BAKER v. DURHAM COUNTY S.W.A.T. TEAM et al
Filing
109
ORDER signed by JUDGE WILLIAM L. OSTEEN, JR on 09/28/2018, that the Magistrate Judge's orders (Text Order dated June 11, 2018, and Text Order dated July 13, 2018) are hereby AFFIRMED and that Plaintiff's motion to extend time, (Doc. 83 ), and Plaintiff's motion to compel discovery, (Doc. 85 ), are DENIED. FURTHER that the Magistrate Judge's Recommendation, (Doc. 104 ), is ADOPTED. FURTHER that Defendant Rosencrans' motion to dis miss for failure to state a claim, (Doc. 77 ), and motion for summary judgment, (Doc. 93 ), are GRANTED and that Plaintiff's claims as to Defendant Rosencrans are DISMISSED WITH PREJUDICE. The Clerk is hereby DIRECTED to set the remaining c laims as to Defendants JOSE LUIS LOPEZ, SR., and DAVID TODD ROSE for trial. The Clerk is further DIRECTED to set a date, following the trial of Jose Luis Lopez, Sr., and David Todd Rose, for a hearing as to the entry of a DEFAULT JUDGMENT as to Defendant CITY OF DURHAM as a result of the Magistrate Judge's ENTRY OF DEFAULT by Text Order dated June 11, 2018. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
BRIAN JOSHUA BAKER,
Plaintiff,
v.
CITY OF DURHAM, et al.,
Defendants.
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1:14CV878
ORDER
This matter is before this court for review of the
Memorandum Opinion and Recommendation (“Recommendation”) filed
on July 13, 2018, by the Magistrate Judge in accordance with
28 U.S.C. § 636(b). (Doc. 104.) In the Recommendation, the
Magistrate Judge recommends that Defendant Dorothea Alene
Rosencrans motion to dismiss for failure to state a claim, (Doc.
77), and motion for summary judgment, (Doc. 93), be granted. The
Recommendation was served on the parties to this action on
July 13, 2018. (Doc. 105.) Plaintiff filed objections. (See
Docs. 106, 108.) However, those objections, as will be explained
further hereafter, are directed to Text Orders dated June 11,
2018 and July 13, 2018, by the Magistrate Judge denying
Plaintiff’s motion to compel, (Doc. 85), and denying Plaintiff’s
motion to extend the deadline for completion of discovery, (Doc.
83).
This court finds that Plaintiff’s motions, (Docs. 106,
108), should be and are hereby construed as objections to the
Magistrate Judge’s orders, (Text Order dated June 11, 2018
(“June 11th Order”), and Text Order dated July 13, 2018 (“July
13th Order”)), denying Plaintiff’s motions. After careful
review, this court finds that Plaintiff’s objections, (Docs.
106, 108), should be overruled and the Magistrate Judge’s orders
affirmed.
This case has an unusual and confusing history. As a
result, this court finds it necessary to review certain aspects
of the procedural history in order to explain why Plaintiff’s
objections should be overruled.
I.
RELEVANT PROCEDURAL HISTORY
Plaintiff, a prisoner of the State of North Carolina and
proceeding pro se, filed his original Complaint on October 20,
2014. (Doc. 2.) After a number of motions and proceedings,
Plaintiff filed a Second Amended Complaint on January 9, 2017,
(Second Amended Complaint (“Second Am. Compl.”) (Doc. 62)),
which is the currently operative pleading. The Second Amended
Complaint names as Defendants the City of Durham; David Todd
Rose, Durham Assistant Chief of Police; Dorothea Alene
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Rosencrans, Sergeant of Criminal Investigations for the City of
Mebane; Jose Luis Lopez, Sr., former Durham Chief of Police; and
John Does 1-6. (Second Am. Compl. (Doc. 62) ¶¶ 3-12.) Defendants
Lopez and Rose are represented by the same counsel and filed
separate Answers to the Second Amended Complaint. (Docs. 67,
73.) Defendant Rosencrans is represented by different counsel
and filed her own Answer to the Second Amended Complaint. (Doc.
