Walker v. Owens et al

Filing 43

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that plaintiffs Motion for Suggestion (#26) is DENIED. IT IS FURTHER ORDERED that plaintiff's Motion for Reconsideration (#30) is GRANTED, and plaintiff may serve defendants with written deposition ques tions no later than February 1, 2016. IT IS FURTHER ORDERED that the discovery deadline is extended to March 1, 2016. The dispositive motion deadline is extended to April 1, 2016. IT IS FURTHER ORDERED that plaintiff's Motion to Amend Complaint (#32) is DENIED. IT IS FURTHER ORDERED that plaintiffs Motion to Compel Discovery (#33) is DENIED.IT IS FURTHER ORDERED that plaintiffs Motion for Change of Judge (#36) is DENIED. IT IS FINALLY ORDERED that plaintiffs Motions for Rulings (#39, #40) are DENIED as moot ( Discovery Completion due by 3/1/2016., Dispositive Motions due by 4/1/2016.) Signed by District Judge Stephen N. Limbaugh, Jr on 1/6/16. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
COURTREL WALKER,
Plaintiff,
v.
SHAWN OWENS, et al.,
Defendants,

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No. 1:14CV131 SNLJ

MEMORANDUM AND ORDER
Plaintiff, an inmate in custody of the Missouri Department of Corrections
(“MDOC”), brought the instant action pursuant to 42 U.S.C. § 1983 against defendant
correctional officers alleging excessive force was used against him while incarcerated at
Eastern Reception, Diagnostic, and Correctional Center (“ERDCC”). This Court
dismissed two parties against whom no legally cognizable claims were made (#9).
This matter is before the Court on several outstanding motions.
I.

Motion for Suggestion (#26)
This document is titled “Plaintiffs’ Exhibits in Support of His Motion in

Suggestion.” The “motion” asks the Court to look at plaintiff’s exhibits in support of
certain contentions regarding the incident about which plaintiff filed this lawsuit. This
appears to be a compilation and summary of evidence that plaintiff believes supports his
allegations. Because this document does not seek relief from the Court other than what is
described in plaintiff’s complaint, the “motion” will be denied.

II.

Motion for Reconsideration (#30)
Plaintiff filed a “Motion for Permission to File Written Deposition on the

Defendants Named in the Complaint” (#28) on October 2, 2015. This Court denied the
motion because the Court understood that plaintiff sought to file a deposition transcript.
It now appears that the plaintiff seeks to server written deposition questions upon the
defendants pursuant to Federal Rule of Civil Procedure 31. Plaintiff will be granted leave
to do so by February 1, 2016. The discovery deadline will be extended to March 1, 2016.
III.

Motion to Amend Complaint (#32)
Plaintiff seeks to add two defendants to this matter, Tessa Kennon and Crystal

Duncan. He states that they were involved in the use of excessive force against him that
took place on October 25, 2012. He states that their names were unavailable to him
previously. His proposed amended complaint states that Kennon stood by and failed to
prevent plaintiff from being assaulted and that Duncan pepper sprayed him after the other
defendants were finished beating him. His original complaint, however, omits any
reference to witnesses or to any pepper spray incident.
The incident that gave rise to this matter occurred in October 2012. Plaintiff did
not file this case until September 2014. This Court’s Case Management Order states that
all motions for joinder of parties or amendment of pleadings shall be filed not later than
July 6, 2015. Yet plaintiff did not file his motion to add these two parties until November
16, 2015, more than three years after the event took place, more than a year after filing
the complaint, and months after the deadline by which to add parties. The Court will
deny plaintiff’s motion to add defendants to this matter.

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IV.

Motion to Compel Discovery (#33)
Plaintiff moves to compel defendants to respond to two discovery requests. The

first request was for any and all medical records regarding the alleged October 25, 2012
assault. Plaintiffs state that defendants did not respond, but defendants state they
produced medical records.
Plaintiff also seeks to compel production of certain internal MDOC policies,
procedures, and investigative files. Defendants contend that these documents present
safety and security concerns if disclosed to plaintiff and are considered confidential under
RSMo § 217.410. Defendants agreed to make the 86-page investigation report relevant
to the October 2012 incident available for plaintiff to review at the prison where he
currently resides. Defendants’ objections are valid, and the accommodation they have
offered plaintiff is acceptable. Plaintiff did not address this accommodation or his ability
to access the investigation report in his memoranda.
The motion to compel will be denied.
V.

Motion for Change of Judge (#36)
Plaintiff seeks a change of judge because he states this Court would not rule on his

motions and refused to allow him to conduct written depositions.

He states his letters to

the Clerk of the Court are being ignored. He asks for a change of venue or a change of
judge. A judge “shall disqualify himself in any proceeding in which his impartiality
might reasonably be questioned.” 28 U.S.C. § 455(a). Moran v. Clarke, 296 F.3d 638,
648 (8th Cir. 2002). When a judge “has a personal bias or prejudice concerning a party,
or personal knowledge of disputed evidentiary facts concerning the proceeding” he must
recuse himself. 28 U.S.C. § 455(b)(1). “[The issue is framed] as ‘whether the judge’s
impartiality might reasonably be questioned by the average person on the street who

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knows all the relevant facts of a case.’” Moran, 296 at 648 (quoting In re Kansas Pub.
Employees Retirement Sys., 85 F.3d 1353, 1358 (8th Cir. 1996)). However, “[a]n
unfavorable judicial ruling . . . does not raise an inference of bias or require the trial
judge’s recusal.’” Id. (quoting Harris v. Missouri, 960 F.2d 738, 740 (8th Cir.1992)).
Plaintiff has presented no valid reason for a change of judge. “Frivolous and
improperly based suggestions that a judge recuse should be firmly declined.” Maier v.
Orr, 758 F.2d 1578, 1583 (9th Cir. 1985). The motion will be denied.
VI.

Motions for Rulings (#39, #40)
Plaintiffs seeks rulings on his motions to compel discovery and to amend his

complaint because more than 30 days had passed since they were filed. The Court will
construe these as reply or supplemental memoranda in support of plaintiff’s motions.
These motions to compel and to amend have now been ruled on, so the motions for
rulings are therefore denied as moot.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s Motion for Suggestion (#26) is
DENIED.
IT IS FURTHER ORDERED that plaintiff’s Motion for Reconsideration (#30)
is GRANTED, and plaintiff may serve defendants with written deposition questions no
later than February 1, 2016.
IT IS FURTHER ORDERED that the discovery deadline is extended to March
1, 2016. The dispositive motion deadline is extended to April 1, 2016.
IT IS FURTHER ORDERED that plaintiff’s Motion to Amend Complaint (#32)
is DENIED.

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IT IS FURTHER ORDERED that plaintiff’s Motion to Compel Discovery (#33)
is DENIED.
IT IS FURTHER ORDERED that plaintiff’s Motion for Change of Judge (#36)
is DENIED.
IT IS FINALLY ORDERED that plaintiff’s Motions for Rulings (#39, #40) are
DENIED as moot.

Dated this 6th day of January, 2016.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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