Hopkins v. Reed et al

Filing 83

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that Plaintiff's motions to compel (Docs. 53 and 57) the Defendants to produce the discovery requested (Docs. 30, 47), and motion to review discs containing video footage (Doc. 75) are GRANTED.IT IS FUR THER ORDERED that the Defendants shall produce for the Plaintiff's review in the SECC Litigation Unit on or before March 17, 2015, all of the video footage that has been requested by the Plaintiff including any video of the Plaintiffs trip to th e medical unit. The Plaintiff shall be given one more opportunity to fully review all of the video footage that is relevant to his Complaint. IT IS FURTHER ORDERED that the Defendants shall disclose in a Notice to the Court, with a copy to the Plaint iff, whether additional security cameras were in operation in the areas of interest (i.e., corridors outside of the medical unit, corridor outside of the exterior door to housing unit #1, and inside the medical unit), as well as any other areas that security cameras may have captured the conduct of all persons involved in the use of force incident between 10:28 a.m. and 10:45 a.m. on September 4, 2012). Said Notice must be filed no later than March 13, 2015. IT IS FURTHER ORDERED that Defendant& #039;s shall immediately provide Plaintiff with a copy of all of the written reports in Exhibits F and F-1 to the Defendants Motion for Summary Judgment, as well as Brennan Gibsons Affidavit (Bates Stamped 0085). IT IS FURTHER ORDERED that Defendant& #039;s shall provide to the Court for in camera review a diagram of the SECC that depicts the Plaintiffs travel from his original housing unit to the medical unit on the morning of September 4, 2012, and then to the central wing of Housing Unit #2 wh ere the use of force incident concluded. The diagram shall include markings that identify the location of all security cameras that were in operation in the relevant corridors of the SECC on September 4, 2012, as well as notations regarding any chang es or additions to the location of security cameras after that date. This information must be provided to the Court no later than March 13, 2015.IT IS FINALLY ORDERED that Plaintiff's request for counsel (Doc. 68) and his subsequent such requests in his other motions are DENIED without prejudice. ( Response to Court due by 3/13/2015.) Signed by Magistrate Judge Abbie Crites-Leoni on 3/3/15. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
LARRY L. HOPKINS,
Plaintiff,
vs.
CHARLES REED, et al.,
Defendant.

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Case No. 1:13CV126 ACL

MEMORANDUM AND ORDER
This matter is before the Court on the Plaintiff’s Motions to Compel (Docs. 53, 57,
58), Motion for the Appointment of Counsel (Doc. 68), and Request for an Order to
Allow Plaintiff (Doc. 75) the opportunity for a subsequent review of discovery.
Defendants have responded to each of these motions and they are ripe for disposition.
I. Background
The Plaintiff, Larry L. Hopkins, alleges that after making a trip to the medical unit
at the Southeast Correctional Center (SECC) on September 4, 2012 for back pain,
officers used excessive force against him in violation of his constitutional rights. In the
pending motions, Hopkins claims that he has not been given the opportunity to review all
of the video footage that is relevant to the use of force incident, nor all of the written
reports concerning the incident. The Defendants have declined to make a copy of the
written reports for Hopkins; they indicate his access to said reports is not allowed
“pursuant to Missouri Department of Corrections procedures.” (Doc. 80.) Nevertheless,
those reports have been made a part of the public record in this case as they were attached

