McGee v. Kurth

Filing 21

MEMORANDUM AND ORDER re: 15 MOTION to Compel filed by Plaintiff Jimmie Tyrone McGee, 13 PRO SE MOTION Temporary Restraining Order Without Notice filed by Plaintiff Jimmie Tyrone McGee, 14 MOTION to Compel filed by Plaintiff Jimmie Tyrone McGee. Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for a temporary restraining order 13 is denied. IT IS FURTHER ORDERED that plaintiff's motions to compel 14 and 15 are denied. Signed by District Judge Catherine D. Perry on November 19, 2014. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

JIMMIE TYRONE McGEE,
Plaintiff,
vs.
BROOK KURTH,
Defendant.

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MEMORANDUM AND ORDER
Pro se plaintiff Jimmie Tyrone McGee, a prisoner at Northeast Correctional
Center in Bowling Green, filed this Section 1983 suit against Northeast corrections
case manager Brook Kurth. McGee alleges that Kurth wrote him a false conduct
violation in retaliation for his filing two grievance appeals and that he was later
found not guilty of that conduct. Upon review under 28 U.S.C. § 1915A, the court
found that McGee had stated a claim for First Amendment retaliation.
This action is now before the court on three motions filed by McGee. I will
deny his motion for a temporary restraining order because his request concerns
nonparties and is based on incidents not related to his original claim. I will deny
his two discovery motions because they seek overbroad, irrelevant, or
undiscoverable information and because Kurth has responded adequately to
McGee’s discovery requests.

I.

Temporary Restraining Order
First, McGee requests a temporary restraining order against Kurth and

various nonparties prohibiting them from retaliating against him for “his exercise
of his inalienable right to petition the government for the redress of grievances.”
In support of this motion, McGee alleges that he has filed several Informal
Resolution Request (IRR) forms, which are part of the administrative grievance
process at Northeast, and has been threatened and retaliated against for doing so.
He also alleges generally that his private property has been confiscated. In an
affidavit he submitted in support of his motion, McGee recounts several incidents
in which: he was repeatedly denied access to the law library by a nonparty staff
member; another nonparty staff member read his legal mail and confiscated the
envelope it came in; he was prevented from filing all the IRRs he wanted to file; he
was issued improper conduct violation reports and refused an opportunity to rebut
the allegations to the extent he wished; and he was treated disrespectfully on
multiple occasions by various nonparty prison staff. In addition, McGee submits a
“Declaration of Truth” from fellow inmate Michael-Andrew Jackson Pulliam.
Most of the Declaration describes Pulliam’s own complaints against corrections
staff, but he also alleges that he witnessed a search of McGee and his cell.
A temporary restraining order is an extraordinary remedy whose
applicability rests completely with the moving party. Williams Pipe Line Co. v.
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City of Mounds View, Minn., 651 F. Supp. 544, 548 (D. Minn. 1986); see also
Dataphase Sys., Inc. v. CL Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981) (listing
factors to consider). Preliminary relief is intended to “preserve the status quo and
prevent irreparable harm until the court has an opportunity to rule on the lawsuit’s
merits.” Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994) (per curiam); see
also Goff v. Harper, 60 F.3d 518, 520 (8th Cir. 1995).
McGee has not demonstrated that he is entitled to a temporary restraining
order. First, temporary restraining orders (and preliminary injunctions)1 only bind
parties, their agents and employees, and those acting in active concert or
participation with them. See Fed. R. Civ. P. 65(d)(2). None of McGee’s
allegations in this motion relate to Kurth. McGee argues in his reply that the
nonparty corrections staff he complains about were Kurth’s agents or co-workers.
But without more, the fact that people work together is insufficient to demonstrate
that they are acting in active concert and could be bound by an injunction. See
Thompson v. Freeman, 648 F.2d 1144, 1147-48 (8th Cir. 1981) (nonparty may be
enjoined only if its interests closely “identify with” those of defendant; when

1

In his motion and its accompanying filings, McGee also references a motion for preliminary
injunction. It is not clear if he intended to file a combined motion requesting both a temporary
restraining order and a preliminary injunction or whether he intended to file a separate motion
that was not in fact filed. Regardless, McGee has not shown that any form of preliminary relief
should be granted.

