LINDSAY v. GLICK et al
Filing
104
MEMORANDUM OPINION AND ORDER. Signed by MAG/JUDGE JOE L. WEBSTER on 10/25/2016,Plaintiff's Motion to Enter Plaintiff's Rebuttal Evidence into Court Records (D.E. 58 ), Plaintiff's Motion for Partial Summary Judgment (D.E.[68 ]), Plaintiff's Motion for Reconsider Motion to Amend Complaint (D.E. 72 ), Plaintiff's Motion for Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes to William Glick, III (D.E. 75 ), Plaintiff's Motion to Compel Discovery (D.E. 78 ), Plaintiff's Motion for Emergency no Contact Order by Defendants Locklear and Bond (D.E. 99 ), and Defendants' Motion to Deem Response Timely Filed (D.E. 103 ) are DENIED. Plaintiff's Motio n for an Order Extending Limitations of Length of Brief to Refile Partial Summary Judgments (D.E. 81 ) is DENIED. Plaintiff will be allowed to file a supplement to his current motion for partial summary judgment (D.E. 89 ), to make any other arguments, limited to 10 pages. Plaintiff will have 21 days to file this supplement and Defendant will have 21 days to file a response. Plaintiff's Motion for Subpoena (D.E. 48 )is GRANTED in part, and DENIED in part. Defendants shall pro duce documents specified in camera inspection to Plaintiff within 14 days of this order. Plaintiff's Motion for an Order Extending Limitations of Length of Brief in Opposition to Dispositive Motions (D.E. 94 ), and Plaintiff's Motion for Court to Intervene (D.E. 97 ) are DENIED as moot. Defendants respond to Plaintiff's Memorandum of Law in Support of Motion for a TRO and Preliminary injunction (D.E. 98 ). Defendants will have 14 days to respond of this order. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
THE,ODUS LINDSAYJR.,
Plaintiff,
v
WILLL{M GLICK, III, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
1:15CV596
MEMORANDUM OPINION AND ORDER
OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court upon several motions: Plaintiffs Motion for Subpoena
pocket Entty
48), Plaintiffls motion entitled "Motion to Enter Plaintiffs Rebuttal Evidence
into Court Records" (Docket Enuy 58), PlaintifFs motion for paraal summaly judgement
(Docket Entry 68), Plaintiffs motion entitled "Reconsider Motion to Amend Complaint"
(Docket Entry 72), PlainttfPs motion entitled "Production of Documenrs and Things and
Etttty Upon Land for Inspection and Other Purposes to William Glick,
III"
(Docket Entry
75), Plaintiffs Motion to Compel Discovery (Docket Entry 78), Plaintiffs motion entitled
"Motion for an Order Extending Limitations of Length of Brief to Refìle Partal Summary
Judgments" (Docket E.ttty 81), Plaintiffls motion entitled "Motion for an Order Extending
Limitations of Length of Brief in Opposition to Dispositive Motions" pocket F;ntry
94),
Plaintiffs motion entitled "Plaintiff Motion for Court to Intervene" pocket Entry
97),
Plaintiffs motion entitled "Memorandum of Law in Support of Motion for a TRO and
Preliminary injunction" (Docket Er,tty 98), Plaintiffs motion entitled "Plaintiffis Motion for
Emergency no Contact Order by Defendants Locklear and Bond" (Docket Entry 99), and
1
Defendants'motion to deem response timely filed Q)ocket Entry 103). For the following
reasons, the Court will grant krpart and deny in part Plaintiffls Motion for Subpoena (Docket
Etttty 48). Defendants shall produce to Plaintiff the specifìc documents hereinafter specified
by the Coutt, which wete among the documents reviewed for in
days of this
order. The Court denies
as
camera
inspection, within 14
moot Plaintiffs motion entitled "Motion for an Order
Extending Limitations of Length of Brief in Opposition to Dispositive Motions" (Docket
Etttty 94), and Plaintiffs motion entitled "Plaintiff Motion for Court to Intervene." (Docket
Entry 97.) The Court further orders Defendants to respond to Plaintiffs motion entitled
"Memorandum of Law in Support of Motion for aTRO and Preliminary injunction" (Docket
Etttty 98) within
1,4 days
of this order. The Courtwill deny Plaintiffs motion entitled "Morion
for an Order Extending Limitations of Length of Brief to Refìle ParialsummaryJudgments"
pocket Entry 81). However, Plaintiff will be allowed to fìle a supplement to his current
motion for pattal summaly judgment pocket Entry 89), to make any other arguments,
limited to 10 pages. Plaintiff will have 21 days to file this supplemenr and Defendants will
have 21 days to fìle a response. The Court
will deny Plaintiff remaining morions. Q)ocket
Entries 58, 7 2, 7 5, 7 8, 99, 103).
