Blackwell v. Houser et al
Filing
94
ORDER granting in part and denying in part 57 Defendants' Joint Motion to Dismiss, Motion to Compel Plaintiff's Attendance at Deposition; denying 54 Plaintiff's Motion for Depositions; denying 59 Plaint iff's Motion to Compel Discovery; denying 65 Plaintiff's Motion to Subpoena Information, Documents, Audio/Video; denying 67 Plaintiff's Motion for Extension of Time to Respond to Discovery Requests; denying 68 Plaintiff's Motion to Present Facts and Injunction Relief; denying 72 Plaintiff's Motion for an Order to Compel Discovery. Dispositive motions deadline shall be extended to 30 days from the date on which Plaintiff's deposition is taken. Signed by Chief Judge Frank D. Whitney on 1/27/2016. (Pro se litigant served by US Mail.)(khm)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:16-cv-67-FDW
JOSHUA LEE BLACKWELL,
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Plaintiff,
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vs.
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ALAN HOUSER, et al.,
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Defendants.
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___________________________________ )
ORDER
THIS MATTER is before the Court on the following motions: (1) a Motion for
Depositions, (Doc. No. 54), filed by Plaintiff; (2) a Joint Motion to Dismiss or, Alternatively,
Motion to Compel Plaintiff’s Attendance at Deposition, (Doc. No. 57), filed by Defendants Alan
Houser, Judy Humphries, and John H. Piland; (3) a Motion to Compel Discovery, (Doc. No. 59),
filed by Plaintiff; (4) a Motion for Extension of Time to Respond to Discovery, (Doc. No. 67),
filed by Plaintiff; (5) a Motion to Present Facts and Injunction Relief, (Doc. No. 68), filed by
Plaintiff; (6) a Motion to Subpoena Information, Documents, Audio/Video, (Doc. No. 65), filed
by Plaintiff; and (7) a Motion for an Order to Compel Discovery, (Doc. No. 72), filed by
Plaintiff.
I.
BACKGROUND
Pro se Plaintiff Joshua Lee Blackwell, a pre-trial detainee incarcerated at the Lincoln
County Detention Center, in Lincolnton, North Carolina, originally filed this action on April 22,
2016, pursuant to 42 U.S.C. § 1983. In the First Amended Complaint (Doc. No. 35), filed on
September 16, 2016, Plaintiff generally alleges that he received constitutionally inadequate
medical care during his most recent confinement in the Lincoln County Detention Center, which
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began in December 2015. Defendant Lt. Alan Houser is the Jail Administrator for the Lincoln
County Sheriff’s Office. Defendant Judy Humphries, the jail’s nurse, and Defendant John
Piland, the jail’s doctor, are not employed by the Sheriff or Lincoln County. Pursuant to this
Court’s original scheduling order entered on August 8, 2016, the discovery completion deadline
was December 6, 2016. (Doc. No. 26). On January 5, 2017, the Court granted Defendants’
motion for extension of time to file dispositive motions. (Doc. No. 92). Dispositive motions are
now due by February 4, 2017. Plaintiff has filed numerous motions related to discovery that are
now pending. Furthermore, Defendants have filed a motion to dismiss based on Plaintiff’s
refusal to sit for his deposition at the jail. The Court will address the parties’ motions in turn.
II.
DISCUSSION
A. Defendants’ Joint Motion to Dismiss or, Alternatively, Motion to Compel Plaintiff’s
Attendance at Deposition, (Doc. No. 57)
The Court first considers Defendants’ motion to dismiss based on Plaintiff’s refusal to
allow his deposition to be taken. Defendants’ brief in support of the motion shows that on
November 16, 2016, Plaintiff was served by mail with a Notice of Deposition, scheduling his
deposition at the jail for 9 a.m. on November 29. See (Doc. No. 57 at p. 3, ¶ 3: Declaration of
Scott D. MacLatchie). On the morning of November 29, counsel for all Defendants drove
separately to Lincolnton fully expecting the deposition to go forward, as Plaintiff had never
communicated otherwise beforehand. (Id. at p. 4, ¶ 4). Upon arrival at the jail, counsel learned
that Plaintiff was refusing to leave his cell to be deposed, reportedly stating that only a judge
could order him to give a deposition. (Id. at p. 4, ¶ 5).
In response, defense counsel asked Detention Officer Charlie Greene to go back to
Plaintiff’s cell with a message: The Notice of Deposition he had received was sufficient to
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require his attendance; three attorneys had made the trip and were ready to proceed; and that if
he continued to refuse, the Defendants would file a motion to dismiss his lawsuit. (Id. at p. 4, ¶
5). Greene left and returned a short while later stating that Plaintiff was still refusing to leave his
cell and be deposed. To memorialize what had occurred, the court reporter went on the record
and, after being duly sworn, Greene recounted his brief conversation with Plaintiff. See (Doc.