71.) Defendant City of Durham inexplicably did not file an
Answer to the Second Amended Complaint until October 19, 2017,
(Doc. 76), more than sixty days after the Second Amended
Complaint was allowed and three days after Plaintiff filed a
motion for entry of default against Defendant City of Durham.
(See Docs. 75, 76.)
In addition to an Answer, Defendant Rosencrans also filed a
motion to dismiss the Second Amended Complaint pursuant to Fed.
R. Civ. P. 12(b)(6). (Doc. 77.) Plaintiff filed a response,
(Doc. 81), and Defendant Rosencrans filed a reply, (Doc. 87).
The parties completed briefing on March 16, 2018. (See Doc. 87.)
The Magistrate Judge entered a discovery order on
August 25, 2017, placing the case on the standard discovery
track and scheduling completion of discovery for February 26,
2018. (Doc. 74.) That same order required that any motion for
summary judgment be filed on or before March 28, 2018. (Id.)
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On March 2, 2018, Plaintiff filed a motion for extension of
time to complete discovery, (Doc. 83)1, and a motion to compel
discovery from Defendant City of Durham. (Plaintiff’s Motion to
Compel (“Pl.’s Mot. to Compel”) (Doc. 85)). Both motions are
dated February 25, 2018. (See Docs. 83, 85.) Bearing in mind the
Magistrate Judge established a discovery period of August 25,
2017 through February 26, 2018, it appears from Plaintiff’s
statement of facts that Plaintiff did not serve discovery on
Defendant City of Durham until November 12, 2017, almost three
months after discovery began, and thereafter did not take any
steps to compel responses from Defendant City of Durham until
three months later and one day before the discovery period was
scheduled to end. (See Doc. 83.) Plaintiff’s motions allege no
irregularities in discovery as to Defendants Lopez, Rose, or
Rosencrans.
In its June 11th Order, the Magistrate Judge denied
Plaintiff’s motion to compel discovery and motion for extension
Plaintiff argues, under the prisoner mailbox rule, that
his motion to compel and motion to extend the discovery deadline
were filed on February 25, 2018, a day before the discovery
period was scheduled to end. The Magistrate Judge found the
motions were not timely filed, and it is certainly questionable
whether filing those motions the day before a six-month
discovery period ends reflects a timely filing. Nevertheless,
because of the other grounds for this order explained herein,
this court does not address the timeliness of Plaintiff’s
filings.
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of time to complete discovery. (June 11th Order.) The Magistrate
Judge explained that “Plaintiff failed to set forth good cause
for extending discovery. See Local Rule 26.1(d). In addition,
Plaintiff’s Motion was not timely filed.” (June 11th Order.) The
Magistrate Judge also denied Plaintiff’s motion to compel as
moot, explaining that “Defendant City of Durham provided
Plaintiff with responses to all five of Plaintiff’s discovery
requests, objecting to two requests. . . . The Court agrees with
Defendant City of Durham that said discovery requests are
overbroad and unduly burdensome.” (Id.)
Plaintiff objected to the June 11th Order, (Doc. 102), and
the Magistrate Judge construed the objection as a motion for
reconsideration, which in turn was denied. (July 13th Order.)
Plaintiff thereafter filed additional pleadings requesting
review of the Magistrate Judge’s orders. (Docs. 106, 108.)
II.
ANALYSIS
A.
Plaintiff’s Objections to the Magistrate Judge’s
Orders
Plaintiff filed objections to the orders of the Magistrate
Judge denying Plaintiff’s motion to compel and motion for
extension of the discovery period. Plaintiff’s first objection,
(Plaintiff’s First Objection (“Pl.’s First Obj.”) (Doc. 102)),
to the Magistrate Judge’s June 11th Order was apparently mailed
on June 25, 2018, from Mountain View Correctional Institution.
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(Pl.’s First Obj., Ex. 1 (Doc. 102-1).) This court will give
Plaintiff, as a pro se prisoner litigant, the benefit of the
doubt and find that Plaintiff’s objection was filed within 14
days, pursuant to the prisoner mailing rule, as required by Fed.
