TURNER v. AYISI et al

Filing 33

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 11/17/2022; that the First Motion (Docket Entry 18 ), the Second Motion (Docket Entry 24 ), and the Third Motion (Docket Entry 29 ) be denied. (Carter, Alexus)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ROBERT TURNER,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
CAPTAIN JOHNSON and
OFFICER M. AYISI,
Defendants.

1:22CV92

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This

case

comes

before

the

undersigned

United

States

Magistrate Judge for a recommendation on Plaintiff’s Motion for
Default

Judgment

(Docket

Entry

18)

(the

“First

Motion”),

Plaintiff’s Motion for Default Judgment (Docket Entry 24) (the
“Second Motion”), and Plaintiff’s Motion for Default Judgment
(Docket Entry 29) (the “Third Motion”).

For the reasons that

follow, the Court should deny all three Motions.
I. BACKGROUND
Plaintiff, at all relevant times a detainee at the Guilford
County Jail in Greensboro, North Carolina, brought this action
against two officers at the jail, alleging violations of his First,
Fifth, Eighth, and Fourteenth Amendment rights.
2 at 2-3.)

(See Docket Entry

According to the Complaint, Defendant Ayisi “peppered

[sic] sprayed” Plaintiff repeatedly “during the lockdown of [his]
recreation hour,” causing Plaintiff to “hit [his] face on [the]

Case 1:22-cv-00092-CCE-LPA Document 33 Filed 11/17/22 Page 1 of 13

edge” of his bed.

(Id. at 4.)

The Complaint contends that, “[a]s

a result of the incident[, Plaintiff’s] nose is broken and the
vision in [his] left eye is obscured, blurry [and functioning at]
maybe 10% percent [sic].”

(Id. at 5.)

The Complaint further

alleges that Defendant Johnson did “not allow[ Plaintiff] due
process by denying [him] grievances” and “answering [Plaintiff’s]
sick calls [but] denying [him] medical for [his] treatment.”

(Id.

at 4.)
On April 19, 2022, the Court (per United States District Judge
Catherine

C.

Eagles)

ordered

that

“[P]laintiff’s

individual

capacity claim against Defendant Ayisi may proceed but his official
capacity claim against Defendant Ayisi and his claims against
Defendant Johnson are dismissed without prejudice.”
8 at 2.)

(Docket Entry

On May 4, 2022, the Court (per the undersigned Magistrate

Judge) adopted a Scheduling Order for this case including “an
eight-month . . . discovery period.”
2022.)

(Text Order dated May 4,

Plaintiff’s First, Second, and Third Motions, discussed

below, all relate to perceived discovery deficiencies on the part
of Defendant Ayisi.

(See generally Docket Entry 18 at 1-3; Docket

Entry 24 at 1; Docket Entry 29 at 1-2.)

2

Case 1:22-cv-00092-CCE-LPA Document 33 Filed 11/17/22 Page 2 of 13

II. DISCUSSION
A. The First Motion
The First Motion contends that “Defendant Ayisi has failed to
comply with the rules of [d]iscovery outlined in Rule[s] 26, 33,
and 34 of the Federal Rules of Civil [P]rocedure.”
18 at 1.)

(Docket Entry

Specifically, the First Motion asserts that Plaintiff,

on February 23, 2022, “contacted [the] attorney for [D]efendant
. . . requesting the production of very specific documents . . .
[including] a copy of all [Plaintiff’s] inmate request[s] and
responses on the kiosk, and a copy of the DVD from the incident
. . . .”

(Id.)