No. 57-2: Transcript, Ex. 2 to MacLatchie Declaration). As Greene testified: “[Plaintiff] said
until the court orders him to do this deposition, his answer is still, yes, he’s not coming.” (Id. at
p. 6, lines 6-8). Based on Plaintiff’s refusal to submit to his deposition, Defendants seek an order
from this Court either dismissing this action or ordering Plaintiff to sit for deposition and be
assessed the costs Defendants incurred through his refusal to cooperate the first time around. In
his response to the motion, Plaintiff concedes that he refused to allow his deposition, but he
contends that his refusal but “not without cause” based on Defendants’ failure to initially respond
to Plaintiff’s own motion for depositions. (Doc. No. 83 at 1).
FED. R. CIV. P. 37(d) allows the district court to dismiss an action if a party “fails, after
being served with proper notice, to appear for that person’s deposition.” Here, Plaintiff was
served by mail with “proper notice” some 13 days before the scheduled date. That alone was
sufficient to require he present himself for deposition. Jules Jordan Video, Inc. v. 144942
Canada Inc., 617 F.3d 1146, 1158 (9th Cir. 2010) (where the person to be deposed “is a party, a
simple notice of deposition is sufficient to compel attendance”). No further “court order” was
necessary.1 Thus, dismissal is an appropriate consequence in this case. Nevertheless, the Court
Although Rule 30(a)(2)(B) requires a court order to depose an inmate confined in “prison,”
Plaintiff is a pretrial detainee being housed in a local county jail. As such, Rule 30(a)(2)(B) is
inapplicable. See Maryland v. Shatzer, 559 U.S. 98, 107 n.2 (2010) (explaining that “prison”
refers to a “‘state or federal facility of confinement for convicted criminals’” whereas “‘persons
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will not impose the drastic sanction of dismissal at this time. Rather, the Court will grant the
relief Defendants alternatively seek by issuing an order requiring Plaintiff to participate in his
deposition and by ordering Plaintiff to pay fees incurred by Defendants in traveling to take
Plaintiff’s failed deposition on November 29, 2016.
Fed. R. Civ. P. 37(a) authorizes the filing of a motion to compel where a party has failed
to satisfy their discovery obligations. Where the motion is granted, subsection (a)(5)(A) requires
the Court to award the moving parties “reasonable expenses incurred in making the motion,
including attorney’s fees,” unless “(i) the movant filed the motion before attempting in good
faith to obtain the disclosure or discovery without court action; (ii) the opposing party’s
nondisclosure, response, or objection was substantially justified; or (iii) other circumstances
make an award of expenses unjust.” Here, Plaintiff’s refusal was not substantially justified, and
Plaintiff’s indigent pro se status is insufficient to “make an award of expenses unjust.” See
Beasley v. Novant Health, Inc., No. 1:15cv946, 2016 WL 4435230, at *5 (M.D.N.C. Aug. 19,
2016) (a party’s “pro se status does not excuse her from complying with discovery obligations
or, in and of itself, render an award of expenses unjust”); Brown v. MV Student Transp., No.
4:11-cv-685, 2012 WL 2885252, at *2 (E.D. Mo. July 13, 2012) (the fact that the pro se plaintiff
“was granted in forma pauperis status” would not relieve her from being assessed at least some
of defendant’s attorney’s fees and costs arising out of plaintiff’s submission of insufficient
written discovery responses). Thus, the Court will enter an order compelling Plaintiff to submit
to deposition on a new date and time to be set by Defendants within sixty (60) days of this Order.
To this extent, the Court will extend the time for filing dispositive motions to 30 days after the
awaiting trial’” are housed in local detention centers called “jails”).
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date on which Defendants take Plaintiff’s deposition. Additionally, Plaintiff is responsible for
reimbursing the costs associated with defense counsel travelling to and from Lincolnton on
November 29. Defendants shall submit these travel costs and the court reporter’s fee to this
Court within a reasonable time, and the Court will determine how much of the costs Plaintiff will
be responsible to pay.
B. Plaintiff’s Motion for Depositions, (Doc. No. 54)
The Court next considers Plaintiff’s Motion for Depositions, filed on October 27, 2016,
in which Plaintiff requests to take the depositions of the following persons: Defendant Houser,
Defendant Humphries, Defendant Piland, Plaintiff’s mother June Blackwell, Plaintiff’s sister
Ruby Boggess, and “Officer Stephens,” who is identified as an officer at the Lincoln County
Detention Center. Plaintiff also states that he “comes to the court requesting to proceed with
these depositions as indigent.” (Doc. No. 54 at 1-2). Thus, he either seeks for the Court or
Defendants to pay for the costs of the proposed depositions.