R. Civ. P. 72(a). While Plaintiff cited Fed. R. Civ. P. 72(a) in
his objection, (Pl.’s First Obj. (Doc. 102) at 1), Plaintiff
also requested that the court reconsider and grant Plaintiff’s
motions. (Id.) The Magistrate Judge reasonably construed that
pleading as a motion for reconsideration and denied the motion.
(July 13th Order.) Plaintiff thereafter filed a letter, which
this court construes as an objection to the Magistrate Judge’s
ruling, requesting that the district court consider Plaintiff’s
objection to the ruling. (Doc. 106.) This court will find the
letter timely filed. In that letter, Plaintiff reiterated his
desire for review by the district court. (Id.)
The Magistrate Judge’s orders denying Plaintiff’s motions
to compel and extend discovery are not dispositive of
Plaintiff’s claims. Courts have consistently found discovery
motions to be nondispositive within the meaning of Fed. R. Civ.
P. 72(a). See Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d
522, 525 (2d Cir. 1990) (“Matters concerning discovery generally
are considered nondispositive of the litigation.”) (citations
and internal quotation marks omitted), cert. denied, 498 U.S.
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846, (1990); see also Merritt v. Int'l Bhd. of Boilermakers, 649
F.2d 1013, 1018 (5th Cir. 1981) (“[D]iscovery issues are by
definition pretrial matters.”); Fed. Election Comm’n v.
Christian Coal., 178 F.R.D. 456, 459 (E.D. Va. 1998). The review
of a magistrate judge’s order regarding a nondispositive matter
is governed by the “clearly erroneous” or “contrary to law”
standard of review. Fed. R. Civ. P. 72(a); 28 U.S.C.
§ 636(b)(1)(A). Regardless, even under a de novo review
standard, this court finds the Magistrate Judge’s orders proper.
With respect to the motion to compel, (Doc. 85), Plaintiff
does not appear to dispute the fact that Defendant City of
Durham responded to the questions set forth. (See Plaintiff’s
Reply regarding Motion to Compel (“Pl.’s Reply”) (Doc. 97) at
2.) Once Defendant City of Durham responded, Plaintiff’s only
remaining basis upon which to compel responses appears to relate
to Defendant City of Durham’s objection and continuing refusal
to respond to two of Plaintiff’s requests. (See id. at 2-3.) As
to these two requests, Plaintiff describes Defendant City of
Durham’s objections as based upon grounds that the information
was confidential and the interrogatories were overly broad and
unduly burdensome. (See id. at 3.) While this court does not
generally approve of canned objections of this type, this court
agrees with the Magistrate Judge that these two “discovery
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requests are overbroad and unduly burdensome.” (June 11th
Order.)
The two discovery requests are fully set out by Plaintiff
and will not be repeated here. (See Pl.’s Reply (Doc. 97) at 2.)
First, the requests are far too broad in terms of the relevant
time period, with the only limitation being “on or before
October 21st, 2011.” (Id.) Second, the requests are far too
broad in scope; the requests include “any and all complaints”
regarding “any Selective Enforcement Team member.” (Id.)
Plaintiff’s complaint is limited to six members of the Selective
Enforcement Team identified in the Second Amended Complaint as
John Does 1-6. (Second Am. Compl. (Doc. 62) ¶¶ 6-11.) The
allegations in the Second Amended Complaint are insufficient to
permit Plaintiff to inquire as to “all complaints” as to “any
Selective Enforcement Team member” prior to October 21, 2011.
This court agrees with the Magistrate Judge that Plaintiff’s
motion to compel should be denied because the “discovery
requests are overbroad and unduly burdensome.” (June 11th
Order.)