I.
Bacþround
On July 22, 2015, Plaintiff, a pro se prisonet, fìled a complaint asserting that
Defendants were deliberately indifferent to Plaintiffs medical needs by denying Plaintiff access
to mental health treatment and protective custody.
(See
generalþ Compl.,
Docket Entry 2)
Plaintiff atdved at the Albematle Conectional Institution in June 201,4. (Id. at 6.) In August
201.4,
Plaintiff alleges that he requested to participate in a mental health psychological
2
rehabilitative treatment program for his Post Traumatic Stess Disorder ("PTSD") resulting
from his experience in the military. Qd.) Plaintiff alleges that he was denied
program and was assigned to the "Road Squad" for
a
access
to the
work assignment. Qd.) Plaintiff
states
that on sevetal occasions he requested to be temoved from the Road Squad assignment and
to be admitted to the mental health psychological rehabilitative treatment program. (Id. at 6-
9.) On October
21,,201,4,
Plaintiff states that he was assaulted on the Road Squad bus (Id. at
6.) Plaintiff alleges thataprison staff member failed to do anything about the altercation. (Id.)
Subsequently, Plaintiff was assaulted again on Road Squad duty on November 13,2014. Qd.
àt1,0.) As a result of this second altercation, Plaintiff was moved to restrictive housing.
Subsequently, Plaintiff filed several amended complaints and supplements.
Qd.)
pocket Entries
25,30,32,33).
In his ftst
amended complaint, Plaintiff asserts claims against
two additional
defendants, Monica Bond, Chief Disciplinary Officer, and Victor Locklear, a Disciplinary
Hearing Officer. @ocket Ent y 25.) Plaintiff asserts that both violated his Due Process rþhts.
Subsequendy, Plaintiff filed a supplementandanamended complaint alleging that Defendants'
violated the ¡\mericans with Disabilities
Act. (Am. Compl. at2, Docket Entry 32.)
Plain:j;ff
also alleges that Mr. Spruill, a unit m^na,ge\ "provided assistance on Jantary 21, 2015 at
fPlaintiffs disciplinary rehearing]." (Id.at 5) Plaintiff contends that Mr. Spruill told Plaintiff
that his disciplinary hearing was "jacked-,rp." Qd. at 5-6.)
a
.)
II.
Discussion
A. Plaintiffs Motion Entitled "Ordet for Ptoduction of Documents
and Things
and Entry Upon Land for Inspection and Other Purposes to \William Glick,
III"
Plaintiff moves the Court to "Order Production of Documents and Things and Entry
Upon Land for Inspection, taken Photogtaphs and Othet Purposes" pursuant to Fedetal Rule
of Civil Procedure 34. (Docket Entry 75). ,{.ccording to Rule 34, a party may serve on
arür
otherþarfl a "request within the scope of Rule 26þ)t . . . to produce and permit the requesting
pafty ot its representative to inspect, cop!, test, or sample . . . . designated tangible things"
that ate
"in the responding patty's possession,
custody,
or control."
Fed. R. Civ.
P.
3a(a)(t)(,{)-@) (emphasis added). Furthermote, Rule 34"permit[s] entry onto designated land
or other property possessed or controlled by the responding party, so that the requesting party
may inspect, measure, survey, photograph, test, or sample the property
object or operation on
it."
or
any designated
Fed. R. Civ. P. 3a@)@)(Z). Rule 45 allows for a subpoena to be
issued to nonparties to permit the inspection of land. Fed. R. Civ. P. (a)(C). Pursuant to Rule
26þ)Q), the Court must limit the extent or frequency of discovery upon the detetmination
that:
t Fed. R.
civ. P 26þ) states
Unless otherwise limited by court ordet, the scope of discovery is as follows: Parties
may obtain discovery regarding any nonprivileged matter that is relevant to any party's
claim or defense and proportional to the needs of the case, considering the importance
of the issues at stake in the action, the amount in conttoversy, the parties' relative
access to relevant information, the parties' resources, the importance of the discovery
in resolving the issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this scope of discovery need not be
admissible in evidence to be discoverable.
Fed. R. Civ. P
26þ).