Civil litigants, including pro se litigants, generally bear their own deposition costs.
Melton v. Simmons, No. 1:08CV458-3-MU, 2009 WL 454619, at *2 (W.D.N.C. Feb. 23, 2009)
(citing Badman v. Stark, 139 F.R.D. 601, 605 (M.D. Pa 1991) (28 U.S.C. § 1915(a) does not
require the government to advance funds for deposition expenses); Doe v. United States, 112
F.R.D. 183, 185 (S.D.N.Y. 1986) (neither the defendant nor the government is required to pay
for the deposition costs of a prisoner litigant)). Furthermore, a plaintiff proceeding in forma
pauperis must still pay fees associated with any depositions of defendants. Brown v. Carr, 236
F.R.D. 311, 313 (S.D. Tex. 2006) (citing Tajeddini v. Gluch, 942 F. Supp. 772, 782 (D. Conn.
1996) (“In forma pauperis status does not require the Government to advance funds to pay for
deposition expenses.”); Fernandez v. Kash N’ Karry Food Stores, Inc., 136 F.R.D. 495, 496
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(M.D. Fla. 1991) (witness and mileage fees required to be paid by indigent plaintiff); see also
Nowlin v. Lusk, No. 11CV712S, 2014 WL 298155, at *9 (W.D.N.Y. Jan. 28, 2014) (“The costs
of a deposition (the fees for swearing the oaths for testimony, the costs of recording testimony,
and, if by remote means, the costs of setting up the recording) is usually borne by the party
taking the deposition, even when that party is proceeding pro se and granted in forma pauperis
status.”). These deposition costs include not only any fees, but the cost of the court reporter's
services as well as the cost for copies of the transcripts. Id. Plaintiff’s motion is denied, as
Plaintiff is not entitled to depositions to be paid for by either Defendants or the Court.
C. Plaintiff’s Motion to Compel Discovery, (Doc. No. 59)
The Court next considers Plaintiff’s Motion to Compel Discovery, filed on December 2,
2016, in which Plaintiff seeks an order from the Court requiring Defendants Houser, Humphries,
and Piland to answer the Interrogatories and Requests for Production of Documents that Plaintiff
has provided to each Defendant. The Court denies the motion for the reasons stated in
Defendants’ opposition brief, in which Defendants assert that the motion is moot because
Defendants have since responded to the discovery requests from Plaintiff.
D. Plaintiff’s Motion for Extension of Time to Respond to Discovery, (Doc. No. 67)
The Court next considers Plaintiff’s Motion for Extension of Time to Respond to
Discovery, filed on December 8, 2016. In his motion, Plaintiff explains that he refused to sit for
his deposition scheduled for November 29, 2016, because Defendants had not yet complied with
Plaintiff’s discovery requests. Plaintiff seeks “an extension of time to respond to discovery since
the Defendants’ attorneys [have] failed to comply with discovery.” (Doc. No. 67 at 2).
Plaintiff’s motion is denied as moot since the Court is requiring, through this Order, Plaintiff to
sit for his deposition at a time to be determined.
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E. Plaintiff’s Motion to Present Facts and Injunction Relief, (Doc. No. 68)
The Court next considers Plaintiff’s Motion to Present Facts and Injunction Relief, filed
on December 8, 2016. In his motion, Plaintiff does not appear to seek any specific action by the
Court. Rather, he asks the Court to “take in consideration that all Defendants attorneys’ have
failed to comply with any of the discovery.” The motion will be denied to the extent that
Defendants have shown that they have now responded to Plaintiff’s discovery requests.
F. Plaintiff’s Motion to Subpoena Information, Documents, Audio/Video, (Doc. No. 65)
The Court next considers Plaintiff’s Motion to Subpoena Information, Documents,
Audio/Video, filed on December 9, 2016. In his motion, Plaintiff seeks discovery through the
issuance of subpoenas by this Court of various documents and things, including “all grievances
and request of medical facility employees legal mail, and misc.”; “Securus Technologies video
visitation of Lincoln County Detention Center for the video and audio of all of Plaintiff Joshua
Lee Blackwell’s visitations from December 6, 2015, to present time”; “all rules, regulations and
policies of the Lincoln County Detention Center”; “written statements from the surgeon Dr.
Fredrick Hargrove at Graystone Eye in Hickory, North Carolina”; “all video footage and audio
of the encounter with Lt. Alan Houser from start to finish” from December 21, 2015 at 4:00 p.m.
to 4:30 p.m.; and “all documents also pertaining to the supposed investigation of that day,”:
“video and audio footage of Plaintiff [] while he was placed in the rubber room at Lincoln
County Detention Center” on September 6, 2016, at 9:00 p.m. until September 7, 2016; “video
and audio footage of Plaintiff [] and Sgt. R. Jones in the C-Block Dayroom” on November 15,
2016 at 9:40 p.m.; “all copies of instruction on how to use the copier, the functions, the manual
guide to the copying machine, and the brand, model, and year of the copying machine” in the
intake area of the Lincoln County Detention Center”; and “video and audio of my legal work
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being searched on my return back to Lincoln County Detention Center from Central Prison by
Lt. Alan Houser” in June 2016.