The Magistrate Judge also denied Plaintiff’s motion to
compel as moot because “Defendant City of Durham provided
Plaintiff with responses to all five of Plaintiff’s discovery
requests . . . .” (Id.) This court agrees that Plaintiff’s
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motion to compel is moot, but not solely because Defendant City
of Durham provided responses. This court finds Defendant City of
Durham’s delay completely unacceptable, at least based on the
allegations contained in the record before this court. Defendant
City of Durham’s extreme delay in responding to discovery
requests leaves open the question of whether expenses should be
awarded to Plaintiff pursuant to Fed. R. Civ. P. 37.
Plaintiff alleges that he first served Defendant City of
Durham with discovery requests in November 2017, after which no
response was filed by the City. (Pl.’s Mot. to Compel (Doc. 85)
at 1.) Plaintiff further alleges in his brief that he sent the
requests to Defendant City of Durham again on January 8, 2018,
and again no response was filed. (See Doc. 86.) Defendant City
of Durham does not dispute these facts, and appears to
acknowledge that complete responses were first filed on
March 16, 2018. (Defendant City of Durham’s Response to Motion
to Compel Discovery (Doc. 89) at 1.) Thus, the record discloses
that Defendant City of Durham ignored Plaintiff’s requests for
four months, did not file responses until approximately three
weeks after discovery closed, and filed responses only after
Plaintiff filed a motion to compel.
This type of conduct by Defendant City of Durham falls far
outside the rules governing discovery. Fed. R. Civ. P. 33(b)(2)
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requires answers to interrogatories within thirty days of
service; similarly, Fed. R. Civ. P. 34(b)(2)(A) requires
responses to requests for production of documents within thirty
days of service. When, as occurred in this case, responses are
disclosed only after a motion to compel is filed, Fed. R. Civ.
P. 37 requires that the court order “the party . . . whose
conduct necessitated the motion . . . to pay the movant’s
reasonable expenses incurred in making the motion . . . .” Fed.
R. Civ. P. 37(a)(5)(A).
Application of these rules to Defendant City of Durham’s
late disclosure suggests Plaintiff’s motion to compel is not
technically moot, as Plaintiff is entitled to recover expenses
incurred filing the motion to compel. Nevertheless, Plaintiff
has not requested expenses pursuant to Fed. R. Civ. P.
37(a)(5)(A). Furthermore, and as part of the relief granted by
the Magistrate Judge in the June 11th Order, the Magistrate
Judge granted Plaintiff’s motion for entry of default, (Doc.
75), as to Defendant City of Durham. (June 11th Order.)
Defendant City of Durham did not file an objection to
Plaintiff’s motion for entry of default, nor has Defendant City
of Durham filed an objection to the Magistrate Judge’s order
entering default. Under these circumstances, this court finds
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that the Magistrate Judge’s order denying Plaintiff’s motion to
compel as moot is not clearly erroneous or contrary to law.
This court therefore affirms the Magistrate Judge’s order
denying Plaintiff’s motion to compel.
Plaintiff’s motion for extension of time to complete
discovery, (Doc. 83), is premised upon Defendant City of
Durham’s failure to respond to discovery requests. (See
generally Docs. 83, 84.) In light of Defendant City of Durham’s
delivery of responses to Plaintiff and the denial of the motion
to compel, this court agrees with the Magistrate Judge that
Plaintiff has “failed to set forth good cause for extending
discovery.” (June 11th Order.)
Fed. R. Civ. P. 16(b)(4) provides that “[a] schedule may be
modified only for good cause and with the judge’s consent.”
“This would require the party seeking relief to show that the
deadlines cannot reasonably be met despite the diligence of the
party needing an extension.” 6A Charles Alan Wright, Arthur R.
Miller, and Mary Kay Kane, Federal Practice & Procedure § 1522.1
(2d ed. 1990). Although Plaintiff’s pleadings may show Defendant
City of Durham did not respond as required to discovery
requests, Plaintiff’s pleadings also disclose that Plaintiff
failed to act diligently. Plaintiff waited three months to begin
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discovery and then waited until the day before the discovery
period ended to file requests with the court.
