Perry v. State of Missouri

Filing 130

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion to compel (#124) is GRANTED in part and DENIED in part as provided herein. Signed by District Judge Stephen N. Limbaugh, Jr on 6/7/2013. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

MARK R. PERRY,

)
)
Plaintiff,
)
)
vs.
)
)
BARRY MARTIN, DWAYNE DARDEN, & )
CITY OF ST. LOUIS, MISSOURI
)
)
Defendants.
)

Case No. 4:10-CV-2436 SNLJ

MEMORANDUM AND ORDER
This is 42 U.S.C. § 1983 claim brought by a City of St. Louis detainee against two
officers (in their individual and official capacities) who allegedly beat him, the Commissioner of
Corrections for the City of St. Louis (in his official capacity), and the City of St. Louis.
FACTUAL BACKGROUND
Plaintiff’s complaint alleges that he was incarcerated in the City of St. Louis and
assigned to a one-man cell in the administrative segregation unit. Defendants Martin and Darden
were the officers assigned to serve plaintiff lunch. Plaintiff requested hand soap from Martin
before he ate lunch. Martin refused plaintiff’s request, and when plaintiff complained and asked
for the captain, Martin allegedly responded by threatening plaintiff and then returning with
defendant Darden, entering plaintiff’s cell, and beating plaintiff. Plaintiff alleges that Darden
witnessed the beating but failed to stop it, and that neither officer summoned medical help.
Plaintiff was left alone in his cell, bleeding from his mouth. Nearly two hours later, the captain
took a written and video-recorded statement from plaintiff. Plaintiff alleges that Martin and
Darden had documented histories of malicious and sadistic use of force against inmates.
Plaintiff further alleges that the City of St. Louis and Commissioner Stubblefield knew or should

have known about the widespread malicious and sadistic use of force by corrections officers,
including Martin and Darden, under his charge. Further, plaintiff alleges that Stubblefield and
the City failed to discipline officers for their prior unlawful uses of force and that their failure to
do so resulted in additional acts of malicious and sadistic uses of force against inmates.
Plaintiff also purports, in his Second Amended Complaint, to proceed on behalf of
himself and on behalf of a similarly-situated class of current and future inmates. Defendants, in
their response, deny that plaintiff has made the requisite showing to sustain a class action.
Plaintiff has not moved for class certification.
Plaintiff has requested documents from City officials that he says he needs in order to
pursue his claims. Defendants have denied the requests. Plaintiff filed his motion to compel
(#124) on March 29, 2013. The matter has been fully briefed and is now ripe for disposition.
DISCUSSION
I.

Legal Standard
Under Federal Rule of Civil Procedure Rule 26(b)(1), parties may obtain discovery

“regarding any matter, not privileged, that is relevant to the claim or defense of any party.”
Relevancy is broadly construed, and “a request for discovery should be considered relevant if
there is any possibility that the information sought may be relevant to the claim or defense of any
party.” Breon v. Coca-Cola Bottling Co. of New England, 232 F.R.D. 49, 52 (D. Conn. 2005)
(original emphasis). Even if relevant, however, “discovery is not permitted where there is no
need shown or compliance would be unduly burdensome, or where harm to the person from
whom the discovery is sought outweighs the need of the person seeking the information.”
Miscellaneous Docket Matter No. 1 v. Miscellaneous Docket Matter No. 2, 197 F.3d 922, 925
(8th Cir. 1999), quoting Micro Motion, Inc. v. Kane Steel Co., 894 F.2d 1318, 1323 (Fed. Cir.
1990).
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Each document request and interrogatory at issue between the parties is discussed in turn
below.
II.

Plaintiff’s Discovery Requests
Plaintiff requested documents from (1) the City’s “Grievance Coordinator,” (2) the City

Board of Aldermen’s designee for monitoring and reviewing City inmate grievances, and (3) the
City Director of Personnel. The requests seek documents that plaintiff says will establish the
City’s liability in this matter.1 Indeed, “[a] city is not vicariously liable for the acts of its
employees, but is liable under § 1983 when the employee’s acts execute or implement a
municipal custom or policy.” Parrish v. Luckie, 963 F.2d 201, 204 (8th Cir. 1992). Further,
“[t]o establish a city’s liability based on its failure to prevent misconduct by employees, the
plaintiff must show that city officials had knowledge of prior incidents of police misconduct and
deliberately failed to take remedial action.” Id.; Harris v. Pagedale, 821 F.2d 499, 504 (8th Cir.),
cert. denied, 484 U.S. 986 (1987); Andrews v. Fowler, 98 F.3d 1069, 1074-75 (8th Cir. 1996).
In accordance with those principles, plaintiff must prove prior notice and inadequate
response to such notice in order to prevail against the City. Id. Many of plaintiff’s document
requests go to those matters, and the requests are discussed separately below.