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nonparty and defendant are in “privity”; or where defendant “represents” or
“controls” nonparty).
Second, a moving party “must establish a relationship between the injury
claimed in the party’s motion and the conduct asserted in the complaint.” Devose,
42 F.3d at 471 (citing Penn v. San Juan Hosp., Inc., 528 F.2d 1181, 1185 (10th Cir.
1975)). In Devose, an inmate injured in a prison van accident brought suit
claiming prison officials had denied him adequate medical care. He later sought a
preliminary injunction, claiming the officials were retaliating against him for his
lawsuit. The Eighth Circuit held that “new assertions of mistreatment that are
entirely different” from the plaintiff’s original claim might support additional
claims but could not support the imposition of a preliminary injunction. Id.
Likewise here, McGee has alleged violations of different rights, committed by
different people, at different times, and in different ways than his original claim
against Kurth. They might conceivably provide the basis for claims against other
prison staff, but they are not so related to his First Amendment retaliation claim to
sustain a temporary restraining order. As such, I will deny his motion.
II.

Discovery Motions
McGee also moves to compel Kurth to respond more completely to his

interrogatories and requests for production of documents. As a threshold matter,
any motion concerning discovery, such as a motion to compel, must comply with
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Local Rule 3.04(A)2 and Fed. R. Civ. P. 37(a)(1).3 These rules require that a
discovery motion include a statement of a good-faith attempt to resolve the
discovery dispute prior to the filing of the motion. McGee’s motions have not
contained such a statement, though he did apparently correspond with Kurth after
receiving his answers and objections. Although McGee is incarcerated, he must
correspond with opposing counsel with respect to any discovery or disclosure
dispute prior to filing a motion to compel or other motion relating to discovery or
disclosure. McGee must then describe the nature of that correspondence in the
discovery motion, as required by Local Rule 3.04(A). See Faretta v. California,
422 U.S. 806, 934–35 n.46 (1975) (pro se litigant must comply with relevant rules
of procedure).
That said, in the interest of justice and because both parties have shown
good faith in participating in the discovery process, I have considered the
2

E.D. Mo. L.R. 37–3.04(A) states:
The Court will not consider any motion relating to discovery and disclosure unless it
contains a statement that movant's counsel has conferred in person or by telephone with
the opposing counsel in good faith or has made reasonable efforts to do so, but that after
sincere efforts to resolve their dispute, counsel are unable to reach an accord. This
statement also shall recite the date, time and manner of such conference, and the names
of the individuals participating therein, or shall state with specificity the efforts made to
confer with opposing counsel.

3

Fed. R. Civ. P. 37(a)(1) states that a motion to compel “must include a certification that the
movant has in good faith conferred or attempted to confer with the person or party failing to
make disclosure or discovery in an effort to obtain it without court action.”

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substance of McGee’s arguments and reviewed Kurth’s responses and objections
to McGee’s requests. Kurth answered most of McGee’s requests. For those
requests challenged by Kurth, I find that the objections are appropriate. The
objected-to interrogatories and requests for production are either overbroad (like
McGee’s entire file from the Missouri Department of Corrections) or irrelevant
(like detailed personal information about Kurth). See also Mo. Rev. Stat. §
217.075 (prohibiting the disclosure of information that may affect the safety and
security of a corrections facility). Therefore, I will deny McGee’s motions to
compel because he has not shown he is entitled to the discovery he seeks.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion for a temporary
restraining order [#13] is denied.
IT IS FURTHER ORDERED that plaintiff’s motions to compel [#14 and
#15] are denied.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 19th day of November, 2014.

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