4
(i) the discovery sought is unreasonably cumulative or duplicative, or can be
obtained from some other source that is more convenient, less burdensome, or
less expensive;
(ü) the patty seeking discovery has had ample opportunity
information by discovery in the action; or
to obtain the
(üi) the burden or expense of the proposed discovery outweighs its likely
benefit, considering the needs of the case, the amount in controversy, the
parties' resources, the importance of the issues at stake in the action, and the
importance of the discovery in resolving the issues.
MacDerrzid Printing So/¡., L.L.C. u. E.L Du Pont De Nemours dz Co., No. 1:10MC37,2012WL
7341.46, at x2 (À4.D.N.C.
Mar 6,2012) (citing Fed. R. Civ. P. 26þX2XC)).
Hete, Plaintiff requests that the Court order Defendants to allow Plaintifls designee
access to Albemade
Corectional Institution for the purpose of inspecting
a Road Squad bus
and to photograph the following items: "Inmates'cutting andf or stabbing devices including a
swing blade, bush axe, pitchfork, rake, and all other cutting or stabbing devices." (Docket
Et t y 7 5 at
4.) Additionally, Plaintiff desires
photographs of the Road Squad bus interior
including the inmates holding compartment, correctional officers' compartment, equipmeût
storage compartment, and
toilet. (1/.) These items are located on the property of the North
Carchna Department of Public Safety ("DPS") which is a non-party. Thus, Rule 45 applies to
Plaintrffs request.
The Court concludes that access to the facility is denied because the photographs
Plaintiff seeks are irtelevant. "Relevant information need not be admissible at the rial if the
discovery appears reasonably calculated to lead to the discovery of admissible evidence
u.
ll/olf
Shoe Co.,
No. 3:04 Cy
23231,
." Stoat
x2 (D.S.C. Mar 31,,2007).
JtrA,2007 WL 1034998, at
Relevant evidence is any evidence "having tendency to make the existence
5
of any fact that
is
of consequence to the determination of the action more probable or less probable than it
would be withorit the eviclence."
discretion
in
determination
I-nwcoantry Red Cros¡ 97
of
kl
(citing Fecl. R. Evid. 401). "The trial corlrt has broacl
televance
for
discovery purposes." Id. (citing ll/atson
u.
4 tr.2d 482 (4th Cir. 1,992). Plaintiff contends that his experience on
the Road Squad which included being in a "hostile environment" around inmates with Road
Squad equipment caused him "undue stress [and] triggered PTSD symptoms."
(See
Compl. at
6,1.4, Docket Entry 2). There is no dispute regarding whether the equipment was used while
Plaintrff was on Road Squad duty or whether an altetcaion happened on the Road Squad bus.
The issue is whether Defendants were deliberately indifferent to Plaintiffs medical needs by
placing him on Road Squad, not whethet he was actually on the Road Squad bus and
surrounded by the Road Squad equipment in the hands other inmates. Ptoduction of these
photographs will not make any fact needed for determination
of this action more or
less
probable. Thus, the information Plaintiff requests is not relevant.
Furthermore, Defendants contend that:
the items to which Plaintiff demands access may be in the care and control of
Defendant Glick as Superintendent of the pdson, but they are located on and
indeed are the property of a non-prry, [DPS], which has strict security
protocols and policies for obvious feasons.
(Docket Etrtty 82 at 4.) While individuals have been granted entry into ptisons by courts, the
undersigned must weigh Plaintifls request against the needs of the case and the DPS's burden
to adjust its
"stict
security protocols and policies" to comply with Plainuffs request. SeeFed.
R. Civ. P. 26þ)Q)(Ð; Docket Entry 82 at
4.
The Court concludes that the secutity risk in
allowing a designated person access to the correction al faclhty to take photos of the equipment
and Road Squad bus used to transfer inmates outweighs the minimal potential benefit to
6
Plaintiff.
See
Daw¡on u. Bath,
No. CÂ 4:13-2236-DCN-TER,201.4WL 3349835, at x3 (D.S.C.