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The Court notes that the City has been named as a defendant, and it is also a defendant
by virtue of plaintiff’s naming Commissioner Stubblefield as a defendant in his official capacity
only.
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A.

Request Directed to Grievance Coordinator

Plaintiff requested from the Grievance Coordinator,
1.
A report or compilation of any and all grievance files (non-redacted)
since 2003 relating to inmate complaints of excessive or unnecessary force,
and/or failure to protect.
Plaintiff notes that the City’s grievance policy requires the Grievance Coordinator to
collect, electronically track, and preserve all inmate grievances by “Classification Number.” For
example, Classification “g(1)” is “Excessive use of force, “g(7)” is “Abuse by Staff,” and “h(4)”
is “failure to protect.” The requested report goes to what the City knew about its officers’
behavior.
Defendant responds that it should not be required to produce such documents because the
time period is overly broad, it calls for nonparties’ confidential employment or inmate records,
and it does not relate to matters in the pleadings. Defendants assert that they have already
produced documents related to the plaintiff himself, and the individuals implicated by the request
have nothing to do with the events in plaintiff’s complaint. They also state it would be unduly
burdensome to search through the 550 employee files that are implicated. Plaintiff is not asking
for defendants to search personnel files. Rather, he requests a copy of the report that the
Grievance Coordinator is required to compile by the City’s Grievance Policy. Defendants do not
contest that the Grievance Coordinator is required to collect, track, and preserve grievances by
Classification Number; the complaint that defendants would have to search 550 employee files is
irrelevant in that, assuming the Coordinator has been compiling the information per the Policy,
no such search would be necessary.
Further, plaintiff’s request is relevant to the issue of whether the City was on notice of
the problems of “excessive force” and “failure to protect inmates.” Plaintiff is entitled to that
information; however, the Court will limit the request to reports since 2005.
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B.

Requests Directed to City Board of Aldermen Designee

The Grievance Policy directs the City Board of Alderman or its designee to monitor and
review the City inmate grievances. The Board apparently designated Craig Schmid, the Chair of
the Public Safety Committee, for that role. Thus, plaintiff requested various documents from
Mr. Schmid. Each request is discussed below.
1.
Any and all reports, findings, transcripts, and/or analyses (written or
electronic) issued by or received by the Public Safety Committee’s “External
Review Committee” since 2003 relating to the Division of Corrections.
Defendants maintain that there are no documents responsive to this request (they also
state that the request is overly broad and not likely to lead to the discovery of admissible
evidence). Plaintiff is skeptical of defendants’ claim because the Public Safety Committee has
subpoenaed records and held hearings regarding the corrections division, and because there has
been an “External Audit Committee” since 2003.
However, Mr. Schmid’s response states that he is “not part of any External Review
Committee.” Because it is unclear how the External Review Committee is related to the Public
Safety Committee, the Court finds it is unclear just whether Mr. Schmid has custody or control
over any such documents. In addition, the Court agrees that this request, on its face, is overly
broad to the extent it requests documents not relevant to whether the City was on notice of
problems with excessive force or failure to protect. To the extent Mr. Schmid possesses
documents that are responsive to the request (limited to matters pertaining to excessive force or
failure to protect inmates), he should produce them. The Court will also limit the scope of the
request’s time period to extend back to 2005 rather than 2003.
2.
To the extent not already provided, any and all reports, findings,
transcripts and/or analyses (written or electronic) issued by or received by the
Board of Alderman (or committee) since 2003 concerning or pertaining to inmate
abuse, excessive force, failure to protect, inadequate training or supervision
within the Division of Corrections.
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and
3.
A report or compilation of any and all judgments, settlement agreements,
consent decrees and/or payments involving the Division of Corrections since
2003 and stemming from complaints of current or former inmates about abuse,
excessive force, inadequate training or supervision, failure to discipline, and/or
failure to protect.
Again, defendants contend that Mr. Schmid has no documents responsive to these
requests. To the extent plaintiff is still incredulous, other discovery avenues are open to plaintiff
to determine just what Mr. Schmid knows or over what items he has custody or control. The
Court agrees with plaintiff that the materials plaintiff seeks go to the City’s notice of and
response to earlier incidents of excessive force and failure to protect, but the Court will limit
production to documents related to those matters or other matters going to the City’s liability in
this case. The Court will also limit the scope of the request’s time period to extend back to 2005
rather than 2003.
C.

Requests Directed to Director of Personnel

Finally, plaintiff requested numerous documents from the City’s Director of Personnel,
Richard Frank. Each request is discussed below.
1.
Any and all written or electronic communications (non-redacted)
authored by you or any Department of Personnel officials since January 2005
and directed to Eugene Stubblefield or any other Division of Corrections official
concerning or pertaining to the Division of Corrections’ failure to comply with
Regulation #117 (Disciplinary Policy).
and
2.
Any and all written or electronic communications (non-redacted)
authored by you or your agents since January 2005 directed to office of the
Mayor, President of the Board of Alderman, Public Safety Committee of the
Board of Alderman, Public Safety Director, and/or the Civil Service Commission
in any way referencing Stubblefield’s or the Division of Corrections’ failure to
comply with Regulation #117 (Disciplinary Policy).

