Davis v. Webb et al

Filing 105

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Plaintiff's motions to compel [76, 83, 84, and 86] are DENIED. IT IS FURTHER ORDERED that Plaintiff's motions for extension of time [81, 85, and 91] are DENIED as moot. IT IS FURTHER ORDERED that Plaintiffs Motion Requesting Court to Enlarge Time or Extend Discovery Schedule 94 is DENIED. IT IS FURTHER ORDERED that Plaintiff's Motion to Request Leave of Court to File Amended Admissions 95 is DENIED. IT IS FINALLY ORDERED that Plaintiff's Request for Extension of Time to Respond to Defendants Motion for Summary Judgment 101 is DENIED as moot. Signed by District Judge John A. Ross on 5/2/13. (LAH)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

)
)
)
)
)
)
)
)
)
)
)

FREDERICK P. DAVIS,
Plaintiff,
v.
TERRY WEBB, et al.,
Defendants.

No. 4:11-CV-1906-JAR

MEMORANDUM AND ORDER
This matter is before the Court on the following motions related to discovery filed by
Plaintiff: Motion to Compel [ECF No. 76]; Motion for Extension of Time [ECF No. 81]; Motion
to Compel [ECF No. 83]; Motion to Compel [ECF No. 84]; Motion for Extension of Time [ECF
No. 85]; Motion to Compel [ECF No. 86]; Motion for Extension of Time [ECF No. 91]; Motion
Requesting Court to Enlarge Time or Extend Discovery Schedule [ECF No. 94]; Motion to
Request Leave of Court to File Amended Admissions [ECF No. 95]; as well as Plaintiff’s
Request for Extension of Time to Respond to Defendants Motion for Summary Judgment. [ECF
No. 101]
Background
Plaintiff brings this action under 42 U.S.C. § 1983 for alleged violations of his First
Amendment rights. Specifically, Plaintiff alleges Defendants disciplined him in retaliation for
circulating a petition among inmates against Officer Brian Hall, a non-party. (Third Amended
Complaint (“TAC”), Doc. No. 75)

Motions to Compel
There are four pending motions to compel. (Doc. Nos. 76, 83, 84 and 86) In response to
Plaintiff’s motions, Defendants argue that Plaintiff’s motivation in filing these motions is not to
participate in discovery in good faith, but rather to harass them with frivolous filings. (Doc. Nos.
82, 89) Defendants further respond that Plaintiff has failed to comply with the local rules by
communicating with them in an attempt to resolve any discovery disputes prior to filing his
motions. (Id.)
As a threshold matter, any motion concerning discovery, such as a motion to compel,
must comply with Local Rule 3.04(A)1 and Rule 37(a)(1)2, Fed.R.Civ.P. These rules require that
a discovery or disclosure-related motion include a statement of a good-faith attempt to resolve
the discovery dispute prior to the filing of the motion. The Court is compelled to point out that
in the plethora of motions Plaintiff has filed with the Court, not one of his filings contains such a
statement. Although Plaintiff 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. Plaintiff must then describe the nature of that correspondence

1

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.

2

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.”

-2-

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).3 That
said, the Court will address Plaintiff’s motion in turn.
In his Motion for an Order Compelling Discovery of Defendants’ Interrogatories and
Production of Documents (Doc. No. 76) filed December 31, 2012, Plaintiff seeks an order
compelling Defendants to respond to his first set of interrogatories and second set of requests for
production of documents. In response, Defendants state they received Plaintiff’s discovery on
December 3, 2012, and mailed their responses to his first set of interrogatories and second set of
requests for production of documents, as well as their supplemental initial disclosures on
December 27, 2012 without delay and within 30 days of receipt.4 (Doc. No. 82) Because
Defendants timely responded to Plaintiff’s requests, Plaintiff’s motion to compel [76] will be
denied.
In his Motion for an Order Compelling Discovery (Doc. No. 83) filed January 24, 2013,
Plaintiff states he submitted a “motion for production of documents” on or about December 13,
2012, but has not yet received the documents requested. Defendants respond that they received
Plaintiff’s Third Request for Production of Documents on December 20, 2012, and timely mailed
over 40 pages of responsive documents to Plaintiff on January 18, 2013. (Doc. No. 89, p. 2)
3