Defendant’s counsel allegedly “did not comply”

(id.) with Plaintiff’s request, so Plaintiff sent an additional
letter on March 29, 2022 requesting “all [his] kiosk request[s]
from medical and the responses . . . [as well as] an address for
[Defendant] Ayisi” (id. at 1-2).
Plaintiff then sent a third letter, on July 23, 2022, to
Defendant’s counsel requesting, in an attempt “to simplify [his
prior requests,] . . . all the medical and all tabs in general [on
the kiosk] from [January 23, 2021] to present.”
First

Motion

asserts

that

Defendant’s

(Id. at 2.)

counsel

responded

The
to

Plaintiff’s third letter two days later, stating that “[Defendant’s
counsel] provided [Plaintiff] with 33 kiosk requests and 9 hand
written Inmate Request Forms . . . in accordance with [Plaintiff’s]
March 29, 2022 letter.”

(Id.)

But, according to Plaintiff, “what

3

Case 1:22-cv-00092-CCE-LPA Document 33 Filed 11/17/22 Page 3 of 13

[Plaintiff] asked for is not what was sent, [and Defendant’s
counsel] sent [Plaintiff] things [he] didn’t ask for.”

(Id.)

As a result, the First Motion “seek[s] default judgement
[sic]” (id. at 1) because Defendant purportedly failed to “provide
to [Plaintiff] the information listed out in [Federal] Rule [of
Civil Procedure] 26(a)(1)(A)(I)” (id. at 3).

The First Motion

argues further that Defendant’s failure to adequately respond to
Plaintiff’s requests warrants default judgment because “F[ederal]
R[ule of] C[ivil] P[rocedure] 37(c)(1) provides that if a party
fails to provide information . . . the court may . . . impose
appropriate sanctions including . . . a default judgment against
the disobedient party.”

(Id. (internal quotation marks omitted).)

Defendant Ayisi, in response, first contends that, as “of
Plaintiff’s February 23, 2022, request letter, the Court had not
yet entered a Discovery Scheduling Order.” (Docket Entry 22 at 2.)
In that regard, Defendant Ayisi’s First Response points to this
Court’s Local Rule 16.1, which states that “cases [with ]pro se
parties[] shall be governed by a scheduling order entered by the
Court after an initial pretrial conference . . . [and that]
discovery shall not commence until entry of the scheduling order.”
M.D.N.C. LR 16.1(a).

The First Response states further that,

notwithstanding that “Defendant was under no obligation to provide
the documents requested in Plaintiff’s [February 23, 2022] letter”
(Docket Entry 22 at 2), Defendant’s counsel, “as a courtesy,

4

Case 1:22-cv-00092-CCE-LPA Document 33 Filed 11/17/22 Page 4 of 13

informally responded to Plaintiff’s request, but without waiving
any of the requirements imposed by the Federal Rules or Local
Rules” (id.).
Defendant

the

same

argument with regard to Plaintiff’s March 29, 2022 letter.

(See

id. at 3-4.)
documents”

Ayisi’s

First

Response

makes

largely

Again, “[a]lthough under no obligation to produce

(id.

at

4),

Defendant’s

counsel

provided

“kiosk

requests,” “inmate request forms,” and “directed the Detention
Staff to make the Jail video available for Plaintiff’s viewing”
(id.).

And, while Defendant’s counsel did not “provide Defendant

Ayisi’s address because it was protected from disclosure by the
North Carolina Personnel Privacy Act[,] . . . counsel offered
. . . to accept service of the Summons and Complaint on Defendant[]
[Ayisi’s] behalf.”
As

for

(Id.)

Plaintiff’s

third

letter,

dated

July

23,

2022,

Defendant Ayisi’s First Response recounts that, because, “on May 4,
2022, the Court had officially opened discovery . . . Defendant’s
counsel requested that Plaintiff submit his document and other
requests by usiing [sic] the discovery procedures described in
Rules 26, 33, and 34 of the Federal Rules of Civil Procedure.”
(Id. at 5.)

According to the First Response, Plaintiff thereafter

propounded discovery properly on July 28, 2022.

(See id.)