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Defendants argue that these requests are overly broad and do not relate to matters in the
pleadings, but the requested documents again pertain to whether the City tacitly allowed, was
deliberately indifferent to, or failed to investigate matters of excessive force or failure to protect
inmates within the Division of Corrections. Defendants also object on the basis that the requests
implicate personnel records, but plaintiff is not seeking a complete copy of any individual’s
personnel record. Finally, to the extent the requests call for the production of privileged
information, defendants may provide a privilege log of documents over which they claim a
privilege. The Court agrees with plaintiff that the materials plaintiff seeks go to the City’s notice
of and response to earlier incidents of excessive force and failure to protect, but the Court will
limit production to documents related to those matters.
3.
Any and all pre-disciplinary hearing notice(s) or pre-termination hearing
notification(s) issued by Eugene Stubblefield or any other Division of Corrections
official since May 2005, and received by you or any other Department of
Personnel official.
The Court agrees with defendants that this request is overly broad. Defendants shall be
compelled to produce such documents only as they pertain to matters related to excessive force
or failure to protect inmates.
4.
Any and all Change in Employee Status forms (written or electronic) issued by
Eugene Stubblefield or any other Divisions of Corrections official since May 2005 and
received by you or any other Department of Personnel official.
Neither party discusses this request specifically. It is not clear how such Forms would fit
into plaintiff’s discovery strategy. Defendant Darden’s Change in Employee Status form is
mentioned in a document attached to plaintiff’s Second Amended Complaint (#113-2) as
indicating to the Director of Personnel that the time limitations set forth by City disciplinary
policy had not been followed. But there is no indication that a request for all Division of
Corrections Change in Employee Status Forms would result in documents that are relevant to the

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claim or defense of any party. As a result, defendant will not be compelled to respond further to
this request.
5.
A true and accurate copy (written or electronic) of Department of
Personnel Regulation #117 and any amendment, modifications, and/or
annotations since May 2005.
Defendants indicate that they have responded to this request with the requested
documents (after having initially objected to it as overly broad). Plaintiff does not dispute that,
so the Court presumes that the parties’ disagreement with respect to this request has been
resolved.
6.
Any and all requests (written, electronic or otherwise) from any Division
of Corrections official requesting modification or amendment of Regulation # 117
(Disciplinary Policy) for the Division of Corrections.
Defendants’ objection is that this request is overly broad and not reasonably calculated to
lead to the discovery of admissible evidence. Again, although plaintiff argues the merits of his
case in his memoranda, he does not articulate why defendants should be compelled to produce
documents responsive to this specific request. Defendants will not be compelled to respond.
7.
A report (written or electronic) of any and all individuals ever assigned to
the Division of Corrections since May 2005. The report should include the full
name, date of birth, social security number, last known residential address, last
known telephone number, and last known personal e-mail address for each
individual. Plaintiff hereby agrees to the entry of a protective order barring the
contemplated report from being physically shared with Mark R. Perry or any
other inmate and/or limiting the dissemination of the report to counsel for
plaintiff and paralegal team.
Although defendants do not contest that the Director of Personnel is required to record
the requested information and that the Director maintains such records electronically, plaintiff
does not explain why he is entitled to the full listing of Division of Corrections personnel.
Furthermore, the request seems more appropriately posed as an interrogatory. Defendants will
not be compelled to respond.

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8.
A report (written or electronic) listing each and every Division of
Corrections official who has been terminated, suspended or reprimanded in
accordance with Regulation # 117 since May 2005. The report should list the
corresponding reason(s) for each disciplinary action effected in accordance with
Regulation # 117.
The Court agrees with defendants that this request is overly broad. Defendants shall be
compelled to produce such documents only as they pertain to matters related to excessive force
or failure to protect inmates. However, again, especially to the extent the Director of Personnel
has no responsive documents, the request may be more appropriately posed as an interrogatory.
9.
A report (written or electronic) listing each and every Division of Corrections
official whose proposed termination, suspension or reprimand was reversed since May
2005 by you or any other Department of Personnel official because the Division of
Corrections failed to comply with Regulation # 117.
The Court agrees with defendants that this request is overly broad. Defendants shall be
compelled to produce such documents only as they pertain to matters related to excessive force
or failure to protect inmates. However, again, especially to the extent the Director of Personnel
has no responsive documents, the request may be more appropriately posed as an interrogatory.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to compel (#124) is GRANTED in
part and DENIED in part as provided herein.

Dated this

7th

day of June, 2013.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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