July 9, 201,4) ("The burden to the security of SCDC institutions that would be caused by
ptoduction
of [the Use of
Force] policy outweighs Plaintiffs benefit
in receiving it.");
Manriquequ. Huchins, No. 1:09-CV-00456-OWW, 201,1, WL 32901,65, at*20 @,.D. Cal. July 27 ,
201,1) ('rWhile the Court recognizes that the blue prints could be relevant and potentially
admissible at ttial, the security risk that would be created by giving inmates blue prints to the
prison greatly outweighs any potential benefit that Plaintiff would receive by obtaining the
requested documents"); Siluerstein u. Fed. Bareaa of Prinu, No. CIV.A07CY02471PA.BKMT,
2009 \[1L 1451684, at x3 (D. Colo. May 20,2009) ("fìnd[ing] that the scant extra information
which could be extracted by a personal viewing of a specific cell by the fplalintifPs] experts is
far outweighed by the burden and expense on the parties and on the prison by allowing a mass
site
visit').
Thus, Plaintiffs motion entitled "Order Production of Documents and Things
and Entry Upon Land for Inspection, taken Photographs and Other Purposes" (Docket Entry
75) is denied.
B. Plaintiffs Motion Entitled "Motion to Enter Plaintiffs Rebuttal
Evidence into
the Court Records"
Plaintiff fìled a motion entitled "Motion to Enter Plaintiffs Rebuttal Evidence into the
Court Records" pocket Entry 58.) Plaintiff seeks leave to respond to Defendants' answer.
Specifically, Plaintiff contends that in Defendants' answer they assert that Plaintiff has not
exhausted his administtative remedies. Q)ocket Entry 58 at
2.)
Plaintiff desires to tebut
Defendants' contention by enteting tebuttal evidence ptoving that he has exhausted his
administrative remedies. (Id.
^t
3-4.)
7
,\ccording to Rule 7(a) only cettain pleadings are allowed. Fed. R. Civ. P.7(a). The
Rule expressly states that
"[i]f the court otders one, a reply to arrswer" is allowcd. Fcd. R. Civ.
Pro.7(a)(7). The Court has not asked Plaintiff to file a reply to Defendants' answer. Thus,
Plaintiffs motion entitled "Motion to Enter rebuttal Evidence into the Court Records"
pocket Entry 58) is denied.
C. Plaintiffs Motion to Compel
Plaintiff has also filed
a
motion to compel certain individuals to adequately respond to
discovery requests. (Docket E.ttty 78.) Plaintiff contends that Defendants failed to comply
with document request seeking photographs of the Road Squad bus and work equipment.
pocket Ettt"y
80 at 1, 1,1,-12.) As discussed eadier, the DPS's burden in maintaining the safety
of the facihty outweighs Plaintiffs minimal
photographs.
See Dawson, 201,4
WL
potential benefit from receiving
3349835, at *3; ManriqueT, 201,1
WL
these
3290165, at
*20;
Silverstein,2009 \[1L 1451684, atx3. Plaintiff also asserts that Defendant Brafford failed to
adequately respond to Plaintiffs requests
for admissions. (Id. at 2.) Plaintiff
asserrs that
Defendant Btafford's response to Plaintiffs interogatories stating that he "'d[id] not work for
NCDPS any longer' and that 'þe] d[id] not have independent recollection of any information
asked"' was inadequate.
(Id.)
Defendant Brafford stated under penalty of pe{ury that he
does not have access to the information requested and that he does not have any recollection
of the circumstances that Plaintiff asked him about. pocket E.ttry 80 at 15-16,21-23.) Thus,
the Cout denies Plaintiffs motion to compel. Garda a.
Almieda, No.
103CV06658O\)7WSMSPC, 2007 WL 1395338, at *1 (E.D. CaI. May 10,2007) ("Plaintiffs
motion to compel a response is denied. Absent evidence to the conftar!,which has not been
I
offered, the court and plaintiff must accept defendant's response that she does not have access
to the infotmation needed to respond to this interrogatory because
she is
no longet employed
by the California Department of Corections and Rehabilitation"); Carmichael u. Rz7ey, No. C06-
5542RJB/KLS, 2007 WL 3374942, at *6 (\1.D. \Wash. Nov. 6, 2007) (denying the plaintiffs
motion to compel the defendants to adequately ansv/er interogatories because "Defendant
Riley . . . stated under penalty of perjury that he does not have access to the information
requested").
