Torres v. Ishee, et al

Filing 58

ORDER denying at MOOT 39 MOTION to Opt-Out of Services from North Carolina Prison Legal Services; denying 41 MOTION "Request for Subpoenas for Deposition of Fact Witnesses"; granting 47 MOTION to Compel; denying 50 MOTION to Enforce Sanctions; denying 51 MOTION for Written Deposition on Non-Party Fact Witnesses. Defendants shall respond to the Plaintiff's outstanding discovery requests by 1/31/2023. ( Responses due by 1/31/2023 ). Signed by Chief Judge Martin Reidinger on 1/16/2023. (Pro se litigant served by US Mail.) (hms)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:21-cv-00068-MR

JONATHAN ANTHONY LEE TORRES, )
)
Plaintiff,
)
)
vs.
)
)
TODD ISHEE, et al.,
)
)
Defendants.
)
_______________________________ )

ORDER

THIS MATTER is before the Court on the Plaintiff’s “Motion to Opt-Out
of Services from North Carolina Prison Legal Services” [Doc. 39]; “Request
for Subpoenas for Depositions of Fact Witnesses” [Doc. 41]; Motion to
Compel Discovery [Doc. 47]; Motion to Enforce Sanctions [Doc. 50]; and
“Motion for Written Deposition on Non-Party Fact Witnesses” [Doc. 51]. The
Plaintiff is proceeding in forma pauperis. [Doc. 8].
The pro se incarcerated Plaintiff filed this civil rights action pursuant to
42 U.S.C. § 1983, the Religious Land Use and Institutionalized Persons Act
(RLUIPA), and North Carolina law, addressing incidents that allegedly
occurred at the Marion Correctional Institution.1

1

The Second Amended

The Plaintiff is presently incarcerated at the Maury Correctional Institution.

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Complaint [Doc. 25] passed initial review on claims against a total of 13
Defendants on claims addressing the conditions of his confinement, his right
to practice his religion, retaliation, excessive force, and interfering with the
mail, and the Court exercised supplemental jurisdiction over claims that the
Plaintiff raised under North Carolina law. [Doc. 27]. All of the Defendants
were served and filed an Answer. [Doc. 38]. The Court entered a Pretrial
Order and Case Management Plan [Doc. 40], which was extended until
January 17, 2023 to complete discovery, and until February 16, 2023 to file
dispositive motions. [See Dec. 16, 2022 Text-Only Order].
In the Motion to Opt-Out of Services from North Carolina Prisoner
Legal Services [Doc. 39], the Plaintiff asks the Court to withdraw his request
for NCPLS’s appointment to assist him with discovery. The Motion is denied
as moot because NCPLS was not appointed in this case. [See Doc. 40].
In his “Request”2 [Doc. 41] and Motion for Written Deposition [Doc. 51],
the Plaintiff appears to seek leave from the Court, and for the issuance of
subpoenas, to depose the following non-parties by written questions:
Thomas Hamilton and Curtis Tate, unit managers; R. Shelton, a case

The Court liberally construes the “Request” as a Motion for Subpoenas. The Plaintiff is
reminded that requests to the Court must be in the form of Motions. [See Doc. 3 at ¶ 5
(Order of Instructions)]. Any future filings that fail to comply with the applicable rules
and/or this Court’s Orders will be disregarded and may be stricken.
2

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manager; FNU Hollingsworth, a correctional sergeant; FNU Hewitt, the head
of mental health; and FNU Thao, mailroom staff. [Doc. 41]. The Federal
Rules of Civil Procedure provide that any person may be deposed by written
questions upon stipulation of the parties, or leave of court. Fed. R. Civ. P.
31(a)(1)-(2). However, the Plaintiff does not claim to have served the written
questions on the parties along with a notice informing them of the deponents’
names and addresses, and identifying the officer before whom the
depositions will be taken. See Fed. R. Civ. P. 31(a)(3). Nor does he state
that he is willing or able to pay the expenses related to taking and recording
such depositions.3 See generally United States v. MacCollom, 426 U.S. 317,
321 (1976) (“The established rule is that the expenditure of public funds is
proper only when authorized by Congress....”); see also Fed. R. Civ. P.
30(b)(3) (the party noticing a deposition must state in the notice the method
for recording the testimony, and “[t]he noticing party bears the recording
cost”). Accordingly, his requests for leave to depose witnesses by written
questions, and for the issuance of subpoenas regarding the same, are
denied at this time.