On February 22, 2013, Plaintiff filed his Response to Defendants’ Motion in Opposition to
Plaintiff’s Motion(s) to Compel (Doc. No. 93) wherein he states that “as of February 11, 2013,
Plaintiff sent Defendants a correspondence requesting the same documents listed in Plaintiff’s
motions(s) to compel in an attempt to resolve the conflict and expedite the discovery process.”
(Id., ¶ 8) On March 15, 2013, Plaintiff filed a Supplement Response stating that he has attempted
to communicate with Defendants to resolve the discovery disputes, but that Defendants have
been evasive with regard to his interrogatories and requests for production of documents. (Doc.
No. 99)
4

The responding party must serve its answers and any objections within 30 days after being
served with interrogatories. Fed.R.Civ.P. 33(b)(2). The party to whom a request for production is
directed must respond in writing within 30 days after being served. Fed.R.Civ.P. 34(b)(2)(A).
-3-

Because Defendants timely responded to Plaintiff’s Request, Plaintiff’s motion to compel [83]
will be denied.
In his Motion for an Order Compelling Discover [sic] (Doc. No. 84) also filed January
24, 2013, Plaintiff seeks an order from this Court compelling Defendants to fully answer
interrogatories directed at Timothy Lancaster (nos. 5, 15, and 17), Terry Webb (nos. 14, 15, 18,
19) and Ian Wallace (nos. 8, 9, and 13). The Court has reviewed the interrogatories served on
Defendants Lancaster, Webb and Wallace and makes the following rulings:
Interrogatories directed to Defendant Lancaster (Doc. No. 84-1)
5) Have you ever been reprimanded, verbally or written while you have been
employed with the Missouri Department of Correction, for any reason?
Lancaster objects on grounds of relevance. Lancaster also objects because Mo. Rev. Stat.
§ 217.075 prohibits the disclosure of information that may affect the safety and security of a
corrections facility and because under Mo. Rev. Stat. § 610.021, personnel files of state
employees are closed records. Lancaster states that to the extent Plaintiff now claims an answer
to this request will show some bias or falsified documents in this case, he has already answered
in his interrogatories that he had no bias and did not falsify any documentation. In addition,
Lancaster produced an unredacted version of his investigation report with a witness statement
against Plaintiff. The Court finds this response sufficient and provides no basis for an order
compelling Defendant Lancaster to supplement his answer.
15) In the context and definition established in the offender rulebook for [9.3Inciting Organized Disobedience]. Although you sited Frederick P. Davis as the
individual who incited organized disobedience of offenders, shouldn’t more
offenders have been locked up for participating?
Lancaster objects on the grounds that this is not relevant as to whether Plaintiff attempted
to organize or incite offenders to disobey. Again, to the extent Plaintiff now claims an answer to

-4-

this request will show some bias or falsified documents in this case, Lancaster states he already
answered in his interrogatories that he had no bias and did not falsify any documentation. In
addition, he produced an unredacted version of his investigation report with a witness statement
against Plaintiff. The Court finds this response sufficient and provides no basis for an order
compelling Defendant Lancaster to supplement his answer.
17) Did any offender, other than the one who made the allegation, tell you Frederick
P. Davis circulated a Petition of IRR to them?
Lancaster objects on the grounds of relevance. Whether there were other offenders who
reported Plaintiff is information relevant to Plaintiff’s claim; however, relevant evidence may
still be excluded if its probative value is outweighed by the harm likely to result from its
admission. Because the Court finds that disclosing the identity of those individuals, if any, who
reported Plaintiff would implicate the safety and security of both the individuals and the
corrections facility itself, the Court will not compel Lancaster to answer.
Interrogatories directed to Defendant Wallace (Doc. 84-2)
8) In accordance with the rules of the grievance procedure, did Frederick P. Davis
have a right to use the grievance procedure to file a complaint against CO-I Brian
Hall for what he deemed to be inappropriate behavior and offender abuse?
Wallace objects on the grounds that the grievance policies speak for themselves and that
Plaintiff is improperly asking for his interpretation of policies and procedures. Moreover,
Plaintiff has access to the policies and procedures. Finally, these policies are not relevant to
Plaintiff’s claim in that he was disciplined for inciting organized disobedience, and not for filing
a standard IRR. Because the information Plaintiff seeks is not relevant to his claim, the Court
will sustain Wallace’s objection.
9) Did Frederick P. Davis have a right to request as a remedy to his grievance, for
CO-I Brian Hall to be removed from housing unit (5) five (PAC) unit?

