Covington v. Duncan et al

Filing 25

ORDER denying Plaintiff's 19 Motion for and Order Compelling Discovery. Signed by Chief Judge Frank D. Whitney on 1/3/2018. (Pro se litigant served by US Mail.)(nvc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:16-cv-134-FDW
KARL L. COVINGTON, JR.,

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Plaintiff,
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vs.
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FNU DUNCAN, et al.,
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Defendants.
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__________________________________________)

ORDER

THIS MATTER is before the Court on periodic status review, and on Plaintiff’s Motion
for an Order Compelling Discovery (Doc. No. 19).
Pro se Plaintiff Karl L. Covington, Jr., filed this action pursuant to 42 U.S.C § 1983 on
June 13, 2016. (Doc. No. 1). The Amended Complaint, (Doc. No. 12), passed initial review on
claims that several employees of the Alexander Correctional Institution exercised excessive force
against him on January 5, 2016, while he was being escorted to a restrictive housing unit. See
(Doc. No. 20). Plaintiff was instructed to prepare summonses and submit them to the Clerk of
Court for service of process on the Defendants. Summons forms for service of process on
Defendants were issued electronically on December 6, 2017, (Doc. No. 16), and were returned
executed on December 27, 2017, on all Defendants except Sergeant Robert Murray, whose
summons was returned unexecuted on December 14, 2017. (Doc. No. 20). The “remarks” section
of the unexecuted summons states “12-12-17 Spoke to the Captain on duty at the prison – Captain
Hester. He stated that there has never been a Robert Murray that worked at the prison. Named
person unable to be served or located.” (Doc. No. 1 at 1).
The Court will allow Plaintiff to seek limited discovery from the North Carolina Attorney
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General for the sole purpose of seeking information as to whether a correctional officer with the
last name of Murray was employed at Alexander Correctional Institution at the time of the alleged
excessive force incident giving rise to this action. Plaintiff shall, therefore, have the right to submit
a discovery request on the North Carolina Attorney General, seeking information regarding the
existence and name of Defendant Murray. If Plaintiff does not seek such discovery within 30 days
of this Order, the Court will likely dismiss the action against Defendant Murray based on Plaintiff’s
failure to prosecute this action against him.
Plaintiff has filed a Motion for an Order Compelling Discovery seeking a copy of the prison
doctor’s use of force statement on the examination, treatment, and summary conclusion regarding
Plaintiff’s injury following the January 5, 2016, incident. (Doc. No. 19). He has apparently been
refused a copy of the report due to HIPPA concerns. See (Doc. No. 19 at 2). Plaintiff has been
granted limited discovery to attempt to identify Defendant Murray. All other discovery requests
are premature, as service of process is underway, no Defendant has yet filed an answer, and no
scheduling order has been entered. See Fed. R. Civ. P. 26(c) (as a general matter, a party must
make initial disclosures at or within 14 days after the parties Rule 26(f) conference); Local Rule
26.1 (“Official Court-ordered and enforceable discovery does not commence until issuance of the
scheduling order.”). Moreover, routine discovery requests should not be filed with the Court. See
Local Rule 26.2 (“The parties shall not file any initial disclosures, designations of expert witnesses
and their reports, discovery requests or responses therto, deposition transcripts, or other discovery
material unless: (1) directed to do so by the Court; (2) such materials are necessary for use in an
in-court proceeding; or (3) such materials are filed in support of, or in opposition to, a motion or
petition.”). The motion to compel discovery is therefore denied.
IT IS, THEREFORE, ORDERED that:
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1. Plaintiff’s Motion for an Order Compelling Discovery, (Doc. No. 19), is DENIED.
2. Limited discovery for the purpose of identifying and serving Defendant Murray is
granted as set forth in this Order. Plaintiff is cautioned that failure to timely comply with this Order
will likely result in Defendant Murray’s dismissal from the case.
3. The Clerk is respectfully instructed to mail a copy of this Order to the North Carolina
Attorney General.
IT IS SO ORDERED.
Signed: January 3, 2018

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