Preserve Electronically Stored Information. If electronically stored
information that should have been preserved in the anticipation or conduct of
litigation is lost because a party failed to take reasonable steps to preserve it, and it
cannot be restored or replaced through additional discovery, the court:
(1) upon finding prejudice to another party from loss of the information,
may order measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive another
party of the information's use in the litigation may:
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was
unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
Fed. R. Civ. P. 37.
“A Court must determine that four predicate elements are met under Rule 37(e) before
turning to the sub-elements of (e)(1) and (e)(2): (a) the existence of ESI of a type that should have
been preserved; (b) ESI is lost; (c) the loss results from a party's failure to take reasonable steps to
preserve it; and (d) it cannot be restored or replaced through additional discovery.” Richard v.
Inland Dredging Co., LLC, No. 6:15-0654, 2016 WL 5477750, at *3 (W.D. La. Sept. 29,
2016)(citing Konica Minolta Business Solutions, USA v. Lowery Corporation, 2016 WL 4537847,
*2 (E.D. Mich. 2016)).

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The information before the Court is insufficient to find that these four predicate elements
exist. Specifically, the information before the Court is insufficient to determine whether the ESI
in question actually existed, or, if so, whether it was lost, and whether such loss was the result of
Hinds County’s failure to take reasonable steps to preserve it. The Court cannot, therefore, grant
Davis’s motion for sanctions pursuant to Fed. R. Civ. P. 37(e) based on the information currently
before it. However, the evidence Davis has presented is sufficient to require more information on
this issue than Hinds County has presented.
Accordingly, the Court sets this motion for a hearing on July 17, 2018 at 1:30 p.m. in
Courtroom 5D of the Thad Cochran United States Courthouse in Jackson, Mississippi. Hinds
County shall ensure that the following individuals are present at the hearing:
(1) Sheriff’s Deputy Bobby Nichols;
(2) Sheriff’s Deputy Corey Carr; and
(3) Sheriff’s Department IT Officer Warren Finch.
In the event that Hinds County cannot secure the attendance of any of these individuals at the
hearing, Hinds County must provide to the Court no later than July 3, 2018, a sworn statement
attesting to all efforts made to secure the individual(s)’ presence at the hearing and why the
appearance of any such individual cannot be secured.
The Court defers ruling on motion [92] until after it has considered the evidence and
argument presented at the July 17, 2018 hearing.
IV. Davis’s Motion for Sanctions against Defense Counsel [100] for Filing Motion
[98].
Citing Fed. R. Civ. P. 11, Davis requests that the Court sanction defense counsel,
contending that Hinds County’s Motion for Extension of Time [98] was filed in bad faith and

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contains misrepresentations. See [99]. Having considered Davis’s motion [100], the Court finds
that it has no merit and should be denied.
V. Davis’s Motion to Compel the Medical Expert Report of Dr. Ray Melton [109].
Davis requests that the Court compel Ray Melton, a Nurse Practitioner at Claiborne County
Medical Center, to produce an expert medical report on her behalf. See [109] 2-3. Davis contends
that Nurse Practitioner Melton treated her for injuries allegedly arising from the subject incidents.
The undersigned is unaware of any legal authority for this Court to compel Melton to draft an
expert report on Davis’s behalf, and Davis cites no such legal authority. Motion [109] is denied.
Conclusion
1. Davis’s Motion for Leave to File Additional Discovery Requests [79] is granted in part
and denied in part, consistent with the terms of this Order;
2. The Court defers ruling on Davis’s Motion for Sanction [92] and sets the motion for
hearing on July 17, 2018 at 1:30 p.m.;
3. Hinds County’s Motion for Extension of Time to Respond to Davis’s Motion for
Sanctions [98] is granted;
4. Davis’s Motion for Sanctions against Defense Counsel [100] is denied; and
5. Davis’s Motion to Compel the Medical Expert Report of Dr. Ray Melton [109] is
denied.
SO ORDERED, this the 26th of June, 2018.

/s/ F. Keith Ball
UNITED STATES MAGISTRATE JUDGE

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