-5-

Wallace objects on the grounds of relevance. Again, Plaintiff was disciplined for inciting
organized disobedience, and not for filing a standard IRR. Because the information Plaintiff
seeks is not relevant to his claim, the Court will sustain Wallace’s objection.
13) Was the documents Timothy Lancaster based the [9.3- Inciting Organized
Disobedience] conduct violation on he issued to Frederick P. Davis an [IRRGrievance and a letter]?
Wallace objects on the grounds that the conduct violation and report speaks for itself and
that it appears Plaintiff is improperly asking him to interpret Lancaster’s conclusions. Moreover,
Defendants produced to Plaintiff the conduct violation and report which contains additional
evidence of Plaintiff inciting organized disobedience, including a witness statement. The Court
will sustain Wallace’s objection.
Interrogatories directed to Defendant Webb (Doc. No. 84-3)
14) Is it a violation of any rule at the Potosi Correctional Center or Department of
Correction to show another offender an [IRR]?
Webb objects on the grounds of relevance. Again, Plaintiff was disciplined for inciting
organized disobedience, and not simply for showing another offender an IRR. Because the
information Plaintiff seeks is not relevant to his claim, the Court will sustain Webb’s objection.
15) While as functional unit manager at Potosi Correctional Center, did you receive
any type of complaints from offenders regarding CO-I Brian Hall?
Webb objects on the grounds of relevance since this has no bearing on whether Plaintiff
incited organized disobedience. Further, complaints by other offenders are confidential and
closed records and cannot be disclosed to Plaintiff. Mo. Rev. Stat. § 610.021. The Court will
sustain Webb’s objection.
18) Was it possible for you to get the names of the offenders Frederick P. Davis
requested to be interviewed from Timothy Lancaster?
Webb objects on the grounds that there is sufficient evidence to find Plaintiff guilty of

-6-

inciting organized disobedience as shown in the investigative report. Without waiving his
objection, Webb subsequently answered this question in one of the several other discovery
requests sent to Defendants. Specifically, in Plaintiff’s First Request for Admissions directed to
Defendant Webb, Webb was asked to admit “that you could have gotten the names of the
inmates Frederick P. Davis requested to be interviewed from Timothy R. Lancaster,” and he
denied this. The Court finds that Webb has answered Plaintiff’s interrogatory and there is no
basis for an order compelling Defendant Webb to supplement his answer.
19) Did you review the video surveillance tapes Frederick P. David requested as
evidence?
Webb objects on the grounds that there was sufficient evidence to find Plaintiff guilty of
inciting organized disobedience as shown in the investigative report. Without waiving his
objection, Webb subsequently responded to Plaintiff’s third Request for Production of
Documents, stating Defendants were not aware of the existence any video surveillance footage
relevant to this case. The Court finds that Webb has answered Plaintiff’s interrogatory and there
is no basis for an order compelling Defendant Webb to supplement his answer.
As Defendants have properly objected and responded to Plaintiff’s first set of
interrogatories, Plaintiff’s Motion to Compel (Doc. No. 84) will be denied.
In his Motion for an Order Compelling Discovery of Documents from Defendants (Doc.
No. 86), Plaintiff seeks documents responsive to request numbers 3-11, 13, 15, 16, 18 and 19. In
response to Defendants’ Opposition to Plaintiff’s Motions to Compel, Plaintiff characterizes
Defendants’ answers as “vague, incomplete and untruthful.” (Doc. No. 93)
The Court has reviewed the requests for production of documents and makes the
following rulings:
Request for Production No. 3: Plaintiff seeks the written statements which Deputy Division