D. Motion to Reconsider Âmended Complaint
Plaintiff has also fìled a motion entitled "Reconsider Motion to Amend Complaint"
(Docket Etttty 72). Prevíously, Plaintiff filed two motions, the fìrst entitled Motion to Amend
and Supplement Complaints (Docket Ent"y 32), which was filed on December 28, 2015, and
a
motion entitled "Motion to Arnend Complaints," filed onJanuary'19,201,6. pocket Entry
33). Ultimately, the ftst motion was construed
as a supplement
to Plaintiffs previously filed
,\mended Complaint. The second motion entided "Motion to r{mend Complaints," which
was deemed moot, included a new claim under the Amedcans
504 of the Rehabilitation
,\ct.
with Disabilities r{,ct and Section
(Docket Entry 33 at 6.) Plaintiff requests that his Americans
with Disabilities Act claim not be dismissed. Q)ocket Ent y 72 at 4-5.)
The Fourth Circuit has repeatedly held that "the ADA and Rehabilitation Act generally
are construed to impose the same requirements, and because the language
of the Acts
is
substantially the same . . . the same analysis [is applied] to both." Spenceru. Earley278tr. App'*
254, 261, (4th Cit. 2008) (internal citations and quotations omitted); Clinton
1,:1,0CY123,201,4WL 4274251,, at *2 (1\4.D.N.C. Aug. 28,2014). While
9
L.
a. Il/os, No.
the two statutes have minor differences, in genetal, a plaintiff seeking recovery
under eithet statute must allege that (1) he has a disability; (2) he is otherwise
qualified to receive the benefits of a public service, program, or activity; and (3)
he was excluded ftom participation in or denied the benefits of such service,
program, ot activity, or otherwise discriminated against, on the basis of h[is]
disability.
Id. (nternal citations and quotations omitted). The Court fìnds that Plaintiffs Americans with
Disabilities Act claim is frivolous. Plaintiff alleges that he has been denied medical treatment.
(See
generalþ Compl.,
Docket Ent"y 2.) However, there is no allegation that Plaintiff has been
denied access to a public service, program, or activity on the basis of his alleged disability
Harell
u. Bishop,
No. CIV.A. DKC-13-2722, 2014 WL 3055572, at x6
("Although the Foutth Circuit
cases
has
P.
Md. July 2, 2014)
not addressed this issue in a published opinion, unpublished
from this circuit and published and unpublished
cases
from other circuits indicate that
a
prisoner may not state a claim under the -A.DÂ for a lack of medical treatment."); Brown u.
I{/i/son,
No. 5:10-CV-181-C, 2012WL
671,9464, at x3 (}1.D. Tex.
Dec27,201,2) (finding that
the plaintiff failed to state a claim fot relief undet fthe Á,mericans with Disabilities Act or the
Rehabilitation Act] because he has not "alleged or shown that he was advetsely tteated solely
because
of his handicap"). Therefore, Plaintiffs motion entitled "Reconsider Motion to
Amend Complaint" is denied.
E. Plaintiffs Motion Entitled "Motion for Court to Intervene"
Plaintiff filed
a
motion entitled "Motion fot Court to Intervene." Q)ocket Entry 97.)
Plaintiff requests the Court to order the Bertie Correctional Institution to forward Plaintiffs
entire legal fìle to him and to "stay matters pending in this court until 6 Septembet 201.6, and
any othet relief deemed necessarry."
pocket E.try 97 at3.) Plaintiff
was involved
in another
altercation with an inmate on August 5,201,6. (Docket Entry 97 at1,.) This resulted in Plaintiff
10
being held in testrictive housing. (Id. at2.) Plainttff expected to be in restrictive housing until
September 6,201.6. (Id.)
It
appears that this motion is now moot because Plaintiff should
have been teleased from testrictive housing over a month ago. Thus, Plaintiffs motion is
denied as moot.
F'. Plaintiffs Motions to Extend Limitation of Page Length and Plaintiffs Partial
SummaryJudgment Brief
Plaintiff filed a motion for panalsummâ{y judgment on April 28,2016. @ocket Er,try
68.) This pattial
summary judgment motion was one
of three patttal
summaÐ/ judgment
motions fìled by Plaintiff in the span of one month. pocket Entdes 54,60,68.) Subsequently,
the Coutt encouraged Plaintiff to file one partial summaÐ/ judgment brief encompassing all
of
Plaintiffs arguments. pocket Etttry 76.) In response, Plaintiff filed a motion fot an extension
of the numbet of pages thatcan be filed for his summary judgment brief. (Docket Entry 81.)
Before the Coutt addressed Plaintiffs request for anextension of the numbet of pages that
can be filed for his partial summary judgment brief,
Plaintiff complied with the Court's request
by filing a single paraal summaly judgment motion which Plaintiff named "Plaintiffs Refiled
Motion forParttal SummaryJudgment
p.E. 54,60,68)."