3

To the extent that the Plaintiff is attempting to serve interrogatories on non-parties, he
may not do so. See Fed. R. Civ. P. 45 (providing for discovery from non-parties in the
form of depositions, the production of documents, electronically stored information, or
tangible things in that person’s possession, or the inspection of premises); see also Fed.
R. Civ. P. 33 (“a party may serve on any other party no more than 25 written
interrogatories….”) (emphasis added).
3
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In his Motion to Compel Discovery [Doc. 47], the Plaintiff claims that
he served defense counsel with interrogatories, requests for production of
documents and requests for admissions in September and October, 2022;
that defense counsel did not respond within 30 days or request an extension
of time; that the discovery he seeks is proper and appropriate; and that
defense counsel has not responded to the Plaintiff’s letters. He asks the
Court to sanction the Defendants and defense counsel based on counsel’s
failure to timely respond to his discovery requests and letters. [Doc. 50]. The
Defendants filed a Response [Doc. 53], arguing that sanctions should not be
imposed because: counsel was on FMLA leave when the Plaintiff served his
discovery requests; counsel filed a notice of substitution in the case two days
before the discovery responses were due; counsel was unable to promptly
file a motion for extension of time due to a heavy caseload and return to
work; counsel is still obtaining responses from some Defendants, some of
whom are no longer employed at NCDPS; and counsel will serve the Plaintiff
with discovery responses upon receiving and reviewing the same from the
Defendants.
Under Rule 37 of the Federal Rules of Civil Procedure, “a party may
move for an order compelling disclosure or discovery.” Fed. R. Civ. P.
37(a)(1). “[T]he party or person resisting discovery, not the party moving to
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compel discovery, bears the burden of persuasion.” Kinetic Concepts, Inc.
v. ConvaTec Inc., 268 F.R.D. 226, 243 (M.D.N.C. 2010). The decision to
grant or deny a motion to compel is generally an issue within the broad
discretion of the trial court. See Lone Star Steakhouse & Saloon, Inc. v.
Alpha of Va., Inc., 43 F.3d 922, 929 (4th Cir. 1995). The Court has broad
discretion to impose sanctions on a party who fails to comply with the Court’s
discovery orders. Hathcock v. Navistar Int’l Transp. Corp., 53 F.3d 36, 40
(4th Cir. 1995). When the sanction to be imposed is dismissal of an action,
however, “the range of discretion is more narrow than when a court imposes
less severe sanctions.” Id. (internal quotation marks and citation omitted).
The Fourth Circuit established four factors for courts to consider before
dismissing an action as a sanction:
(1) whether the noncomplying party acted in bad faith;
(2) the amount of prejudice [her] noncompliance caused [her]
adversary, which necessarily includes an inquiry into the
materiality of the evidence [she] failed to produce;
(3) the need for deterrence of the particular sort of
noncompliance; and
(4) the effectiveness of less drastic sanctions.
Mutual Fed. Sav. & Loan Ass’n v. Richards & Assocs., Inc., 872 F.2d 88, 92
(4th Cir. 1989) (citing Wilson v. Volkswagen of Am., Inc., 561 F.2d 494, 50306 (4th Cir. 1977)). “Such an evaluation will insure that only the most flagrant
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case, where the party’s noncompliance represents bad faith and callous
disregard for the authority of the district court and the Rules, will result in the
extreme sanction of dismissal or judgment by default.” Id.
Here, it appears that the Defendants’ failure to timely respond to the
Plaintiff’s discovery responses was due to excusable neglect, rather than
bad faith. No prejudice to the Plaintiff is apparent, as the scheduling order
deadlines have been extended and defense counsel explains that the
discovery responses are forthcoming. Any need to deter defense counsel’s
conduct does not appear in this case and it appears that an extension of the
time to respond to the Plaintiff’s discovery requests is all that is required to
remedy the matter. Accordingly, the Motion to Compel will be granted only
insofar as the Defendants will be required to respond to all of the Plaintiff’s
outstanding discovery requests by January 31, 2023, and the Court declines
to impose sanctions at this time.
IT IS, THEREFORE, ORDERED that:
1. The Plaintiff’s “Motion to Opt-Out of Services from North Carolina
Prison Legal Services” [Doc. 39] is DENIED AS MOOT.
2. The Plaintiff’s “Request for Subpoenas for Depositions of Fact
Witnesses” [Doc. 41] is construed as a Motion for Subpoenas and
is DENIED.
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3. The Plaintiff’s Motion to Compel Discovery [Doc. 47] is GRANTED
insofar as the Defendants shall respond to the Plaintiff’s outstanding
discovery requests by January 31, 2023.
4. The Plaintiff’s Motion to Enforce Sanctions [Doc. 50] is DENIED.
5. The Plaintiff’s Motion for Written Deposition on Non-Party Fact
Witnesses [Doc. 51] is DENIED.
IT IS SO ORDERED.
Signed: January 16, 2023

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