On

August 25, 2022, Defendant Ayisi requested additional time to
respond to Plaintiff’s discovery, which the Court granted “via a

5

Case 1:22-cv-00092-CCE-LPA Document 33 Filed 11/17/22 Page 5 of 13

Text Order” (id.; see also Text Order dated Aug. 26, 2022), thereby
giving Defendant Ayisi until September 26, 2022, to respond to
Plaintiff’s discovery.

As a result, Defendant Ayisi’s First

Response contends that the First Motion “is premature.”

(Id. at

6.)
Plaintiff filed a Reply Brief on October 3, 2022, in which he
raised two new arguments.

First, that Reply Brief asserts that

“defendant was granted an extension . . . until September 26[,]
2022 which defandant [sic] failed to meet . . . .”
26 at 1.)

(Docket Entry

Said Reply Brief also alleges that Defendant Ayisi did

not fully comply with Plaintiff’s discovery requests because “it
would be to [sic] costly to provide [P]laintiff’s medical record.”
(Id. at 2.)

On those grounds, Plaintiff renewed his request for a

default judgment against Defendant Ayisi.

(See generally id.)

The First Motion lacks merit largely for the reasons Defendant
Ayisi identified in his First Response.

Plaintiff’s first two

letters

the

to

Defendant’s

counsel

predated

conference and entry of a scheduling order.
at 2, Docket Entry 22 at 1-4.)

initial

pretrial

(See Docket Entry 18

As this Court’s Local Rules make

clear, “discovery [in cases with pro se parties] shall not commence
until entry of the scheduling order.”

M.D.N.C. LR 16.1(a).

As a

result, Defendant Ayisi had no duty to respond to Plaintiff’s first
two letters, although Defendant’s counsel elected to do so “as a
courtesy.”

(Docket Entry 22 at 2.)

6

Case 1:22-cv-00092-CCE-LPA Document 33 Filed 11/17/22 Page 6 of 13

In addition, Plaintiff cannot rely on Federal Rule of Civil
Procedure 26(a)(1)(A)(i) as a basis for relief.

That rule, which

mandates certain initial disclosures, expressly does not apply to
pro se inmate lawsuits.

See Fed. R. Civ. P. 26(a)(1)(B)(iv)(“The

following proceedings are exempt from initial disclosure: . . .
(iv) an action brought without an attorney by a person in the
custody of the United States, a state, or a state subdivision.”).
For the same reason, Plaintiff cannot rely on Federal Rule of Civil
Procedure 37(c)(1), which authorizes sanctions “[i]f a party fails
to provide information or identify a witness as required by Rule
26(a).”

Fed. R. Civ. P. 37(c)(1).

Because Rule 26(a) exempts pro

se litigation from initial disclosure requirements, see Fed. R.
Civ. P. 26(a)(1)(B)(iv), Defendant Ayisi did not “fail[] to provide
information . . . as required by Rule 26(a),” Fed. R. Civ. P.
37(c)(1).
As for Plaintiff’s third request, Defendant Ayisi sought and
received from the Court an extension of time to respond until
September

26,

2022.

(See

Text

Order

dated

Aug.

26,

2022.)

Defendant Ayisi therefore had not failed to timely respond to
Plaintiff’s discovery requests at the time Plaintiff filed the
First

Motion,

Consequently,

on

August

Plaintiff’s

31,

2022

reliance

on

(see

Docket

Federal

Entry

Rule

of

18).
Civil

Procedure 37(b)(2)(A)(vi) misses the mark because Defendant Ayisi
did not “fail[] to obey an order to provide or permit discovery.”

7

Case 1:22-cv-00092-CCE-LPA Document 33 Filed 11/17/22 Page 7 of 13

Fed. R. Civ. P. 37(b)(2)(A)(vi).

On the contrary, Defendant Ayisi

acted with the Court’s permission.

Finally, Plaintiff’s newly

raised arguments in his Reply Brief do not alter the outcome
because a “reply brief is limited to discussion of matters newly
raised in the response.”

M.D.N.C. LR 7.3(h).