(Docket Entry 89.) Because this
paria,I summaq/ judgment motion combines Plaintiffs pervious three summary judgment
motions (Docket Entries 54, 60,68), PlaintifPs April 28,201,6, summary judgment motion
pocket Entry 68) is denied.
Concerning Plaintiffs motion entitled "Motion for an Otder Extending Limitations
of
Length of Brief to Refile Partial Summary Judgments" (Docket E.rtty 81), the Court notes
that Plaintiff requests that the page limit for his summary judgment bdef (Docket Entry 89)
1,1
be extended to 75 pages. (Docket Entry 81 at 4.) Since Plaintiff has already fìled a new partial
summaly judgment motion the Court will deny Plaintiffs request. However, the Court will
allow Plaintiff
to file an additional 10 pages to
supplement his current pafital summary
judgment brief. Q)ocket Entry 89.)
Plaintif|s last motion requests that the page length for his response to Defendants'
dispositive motions be extended to 20 pages. @ocket Er,try 94 at
2.) The United
States
District Court for the Middle Disttict of Noth Carolina Local Rules stâte that "þ]riefs in
support of motions and responsive briefs are limited in length to 20 pages, and reply briefs are
limited to 10 pages." L.R. 7.3(d). Therefote, the Local Rules allow responses to dispositive
motions to be 20 pages long which the Court concludes is sufficient for Plaintiffs response
brief. Id. Thus, Plaintiffls motion entitled "Motion for an Order Extending Limitations of
Length of Bdef in Opposition to Dispositive Motions" (Docket Entry 94), is denied
as
mool
G. Plaintiffls Motion for Subpoena
Additionally, Plaintiff fìled a motion requesting that the Court order Defendants to
produce several documents.2 The Coutt ultimately detetmined that Plaintiffs discovery
request was overboard and unduly burdensome. (Docket Entry 83
2
at2.) However, the Court
Plaintiff requests that the court order Defendants to produce:
medical tecotds, prisons policies, logs, schedules, corespondence, memoranda,
emails, reports, summaties of meetings or conferences, summaries of hearing or
repotts of investigations ot negotiations, opinions or reports of consultants,
photographs, pamphlets, drafts, letters, any marginal comments appearing on any
document, and all other writings ot tangible things in the possession, custody or
control of John Herring, and North Carohna Department of Public Safety, Division
of Prisons, until date of trial to litigate Plaintiff['s] case.
(Docket E.ttty 48 at2.)
12
ordered defendants to produce for in îamera inspection prison policies related to inmates being
assigned to the Road Squad, the teatment of inmates with mental impaitments, the use
of
pepper spray on inmates, and assigning inmates to restrictive housing as a disciplinaÐ/ measure.
pocket Entry 83.) Plaintiff is prohibited from obtaining documents protected by
attorney-client privilege3
ot
the
considered work product.a Plaintiff is also prohibited from
obtaining documents that threaten the safety of the prison.s The Court has teviewed all
of
the documents submitted by Defendants. The Court finds that the following documents are
not ptivileged, nor do they pose a threat to the safety of the prison:
1,. Email chain from Cordelia McBride to Tanya Turner (8.S. 0588-89)
3 The attorney-client privilege
applies only if (1) the asserted holder of the privilege is or sought to become a client;
(2) the person to whom the communication was made (a) is a member of the bar of a
court, or his subordinate and þ) in connection with this communication is acting as a
lawyer; (3) the communication relates to a fact of which the attotney was infotmed (a)
by his client þ) without the presence of strangers (c) fot the purpose of securing
primarily either (i) an opinion on law or (ü) legal services or (Ð assistance in some
legal proceeding, and not (d) fot the purpose of committing a crime or tort; and (4)
the privilege has been (a) claimed and þ) not waived by the client.
Moore u. DAN Holdings,Inc.,No. 1:12CV503,201.3
a
!7L 1833557,at*3 (I\4.D.N.C. Apr.30,201,3)
"The work product doctrine applies to material 'prepared
because
of the prospect of litigation when
the prepater faces an actual claim or a potential claim following an actual event or series of events that
reasonably could result in litigation ."' M00re, 2013 WL 1,833557 , at x3 (citing Nørionøl Union þ-ire Ins.