to the Defendants’ Motion for Summary Judgment as supporting exhibits. See, Doc. 79-6
at 2-11 (produced at Bates Nos. 15-24; the documents include the nine-page
“Investigation Report” completed by Brennan Gibson on March 12, 2013 and the onepage Inspector General’s “Investigation Closing and Disposition” conclusion dated April
4, 2013) and Doc. 79-7 at 2-35 (produced at Bates Nos. 46-79; the documents include
numerous written and typed reports prepared by the staff involved in the alleged use of
force incident, as well as the Warden’s and Use of Force Committee’s documentation of
the institutional response to the incident).
The Defendants also indicated that Hopkins was given an opportunity to “view[]
all three camera angles” of the incident outside of the medical unit “multiple times” on
September 2, 2014. (Doc. 82-1 at 1), as well as “an investigative report submitted by
Investigator II Brennan Gibson regarding this use of force, reports submitted by staff
members involved,” id., and other information. The following day, Hopkins was able to
listen to “audio recordings of interviews of staff involved,” id., in the use of force
incident.
During a status conference on January 13, 2015, Hopkins explained that the actual
use of force incident was not really visible on the video footage that he was allowed to
review and furthermore, that he believed there should have been video footage available
from additional cameras. Counsel for Defendants replied that she was not aware of
additional camera views being available, but that she could check on it. She further
stated that if there was a camera within the medical unit any footage that may have been
recorded would likely no longer be available. Counsel for Defendants indicated that she
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would inquire as to any changes made to the security cameras in the areas in question and
report back to the Court.
On January 26, 2015, Brennan Gibson, who is “familiar with the security camera
system utilized throughout” the SECC prepared an Affidavit and stated that “[a]ll video
footage available regarding the incident. . .on September 4, 2012 was collected, viewed,
and ultimately provided within the investigation conducted on behalf of the Office of the
Inspector General.” (Gibson’s Affidavit was attached to Doc. 74, “Notice to Court” filed
on January 27, 2015, stamped “Hopkins v. Reed, et al. 0085.)
The Court received and reviewed a copy of the video footage that was available
and reviewed by Gibson and Hopkins. There are three video clips. The first clip is from
“C133” which is a continuous video of the view of the hallway immediately outside of
the medical unit entry doors and one wall in the corridor that leads to the front exterior
door of what is believed to be housing unit 1; the timeframe included is from 10:28:55
a.m. to 10:36:33 a.m. This clip shows Hopkins apparently using the wall for support as
he leaves the medical unit, followed by him going down onto his hands and knees, and
then communicating with a corrections officer while on one knee. The officer and
Hopkins converse and then the officer appears to assist Hopkins to his feet while at the
same time working to place Hopkins’ hands behind his back in restraints. Ultimately,
Hopkins falls to the ground on his stomach with his legs stretched out behind him.
Hopkins appears to lie very still for approximately fourteen seconds while the officer is
applying the restraints, but then a struggle begins during which time additional officers
assist in restraining Hopkins. The only part of the struggle that is visible on the video
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footage that was provided is from roughly Hopkins’ knees to his feet. Hopkins upper
body movements, as well as the movements of the primary restraining officer are not
visible. Eventually, the officers place Hopkins in a wheelchair, but Hopkins again
struggles with the officers. The wheelchair was taken away and officers bring back
boards to the location. The activity involving Hopkins is out of view of the camera view
for C133.
The second clip is from “C71,” another continuous video of the “front exterior
HU1 door XC120” to what appears to be an outdoor corridor; the time stamp on the clip
reveals that it shows the activity in that location between 10:34:11 a.m. to 10:35:47 a.m.
That clip shows corrections officers on either side of Hopkins, more or less carrying him
through the corridor with Hopkins’ feet dragging. Another apparent struggle occurs just
outside the view of the security camera.
The third and final clip that has been provided is from “C277” and depicts activity
in what is identified as the central A-Wing of Housing Unit 2 between 10:38:56 and
10:44:32. During the course of this clip, Hopkins is carried in on a backboard, the
backboard is placed on the ground, Hopkins is released from the backboard, and then
placed on a bench to which he was handcuffed. A nurse from the medical unit
communicates with Hopkins while he is seated on the bench.
Although a viewer of the video clips provided is not able to view all of the activity
between Hopkins and SECC staff, because of what is visible in the frame of the security
camera that created each of the clips, the videos are continuous and do not appear to have
been altered or modified.
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In his motions, Hopkins requests that the Court compel the Defendants to allow
him to view all of the video footage of the use of force incident that occurred on
September 4, 2012, including his trip to the medical unit in the wheelchair before the
incident occurred, as well as any video footage within the medical unit. Hopkins also
requests the appointment of counsel to represent him since he is without sufficient funds
to hire an attorney and because of the complexity of the case, his lack of legal education,
and the difficulty he has had with being able to view the discovery requested.
II.