-7-

Director Dwayne Kempker claims to have reviewed and relied upon for his response to
Plaintiff’s offender grievance appeals. Defendants object because Kempker is not a party to this
action and because § 217.075 prohibits the disclosure of information that may affect the safety
and security of a corrections facility. Because Plaintiff has been provided with an unredacted
copy of the investigation report, Defendants’ objections will be sustained.
Request for Production No. 4: Plaintiff seeks written statements, reports and memoranda
regarding the incident of November 23, 2010, which identify the staff member who reported the
allegation to Defendant Lancaster. Defendants object based on security concerns. In addition,
Defendants state they produced documents showing an offender, not a staff member, reported
Plaintiff’s conduct. Defendants’ objection will be sustained.
Request for Production Nos. 5, 6, 7, 9: Plaintiff seeks written statements, reports and
memoranda regarding the incident of November 23, 2010, which identify the offender who
reported the allegation to Defendant Lancaster, and the caseworker, and which reference any
conversations Lancaster had regarding Plaintiff with any offenders during the investigation.
Defendants objected based on safety and security concerns about releasing the reporting
offender’s name, and instead issued a redacted investigation report. Defendants state that after
learning of the death of this inmate, they produced an unredacted investigative report (Bates
labeled Davis 193-195) on January 18, 2013 with their responses to Plaintiff’s third set of
requests for production of documents with the reporting offender’s name. The Court finds
Defendants have fully responded to Plaintiff’s request.
Request for Production No. 8: Plaintiff seeks rules, regulations, standard operating procedures
and policies of the MDOC and Potosi Correctional Center which provide that “showing other
offender an IRR is a violation of the rules.” Without waiving their objection that Plaintiff’s
request was argumentative and an attempt to mischaracterize the rules, Defendants state they
produced the applicable rules to Plaintiff. The Court finds Defendants have fully responded to
Plaintiff’s request.
Request for Production No. 10: Plaintiff seeks MDOC Policy and Regulations for conducting
an investigation. Even if there were no security concerns associated with supplying these policies
to prisoners, the Court agrees with Defendants that the policies and procedures for conducting an
investigation are not relevant to Plaintiff's claim of retaliation. Defendants’ objection will be
sustained.
Request for Production No. 11: Plaintiff seeks the officers’ code of conduct requirements.
Defendants object on the grounds of relevance. Even if there were no security concerns
associated with supplying the policies regulating officer conduct to prisoners, the Court agrees
with Defendants that they are not relevant to Plaintiff's claim. Moreover, Defendants state that
once Plaintiff narrowed his request to a specific non-confidential policy, Defendants provided
policies D2-11.10 Staff Conduct (Bates labeled Davis 154- 165), and D1-8.6 Offender Abuse
(Bates labeled Davis 183-192), on January 18, 2013 in response to Plaintiff’s third request for
production of documents. The Court finds Defendants have fully responded to Plaintiff’s request.
Request for Production No. 13: Plaintiff seeks the first page of the letter Defendant Lancaster