Co. u. Marø1 Sheet Meral Co., lnc.,967 F.2d 980, 984 (4th Cir. 1992)) (emphasis in origrnal). "The
butden rests on the party tesisting discovery to demonstate the applicability of either the attorneyclient privilege or the work ptoduct docffine." Id. Q.ittng Solis u. f-ood Enp'rs l-abor Relalions A:s'n, 644
F.3d 221,, 232 (4th Ctt. 201,1).
No. 3: 11,-CV-21,94,2073WL 5202489, at+3 (IVI.D. Pa. Sept. 1,3,201,3) (declining
to authorize wholesale disclosure of ptison manuals because doing so "may gtavely impair institutional
security"); Ibaneqa. Mi//er, No. CIVS-O6-2668JAM EF'BP, 2009 'üøL 3481,679, at *3 (E,.D. Czl. Oct.22,
2009) (finding that a prison's operating ptocedures document "contains critical prison security
information that, if disclosed, could endanger prison staff and compromis e tacttcal responses to ptison
alarms").
5
Robinson u. ll/etryl,
1,3
2
Email chain from Donna Byrd and Cordelia McBride (8.S. 0577).
J
Email chain from Donna Barringet to Cotdelia McBtide @.S, 05ó5-66)
4.
Email chain from Cordelia McBride to Tanya Turner (8.S. 0581-82).
5.
Email chain from Ebony Ratliff to Cotdelia McBride @.S. 0673-75).
6.
Email chain from Cordelia McBride to Donna Baringer (8.S. 0644-47)
7.
Email chain from Cordelia McBride toJeanette Robinson (8.S. 0618-19).
8. Email chain from Ebony Ratliff to McBride Cordelia
9.
@.S. 0552-54).
Email chain ftom Michael Thompson to Cotdelia McBdde (8.S. 0532-33).
10. Email chain
ftom Cordelia McBride to William Glick (8.S. 0523-25)
11. Email chain
from Michael Thompson to Cordelia McBride (8.S. 0514-16).
12.Emall chain from William Glick to Lawrence Parsons (8.S. 0469).
13. Email chain
from Michael Thompson to Cordelia McBride (8.S. 0509-10)
1.4.F,mail chain ftom Bill Brandhorst to l7illiam Glick @.S. 0470-71)
15. Inmate Request/Information
Form (B.S 0660-62).
These documents shall be produced by Defendants within 14 days of this order.
H. Plaintiffs Motion fot Tempotary Restraining Ordet and Pteliminary
Injunction
Additionally, Plaintiff filed
a
motion entitled "MemoÍandum of Law in Support
of Motion for a TRO and Pteliminary injunction." pocket Entry 98.) Plaintiff
contends that he is presently being denied apptoptiate medical care. (Id.) Plaintiff
seeks a temporaq/ restraining otder and a preliminary injunction
to ensure that
he
teceives proper medical care. (Docket E.rtry 98 at 1,.) The Coutt orders Defendants
1,4
to tespond to PlaintifPs motion within
I.
1,4 days.
Plaintiffs Motion entitled "Plaintiffls Motion fot Emergency no Contact
Ordet by Defendants Lockleat and Bond"
'{,dditionally,
Plaintiff fìled a motion entitled "PlaintifPs Motion for Emergency no
Contact Order by Defendants Locklear and Bond" (Docket Entty 99). Plaintiff was allegedly
involved in another altercation with an inmate. pocket Entry 100 at 6.) As a result Plaintiff
was subject to a disciplinary hearing. Qd.) Mr. Locklear is the disciplinary hearing officer and
Ms. Bond reviews disciplinary hearing appeals. (Docket Entry 101 at
Plaintiff "objects to defendant Locklea4 and Bond, hearing
disciplinary charge þecause] þ]oth defendants [are] named
lawsuit." (Docket Entry
ot
2.) In this motion
teviewing his cuffent
in plaintifff's]
pending civil
100).
The Court finds that Plaintiff has failed to come forward with any evidence indicating
that Mr. Locklear ot Ms. Bond violated Plaintiffs constitutional
rþhts. Plaintiffs
assertion
that Mr. Locklear and Ms. Bond will adjudicate and review his disciplinary hearing
is
insufficient to show bias. Defendants "disposition of the charges against Plaintiff does not in
and of itself constitute personal participation in an alleged violation of an inmate's right to due
process. Otherwise, every disciplinary hearing officer and reviewing authority would be
potential defendant when an inmate was convicted
L.eatherøood,
No. CIV-10-769-M, 2011
andreconmendation adopted,No.
ffl.
of a misconduct charge."
Barnelt
a
u.
