Ewing v. Wallace et al

Filing 68

MEMORANDUM AND ORDER re: 64 MOTION for Entry of Clerk's Default against defendants filed by Plaintiff Jermaine S. Ewing, 52 MOTION to Compel filed by Plaintiff Jermaine S. Ewing, 57 MOTION for Declaratory Judgment filed by Plaintiff Jermaine S. Ewing, 53 MOTION to Set Aside Order/Judgment filed by Plaintiff Jermaine S. Ewing motions are DENIED. Signed by District Judge Stephen N. Limbaugh, Jr on 12/16/14. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
JERMAINE S. EWING,
Plaintiff,
v.
LESLIE TYLER, et al.,
Defendants,

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No. 1:13CV71 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motion to compel (#52), motion to set
aside (#53), motion for declaratory judgment (#57), and motion for default judgment
(#64).
Plaintiff is a prisoner in the Missouri Department of Corrections. Plaintiff filed
this lawsuit pro se, alleging violation of his constitutional rights when defendant prison
guards supplied plaintiff with bed sheets while he was on suicide watch, and plaintiff
subsequently attempted suicide using those sheets. Plaintiff’s motion to compel (#52)
seeks production of videos, chronological logs, individual confinement record, close
observation logs, and mental health records. Plaintiff does not state in his motion that he
attempted to confer in good faith with defendants prior to filing his motion in accordance
with Federal Rule of Civil Procedure 37(a)(1). Local Rule 37-3.04 states that “The Court
will not consider any motion relating to discovery and disclosure unless it contains” such
a statement; thus, the Court will not consider plaintiff’s motion to compel. Because most

of the items plaintiff requests either do not exist or were provided to plaintiff by
defendants in a show of good faith, the motion would be moot regardless.
Next is plaintiff’s motion to set aside (#53) the dismissal of defendant Ian Wallace
based on newly discovered evidence. Defendant Wallace was dismissed on February 6,
2014 (#29, 31). Plaintiff’s complaint did not make any explicit allegations against
defendant Wallace. It thus appeared plaintiff sought to hold Wallace liable for his
supervisory actions over other Missouri Department of Corrections defendants. “Liability
under § 1983 requires a causal link to, and direct responsibility for, the alleged
deprivation of rights.” Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990). Here,
plaintiff alleges his rights were violated when he was provided with sheets while on
suicide watch and subsequently used those sheets to attempt suicide. Wallace, as warden
of the prison in which plaintiff is housed, was not directly involved in any of the facts
going to alleged violations of his constitutional rights. Plaintiff states that “newly
discovered evidence” shows that Wallace determined that an investigation into the
incident was “not warranted at this time” according to an interoffice communication.
Plaintiff states that Wallace’s failure to investigate was in contravention of prison
procedures. However, plaintiff has not shown any reason to hold the Warden responsible
for the constitutional violation of which plaintiff complains. Wallace’s after-the-fact
investigation simply has no bearing on whether plaintiff’s rights were violated when
plaintiff was supplied with sheets while on suicide watch.
Plaintiff’s motion for declaratory judgment (#57) actually contains additional
arguments in favor of his motion to compel. He requests the production of certain

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documents. It will therefore be held to the standard of a motion to compel, and it will be
denied for the same reason the motion to compel (#52) is denied. Plaintiff does not state
he conferred with the defendants before filing this motion to compel; moreover, it
appears that the defendants have already produced the documents he seeks. In response
to this motion, defendants explained that they had in fact located a video relevant to the
incident described in the complaint and that they were in the process of securing
plaintiff’s access to the video.
Finally, plaintiff moves for a “default judgment” (#64). This, too, is a re-named
motion to compel. It complains that the video relevant to the incident described in the
complaint was edited. Plaintiff says that the video contradicts defendant Tyler’s
statements regarding what occurred with respect to his providing plaintiff with sheets.
Plaintiff requests judgment be entered in his favor and that damages be awarded to him.
Plaintiff’s request for judgment will be denied. With respect to plaintiff’s concerns
regarding the authenticity of the video, plaintiff will have opportunity to present his facts
and arguments relevant to the allegations when this matter is considered on the merits.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to compel (#52), motion to
set aside (#53), motion for declaratory judgment (#57), and motion for default judgment
(#64) are DENIED.
Dated this 16th day of December, 2014.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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