-8-

confiscated from Plaintiff. Subject to their objection that the request is not limited as to time,
Defendants state they produced the documents confiscated from Plaintiff’s property. The Court
finds Defendants have fully responded to Plaintiff’s request.
Request for Production No. 15: Plaintiff seeks the IRRs claimed to be in his handwriting.
Subject to Defendants’ objections based on safety and security concerns, Defendants state they
produced these documents (Bates labeled Davis 1-6) as well as the unredacted investigation
report (Bates labeled Davis 193-195) on January 18, 2013 with their responses to Plaintiff’s third
set of requests for production of documents showing the reporting offender’s statement against
Plaintiff. The Court finds Defendants have fully responded to Plaintiff’s request.
Request for Production No. 16: Plaintiff seeks all conduct violation reports written by CO-I
Brian Hall from 2009-2010 with the race of each offender identified. Defendants object on
grounds of relevance. Plaintiff contends that Defendant Lancaster falsified his investigative
report. He bases this on a perceived contradiction between Lancaster’s statement that Hall’s
reports were “exactly” 50% white and 50% black and Lancaster’s response to Plaintiff’s request
for admissions, wherein he stated that Hall’s reports were “approximately” 50% white and 50%
black. Plaintiff’s contention is without merit. Moreover, the Court agrees that there are safety
and security concerns associated with producing the disciplinary records of other offenders.
Defendants’ objections will be sustained.
Request for Production Nos. 18, 19: Plaintiff seeks IRR-Grievances that Lancaster claims are
duplicates of Plaintiff’s IRR-Grievance as well as those dropped after Plaintiff was placed in
administrative segregation. Defendants object on grounds of relevance and because the request is
not limited in time or to the allegations of Plaintiff’s complaint. Further, pursuant to § 610.021,
grievances filed by other offenders are confidential and closed records which cannot be disclosed
to Plaintiff. Subject to their objections, Defendants produced the unredacted investigation report
(Bates labeled Davis 193-195) on January 18, 2013 with their responses to Plaintiff’s third set of
requests for production of documents) showing the reporting offender’s statement against
Plaintiff. The Court finds Defendants have fully responded to Plaintiff’s request.
Motions for Extension of Time
There are five motions seeking extensions of time. (Doc. Nos. 81, 85, 91, 94, 101) On
January 16, 2013, Plaintiff requested an extension of time up to and including February 14, 2013
to respond to Defendants’ objections to his interrogatories and document requests. (Doc. No. 81)
On January 25, 2013, Plaintiff filed his Response to Defendants’ Objections. Thus, Plaintiff’s
motion [81] will be denied as moot.
With respect to Plaintiff’s Motions for Extension of Time to Respond (Doc. Nos. 85, 91),
in light of Plaintiff’s Response to Defendants’ Motion in Opposition to Plaintiff’s Motion to

-9-

Compel (Doc. No. 90) filed February 1, 2013, and Plaintiff’s Response to Defendants’ Response
to Defendants’ Motion in Opposition to Plaintiff’s Motions to Compel (Doc. No. 93) filed
February 22, 2013, Plaintiff’s motions [85, 91] will be denied as moot.
On March 7, 2013, Plaintiff filed a Motion to Enlarge Time or Extend Discovery
Schedule. (Doc. No. 94) and a Motion to Request Leave of Court to File Amended Admissions.
(Doc. No. 95) Defendants oppose Plaintiff’s motions on the grounds that discovery closed in this
case over three months ago, on January 18, 2013. The case is straight forward and not complex
and Plaintiff has had ample opportunity to conduct discovery, serving multiple requests for
production of documents, admissions and interrogatories. (Doc. No. 96) The Court has reviewed
Plaintiff’s amended admissions, and finds them to be argumentative and not true requests for
admission. Moreover, Defendants filed their motion for summary judgment on March 18, 2013
(Doc. No. 97) and Plaintiff filed his response on April 18, 2013. (Doc. No. 102) For all these
reasons, Plaintiff’s motions [94, 95] will be denied.
Finally, Plaintiff requests an extension of time to respond to Defendants’ Motion for
Summary Judgment. (Doc. No. 101) In light of his Memorandum and Brief in Support of
Plaintiff’s Response to Defendant’s Motion for Summary Judgment filed April 18, 2013 (Doc.
No. 102), Plaintiff’s motion will be denied as moot.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s motions to compel [76, 83, 84, and 86] are
DENIED.
IT IS FURTHER ORDERED that Plaintiff’s motions for extension of time [81, 85, and
91] are DENIED as moot.
IT IS FURTHER ORDERED that Plaintiff’s Motion Requesting Court to Enlarge Time

- 10 -

or Extend Discovery Schedule [94] is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Request Leave of Court to File
Amended Admissions [95] is DENIED.
IT IS FINALLY ORDERED that Plaintiff’s Request for Extension of Time to Respond
to Defendants Motion for Summary Judgment [101] is DENIED as moot.

_________________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

Dated this 2nd day of May, 2013.

- 11 -