Plaintiff’s Discovery Requests
In his motions to Compel (Docs. 53, 57) and Response to the Defendants’

Response (Doc. 58), Hopkins repeatedly requests the opportunity to review “all” relevant
video footage, including recordings from any security cameras “inside” the medical unit,
as well as when he was “being pushed/e[s]corted from housing Unit #5 to medical.”
Hopkins made his initial requests for said material on February 18 and July 23, 2014. See
also, Docs. 30, 47 (Documents 30 and 47 were docketed as “Exhibit A” and
“Supplemental” by Plaintiff, respectively. The captions placed on the documents by
Hopkins, however, specifically identified the pleadings as “Plaintiff’s First Request for
Production of Documents” and “Plaintiff’s Second Request for Production of
Documents,” respectively.).
Hopkins acknowledges that he reviewed the footage that was provided to the
Court, which can be described as follows:
Security Camera

Location

Time-Frame
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C133

outside medical unit

10:28:55 to 10:36:33

C71

exterior door of HU #1

10:34:11 to 10:35:47

C277

HU #2 Central Wing

10:38:56 to 10:44:32

During the status conference, Counsel for Defendants indicated that an inquiry
would be made regarding the number of cameras that were in operation in the corridor
outside of the medical unit at the time of the incident, as well as whether there was a
security camera inside the medical unit. The Affidavit provided by Brennan Gibson
includes a statement that “[a]ll video footage available regarding the incident. . .on
September 4, 2012 was collected, viewed, and ultimately provided within the
investigation conducted on behalf of the Office of the Inspector General.” That statement
does not address the question of whether additional security cameras were in operation in
the corridor outside of the medical unit, as well as the corridor outside of the “front
exterior HU1 door.” Furthermore, the time stamps of the video footage provided reveals
that the Defendants have not disclosed footage from any security camera that depicts
what occurred between 10:35:48 a.m. (the end of the second clip) and 10:39:18, which is
when the officers can be seen carrying Hopkins into the central wing of HU #2 on a
backboard.
The Defendants suggest that since Hopkins was given the opportunity to review
the three video clips and written reports on one prior occasion that his Request for an
Order directing the SECC Litigation Coordinator to arrange a time for him to review
evidence in this case should be denied as moot. (Docs. 56, 82.)

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The record supports that Hopkins has requested the opportunity to view all video
footage of the incident in question, including footage of his trip to the medical unit before
the incident occurred, as well as all relevant written reports. Although Hopkins did not
specifically ask how many security cameras were in place within each of the corridors
wherein Hopkins was restrained by corrections officers, it would be fair and reasonable to
provide such information in light of the complaint and Hopkin’s request for “all” video
footage.
Upon review of the pleadings, the Court finds that Hopkins has made the
necessary effort to resolve this discovery dispute prior to seeking court intervention.
Although Defendants have stated that they provided all documents and footage that
available, it is not clear to the Court whether that is an accurate statement. Rule 34
provides for the production of documents and things within “the responding party’s
possession, custody, or control.” Fed. R. Civ. P. 34(a)(1). Since the Defendants have not
addressed the situation regarding whether additional security cameras were in operation
in the areas of interest, the Court must compel the Defendants to identify what security
cameras were in operation within the medical unit, in the corridor outside of the medical
unit, in the corridor outside of the exterior door of HU #1, as well as any other areas that
security cameras may have captured the conduct of all persons involved in the use of
force incident.
Furthermore, the Defendants shall provide Hopkins with an opportunity to review
all of the written reports and documents regarding the use of force incident in question.