4588911, at*'1.4 (\X/.D. Okla. Aug. 10, 2011), report
CIV-10-769-M,2011WL4578450 CX/.D. Okla. Sept.30, 201,1),
(tÍ[d,557 F. App'x 739 (1,0th Cu. 201,4); Brown u. kior,196 F.
App'" 681,684 (10th Cir.
2006)
("standing alone, the allegation that the DHO was biased solely as a result of his being named
15
a defendant
in a civil suit by the plaintiff does not rise to a due process violation."). "Ftom
a
practical standpoint, requiring each staff member who is the subject of a separate lawsuit to
disqualify himself from sitting in judgment
capacity
of the prison staff."
Burnett,201,1,
of that inmate would heavily tax the working
WL
4588911,,
atx1,4. Plaintiff insist that Mr.
Locklear rctahated against Plaintiff because his "case fwas sent] back for
reinvestigation." (Docket Entry 101 at
5.)
a
parttal
Plaintiffls assertion is almost speculative. A
reinvestigation of PlaintifPs case is not evidence of retaliation. To the conftat!, this indicates
that the prison staff is attempting to reach the correct outcome. Thus, Plaintiffs motion
entitled "Plaintiffls Motion for Emergency no Contact Order by Defendants Locklear and
Bond" (Docket Entty 99) is denied.
J.
Motion to Deem Response Timely Filed
Lasdy, Defendants fìled a motion to deem their response to a motion filed by Plaintiff
(Docket Entty 99) timely. Q)ocket Entry 103:) As explained above, in Plaintiffs motion
entitled "Plaintiffls Motion for Emergency no Contact Ordet by Defendants Lockl ear and
Bond" (Docket E.ttry 99), Plaintiff "objects to defendant Locklear, and Bond, hearing or
reviewing his curent disciplinary charge þecause] þ]oth defendants [are] named in plaintiff['s]
pending civil lawsuit." (Docket Ent"y 100). As explained above the Cout denies PlaintifPs
motion because
it is meritless. Thus, there is no need to consider Defendants'
untimely
response. Defendants' motion is denied.
III.
Conclusion
For the reasons stated herein,
IT IS THEREFORE ORDERED that Plaintiffs
motion entitled "Motion to Enter Plaintiffls Rebuttal Evidence into Court Recotds" (Docket
t6
Entty 58), Plaintifls motion for partial summary judgement Q)ocket E.rtty 68), Plaintiffs
motion entitled "Reconsider Motion to ,\mend Complaint" (Docket E.ttty 72), Plaintiffs
motion entitled "Production of Documents and Things and Entry Upon Land for Inspection
and Other Purposes to William Glick,
III" pocket Entry 75), PlaintifPs
Motion to Compel
Discovery Q)ocket Entry 78), Plaintiffs motion entitled "Plaintiffs Motion for Emetgency
no Contact Order by Defendants Locklear and Bond" (Docket E.rt"y 99), and Defendants'
motion to deem response timely filed Q)ocket Entry
IT IS FURTHER ORDERED
1,03) arc
DENIED.
that Plaintiffls motion entitled "Motion for an Order
Extending Limitations of Length of Brief to Refile Partial Summary Judgments" (Docket
Ent
y 81) is
DENIED.
However, Plaintiff will be allowed to fìle a supplement, to his current
motion for parttal summary judgment (Dock Entry 89), to make any othet arguments, limited
to 10 pages. Plaintiff will have 21, days to file this supplement and Defendant will have 21'
days
to file a response.
IT IS FURTHER ORDERED
48) is
that Plaintiffs Motion for Subpoena (Docket Entry
GRANTED in part, and DENIED in patt. Defendants shall ptoduce the documents
specified above which were among the documents reviewed for in camerainspection to Plaintiff
within 14
days
of this otder.
IT IS FURTHER ORDERED
that Plaintiffs motion entitled "Motion for an Order
Extending Limitations of Length of Brief in Opposition to Dispositive Motions" (Docket
E.rtty 94),
Entry 97)
and
are
Plaintiffs motion entitled "Plaintiff Motion for Court to Intervene" (Docket
DENIED
as
moot.
IT IS FURTHER ORDERED
that Defendants respond to Plaintiffs motion
17
entitled "Memorandum of Law in Suppott of Motion for
a
TRO and Preliminary injunction."
pocket Etrtty 98.) Defendants will have 14 days to respond of this order
L
Srmr trf4gistnt*Judp
October 25,201,6
Durham, North Carcltna
18
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