Plaintiff’s motion for the issuance of subpoenas by the Court is denied because it was
filed after the deadline for discovery. See, e.g., Fleetwood Transp. Corp. v. Packaging Corp. of
Am., No. 1:11MC45, 2011 WL 6151479, at *2 (M.D.N.C. Dec. 12, 2011) (“Upon the
determination that a Rule 45 subpoena constitutes discovery, courts have routinely held that said
subpoenas served outside of the discovery period are untimely.”); Joseph P. Carroll Ltd. v.
Baker, No. 09cv3174, 2012 WL 1232957, at *2 (S.D.N.Y. Apr. 12, 2012) (“It is black letter law
that parties may not issue subpoenas pursuant to Federal Rule of Civil Procedure 45 as a means
to engage in discovery after the discovery deadline has passed.”) (internal quotation omitted).
G. Plaintiffs’ Motion for an Order to Compel Discovery, (Doc. No. 72)
The Court next considers Plaintiff’s Motion for an Order to Compel Discovery, filed on
December 16, 2016, and signed by Plaintiff on December 8, 2016. In the motion, Plaintiff seeks
an order from the Court compelling Defendant to fully respond to Plaintiff’s Interrogatories and
Requests for Production of Documents. Plaintiff’s motion to compel involves the same
discovery requests underlying Plaintiff’s first motion to compel, filed on December 2, 2016.
Defendants explain in their opposing brief that Plaintiff has now received Defendants’ discovery
requests and that Plaintiff now seeks an order compelling Defendants to more fully answer five
interrogatories, and to respond to requests that Defendants objected to as untimely. The motion
also asks for deposition discovery.
Plaintiff’s motion is denied for several reasons. First, the motion was signed on
December 8, 2016, two days after the period for discovery had already ended. Next, Defendants
have shown that they appropriately responded to Plaintiff’s discovery requests and that
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Defendants’ objections to various objections were proper. Finally, as to Plaintiff’s request for
discovery in the form of depositions, the Court has already denied Plaintiff’s motion for
depositions.
IV.
CONCLUSION
For the reasons stated herein, Defendants’ motion to dismiss will be denied to the extent
that the Court will not dismiss this action at this time based on Plaintiff’s failure to allow his
deposition to be taken. However, the Court grants Defendants’ alternative motion to compel in
that Plaintiff must submit to a deposition, at a time and place to be determined by Defendants. If
Plaintiff again refuses to allow Defendants to take his deposition, this matter will be dismissed
without further notice to Plaintiff. Plaintiff’s pending motions related to his discovery requests
are all denied, and this Court will entertain no further motions by Plaintiff regarding discovery,
as the deadline for discovery has passed.
IT IS THEREFORE ORDERED THAT:
(1)
Defendants’ Joint Motion to Dismiss or, Alternatively, Motion to Compel
Plaintiff’s Attendance at Deposition, (Doc. No. 57), is DENIED to the extent that
the Court will not dismiss this action, and the motion is GRANTED to the extent
that the Court will compel Plaintiff to sit for his deposition, within sixty (60) days
of this Order, at a time and place to be determined by Defendants. Plaintiff’s refusal
to sit for his deposition will result in the dismissal of this action without further
notice to Plaintiff.
Furthermore, Plaintiff is responsible for paying the costs
incurred by Defendants in traveling to take Plaintiff’s deposition on November 29,
2016. Defendants shall submit their travel costs and the court reporter’s fee to this
Court within a reasonable time, and the Court will thereafter determine how much
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of the costs Plaintiff will be responsible to pay.
(2)
The following motions are all DENIED: (1) Plaintiff’s Motion for Depositions,
(Doc. No. 54); (2) Plaintiff’s Motion to Compel Discovery, (Doc. No. 59); (4)
Plaintiff’s Motion for Extension of Time to Respond to Discovery, (Doc. No. 67);
(5) Plaintiff’s Motion to Present Facts and Injunction Relief, (Doc. No. 68); (6)
Plaintiff’s Motion to Subpoena Information, Documents, Audio/Video, (Doc. No.
65); and (7) Plaintiff’s Motion for an Order to Compel Discovery, (Doc. No. 72).
(3)
The Court further finds that the deadline for the parties to file dispositive motions
shall be extended to thirty (30) days from the date on which Plaintiff’s deposition
is taken.
Signed: January 27, 2017
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