Finally, Plaintiff’s pleadings fail to demonstrate what
further discovery may be necessary and thereby justify an
extension of the discovery period. (See Pl.’s Reply (Doc. 97));
see also Thacker v. Brady Servs., Inc., 367 F. Supp. 2d 882,
885–86 (M.D.N.C. 2005) (plaintiff must show good cause as to why
additional discovery would be productive). The Magistrate
Judge’s order is not clearly erroneous or contrary to law and
will be affirmed.
B.
The Recommendation dated July 13, 2018
Defendant Rosencrans filed a motion requesting dismissal of
Plaintiff’s claims pursuant to Fed. R. Civ. P. 12(b)(6), (Doc.
77), prior to completion of discovery and, following discovery,
moved for summary judgment, (Doc. 93). Plaintiff filed responses
to both motions, (Docs. 81, 96), and Defendant Rosencrans filed
replies, (Docs. 87, 101). The Magistrate Judge entered a
thorough Memorandum Opinion and Recommendation, (Doc. 104),
analyzing Plaintiff’s claims and Defendant’s motions and
recommending that the claims against Defendant Rosencrans be
dismissed. (See Recommendation (Doc. 104) at 25.)
With respect to the Magistrate Judge’s Recommendation, this
court is required to “make a de novo determination of those
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portions of the [Magistrate Judge’s] report or specified
proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1). This court “may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the [M]agistrate [J]udge . . . or recommit the matter to
the [M]agistrate [J]udge with instructions.” Id.
As described above, Plaintiff did not file specific written
objections to the Magistrate Judge’s Recommendation, but instead
persisted in his objections to the Magistrate Judge’s discovery
orders. Under these circumstances and in the absence of any
specific objection to the Recommendation, this court need not
conduct a de novo review. See Fed. R. Civ. P. 72(b)(3)(“The
district judge must determine de novo any part of the magistrate
judge’s disposition that has been properly objected to.”). This
court finds the Magistrate Judge’s Recommendation is neither
clearly erroneous nor contrary to law and should be affirmed.
Nevertheless, because of the unusual history of this case,
this court conducted a de novo review of the Magistrate Judge’s
Recommendation. This court finds the Recommendation should be
adopted. Plaintiff has failed to present facts as to Defendant
Rosencrans that would entitle Plaintiff to relief and the claims
as to Defendant Rosencrans should be dismissed.
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This action presents more than one claim for relief as to
multiple parties. Although all claims as to Defendant Rosencrans
will be dismissed under the terms of this order, this court will
withhold entry of final judgment until such time as Plaintiff’s
claims as to the remaining parties are adjudicated. The
remaining claims as to Defendants Lopez and Rose will be set for
trial. Because default has been entered as to Defendant City of
Durham, this court will direct the Clerk to set a hearing as to
the entry of a default judgment as to Defendant City of Durham
following trial of Defendants Lopez and Rose.
IT IS THEREFORE ORDERED that the Magistrate Judge’s orders
(Text Order dated June 11, 2018, and Text Order dated July 13,
2018) are hereby AFFIRMED and that Plaintiff’s motion to extend
time, (Doc. 83), and Plaintiff’s motion to compel discovery,
(Doc. 85), are DENIED.
IT IS FURTHER ORDERED that the Magistrate Judge’s
Recommendation, (Doc. 104), is ADOPTED. IT IS FURTHER ORDERED
that Defendant Rosencrans’ motion to dismiss for failure to
state a claim, (Doc. 77), and motion for summary judgment, (Doc.
93), are GRANTED and that Plaintiff’s claims as to Defendant
Rosencrans are DISMISSED WITH PREJUDICE.
The Clerk is hereby DIRECTED to set the remaining claims as
to Defendants JOSE LUIS LOPEZ, SR., and DAVID TODD ROSE for
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trial. The Clerk is further DIRECTED to set a date, following
the trial of Jose Luis Lopez, Sr., and David Todd Rose, for a
hearing as to the entry of a DEFAULT JUDGMENT as to Defendant
CITY OF DURHAM as a result of the Magistrate Judge’s ENTRY OF
DEFAULT by Text Order dated June 11, 2018.
This the 28th day of September, 2018.
____________________________________
United States District Judge
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