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If upon further review of Defendants’ obligation to supplement disclosures as
described herein, it appears all relevant video footage has been provided, the Court will
entertain a motion for reconsideration.
If Hopkins needs additional time to review any supplemental documents and
footage provided by Defendants, he may request an extension of time to respond to
Defendants’ recently-filed Motion for Summary Judgment.
III. Plaintiff’s Motion and Request for Appointment of Counsel
Plaintiff has also requested the appointment of counsel. (Doc. 68 and 75.) The
appointment of counsel for an indigent pro se plaintiff lies within the discretion of the
Court. Indigent civil litigants do not have a constitutional or statutory right to appointed
counsel. Stevens v. Redwing, 146 F.3d. 538, 546 (8th Cir. 1998); Edgington v. Mo. Dept.
of Corrections, 52 F.3d. 777, 780 (8th Cir. 1995); Rayes v. Johnson, 969 F.2d. 700, 702
(8th Cir. 1992). Once the plaintiff alleges a prima facie claim, thereby surviving a
frivolity review pursuant to 28 U.S.C. §1915(d), the Court must determine the plaintiff’s
need for counsel to effectively litigate his claim. Edgington, 52 F.3d. at 780; Natchigall
v. Class, 48 F.3d. 1076, 1081-82 (8th Cir. 1995); In re Lane, 801 F.2d. 1040, 1043 (8th
Cir. 1986). The standard for appointment of counsel in a civil case involves the weighing
of several factors which include the factual complexity of a matter, the complexity of
legal issues, the existence of conflicting testimony, the ability of the indigent to
investigate the facts, and the ability of the indigent to present his claim. See McCall v.
Benson, 114 F.3d 754 (8th Cir. 1997); Stevens, 146 F.3d. at 546; Edgington, 52 F.3d. at

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780; Natchigall, 48 F.3d. at 1080-81; Johnson v. Williams, 788 F.2d. 1319, 1322-1323
(8th Cir. 1986).
In this matter, the Court finds that appointment of counsel is not mandated at this
time. Hopkins has demonstrated his ability to litigate this case as evidenced by his
pleadings, including discovery motions, and although his efforts to determine what
additional evidence is available have been until now unsuccessful, his efforts have
resulted in this Order directing the Defendants to provide the requested materials, if
available. At this point, nothing has occurred that indicates any need to appoint counsel.
This action appears to involve straightforward questions of fact regarding a single
incident, and plaintiff appears able to present and investigate his claim and file pleadings
and disclosures according to the Federal Rules of Civil Procedure.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s motions to compel (Docs. 53 and 57)
the Defendants to produce the discovery requested (Docs. 30, 47), and motion to review
discs containing video footage (Doc. 75) are GRANTED.
IT IS FURTHER ORDERED that the Defendants shall produce for the
Plaintiff’s review in the SECC Litigation Unit on or before March 17, 2015, all of the
video footage that has been requested by the Plaintiff including any video of the
Plaintiff’s trip to the medical unit. The Plaintiff shall be given one more opportunity to
fully review all of the video footage that is relevant to his Complaint.
IT IS FURTHER ORDERED that the Defendants shall disclose in a “Notice to
the Court,” with a copy to the Plaintiff, whether additional security cameras were in
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operation in the areas of interest (i.e., corridors outside of the medical unit, corridor
outside of the exterior door to housing unit #1, and inside the medical unit), as well as
any other areas that security cameras may have captured the conduct of all persons
involved in the use of force incident between 10:28 a.m. and 10:45 a.m. on September 4,
2012). Said Notice must be filed no later than March 13, 2015.
IT IS FURTHER ORDERED that Defendant’s shall immediately provide
Plaintiff with a copy of all of the written reports in Exhibits F and F-1 to the Defendants’
Motion for Summary Judgment, as well as Brennan Gibson’s Affidavit (Bates Stamped
0085).
IT IS FURTHER ORDERED that Defendant’s shall provide to the Court for in
camera review a diagram of the SECC that depicts the Plaintiff’s travel from his original
housing unit to the medical unit on the morning of September 4, 2012, and then to the
central wing of Housing Unit #2 where the use of force incident concluded. The diagram
shall include markings that identify the location of all security cameras that were in
operation in the relevant corridors of the SECC on September 4, 2012, as well as
notations regarding any changes or additions to the location of security cameras after that
date. This information must be provided to the Court no later than March 13, 2015.
IT IS FINALLY ORDERED that Plaintiff’s request for counsel (Doc. 68) and
his subsequent such requests in his other motions are DENIED without prejudice.
/s/ Abbie Crites-Leoni
ABBIE CRITES-LEONI
UNITED STATES MAGISTRATE JUDGE
Dated this 3rd day of March, 2015.
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