Neither of the

arguments raised in the Reply Brief (see Docket Entry 26 at 1-2)
relate to matters addressed in Defendant Ayisi’s First Response.
As a result, the Court should deny the First Motion.
B. The Second Motion
The Second Motion cursorily contends that “Defendant has
failed to plead or otherwise defend” the case, and “has also failed
to comply with the rules of [d]iscovery . . . .”
24.)

(Docket Entry

To support those arguments, the Second Motion cites Federal

Rule of Civil Procedure 12(a)(1)(A) (id.), and a cover letter to
the Second Motion, addressed to the Court’s Clerk, states that
“Defendant is late and was given 21 days to produce and answer”
(Docket Entry 24-1).
The Second Motion also lacks merit because, as Defendant Ayisi
points

out

in

his

Second

Response,

“the

21

day

deadline

in

Fed[eral] Rule of] Civ[il] P[rocedure] 12(a)(1)(A) for filing
pleadings responsive to a Complaint[ does not] appl[y] to discovery
responses.” (Docket Entry 25 at 2-3.) Moreover, the Second Motion
erroneously suggests that Defendant “was given 21 days to produce”
(Docket Entry 24-1) when, as related above, Defendant Ayisi sought

8

Case 1:22-cv-00092-CCE-LPA Document 33 Filed 11/17/22 Page 8 of 13

and received from the Court a 30-day extension of time to respond
to Plaintiff’s discovery requests.
2022.)

(See Text Order dated Aug. 26,

As a result, the Second Motion lacks any basis in fact or

law, and the Court should deny it.
C. The Third Motion
The Third Motion, building on an argument Plaintiff hinted at
in his first Reply Brief and the Second Motion, argues the Court
should enter a default judgment against Defendant Ayisi because he
did “not provid[e] full discovery of documents requested and did
not meet the deadline issued by the [C]ourt of 9/26/22 [because the
production] arrived days later and incomplete.”

(Docket Entry 29

at 1.) The Third Motion asserts that “no mail was delivered” (id.)
to Plaintiff’s cell on September 26, 2022, thereby rendering
Defendant Ayisi’s production untimely (see id.).
Third

Motion

contends

that

“[D]efendant

documents [he] wanted to produce.”

(Id.)

In addition, the

[Ayisi]

‘chose’

what

According to Plaintiff,

Defendant Ayisi produced “[n]o x[-]rays from the facial injuries,
and no x[-]rays from the knee injuries . . . [as well as] no
documentation from the company that actually provides the results
and a complete breakdown, given by the doctor who reads the x[]rays, informing the physician at G[uilford] C[ounty] J[ail].”
(Id. at 1-2.)
Defendant Ayisi’s Third Response counters that he timely
produced documents because “the certificate of service . . . was

9

Case 1:22-cv-00092-CCE-LPA Document 33 Filed 11/17/22 Page 9 of 13

dated September 26, 2022 (in compliance with the Court’s extension
order).”

(Docket Entry 30 at 3.)

The Third Response argues

further that “[s]ervice by mail is entirely appropriate under the
Federal Rules [of Civil Procedure] and using first class mail does
not render the discovery documents untimely.”

(Id.)

As for the

alleged incompleteness of the production, the Third Motion attaches
(with Bates Numbers) “the independent radiologist’s reports” (id.
at 4), undercutting Plaintiff’s claim that he did not receive them.
And while Plaintiff also complained of not receiving x-rays from
his face and knee injuries (see Docket Entry 29 at 1-2), Defendant
Ayisi responds that “it would be unusual to provide the films to a
pro-se inmate who is both unqualified and unequipped to read them
on his own. That said, if Plaintiff wants the films, he should ask
for them and, if that fails, file a Motion to Compel.”

(Docket

Entry 30 at 6.)
Plaintiff’s Reply to the Third Response takes issue with
Defendant Ayisi’s attempted reliance on the date on the certificate
of service, arguing that “[anyone] can sign anything and put a date
there, the point is that [Defendant Ayisi’s production] got to
[Plaintiff] after Sept[ember] 26, 2022[,] and there is no postmark
on the envelope . . . .”

(Docket Entry 31 at 1.)

disputes

received

that

Plaintiff

any

The Reply also

independent

radiologist

reports, stating that “there was nothing from QMX Mobile at all
. . . .”

(Id. at 2.)

Finally, the Reply highlights purported

10

Case 1:22-cv-00092-CCE-LPA Document 33 Filed 11/17/22 Page 10 of 13

inconsistencies in Plaintiff’s medical records (see id. at 3-4),
and labels “the staff at G[uilford] C[ounty] J[ail as] incompitent
[sic] or liars that will cover up injuries” (id. at 4).
The Third Motion, like its predecessors, also lacks merit.
The date of Defendant Ayisi’s mailing, not the date of Plaintiff’s
receipt, governs the timeliness of the production. See Fed. R. Civ.
P. 5(b)(2)(C) (“A paper is served . . . by . . . mailing it to the
person’s last known address–in which event service is complete upon
mailing.” (emphasis added)); see also Sterling v. Interlake Indus.
Inc., 154 F.R.D. 579, 584 (E.D.N.Y. 1994) (holding that motion to
dismiss placed in mail after last pickup of day on day of deadline
still timely because “the Federal Rules do not say anything about
mailing before the close of business or after the ‘last mail
pick-up of the day’”); Boyd v. Jordan, 60 F.R.D. 203, 204 (E.D.N.C.
1973) (looking to Rule 5(b) in deeming timely motion to dismiss
mailed to plaintiff one day prior to deadline and filed by clerk
one day after deadline).

Moreover, to identify the mailing date,

the Court may rely on the date on Defendant Ayisi’s certificate of
service, which confirms he timely produced here.

See Ashford v.

Gordon, Civ. Action No. 13-1113, 2013 WL 5495280, at *2 (D.S.C.
Oct.

2,

2013)

(denying

motion

to

compel

where

dates

on

“certificates of service show[] that [the defendants’] response to
[the plaintiff]’s discovery requests were timely filed”).

11

Case 1:22-cv-00092-CCE-LPA Document 33 Filed 11/17/22 Page 11 of 13

Further, as to the Third Motion’s contention that Defendant
Ayisi did not produce independent radiologist reports (Docket Entry
29 at 2), and the allegation in Plaintiff’s Reply that “there was
nothing from QMX Mobile at all” (Docket Entry 31 at 2), Defendant
Ayisi’s

Third

Response,

and

the

exhibits

attached

thereto,

demonstrate otherwise (see Docket Entry 30-1, Docket Entry 30-2).
Finally, any argument from Plaintiff as to supposed inconsistencies
or fabrications in his medical records (see Docket Entry 31 at 34), do not bear relevance on the question of whether Defendant
Ayisi complied with his discovery obligations and, in any event
could support only a compulsion order, not a default judgment,
compare Fed. R. Civ. P. 37(a)(3)(B) (authorizing “order compelling
. . . production” where “a party fails to produce documents,” with
Fed. R. Civ. P. 37(b)(2)(A) (providing that, where “a party . . .
fails to obey an order to provide or permit discovery, including an
order under Rule . . . 37(a), the court . . . may issue further
just orders,” which may include “rendering a default judgment
against the disobedient party”).

As a result, the Court should

also deny the Third Motion.
III. CONCLUSION
Plaintiff has not established any grounds for a default
judgment against Defendant Ayisi.

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Case 1:22-cv-00092-CCE-LPA Document 33 Filed 11/17/22 Page 12 of 13

IT IS THEREFORE RECOMMENDED that the First Motion (Docket
Entry 18), the Second Motion (Docket Entry 24), and the Third
Motion (Docket Entry 29) be denied.
This 17th day of November, 2022.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge

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