Pew v. Harris et al
Filing
175
MEMORANDUM (Order to follow as separate docket entry) re 164 MOTION to Compel Discovery filed by Alfonso Percy Pew, 153 MOTION for Hearing filed by Alfonso Percy Pew, 168 MOTION to Compel Discovery filed by Alfonso Percy Pew, 157 Lette r, 165 Letter, 156 MOTION for Hearing filed by Alfonso Percy Pew, 138 MOTION to Appoint Counsel filed by Alfonso Percy Pew, 149 MOTION for Preliminary Injunction filed by Alfonso Percy Pew, 160 MOTION to Compel Discovery filed by A lfonso Percy Pew, 174 MOTION Open Letter Motion to the Court to be Construed as Having a Brief in Support filed by Alfonso Percy Pew, 169 MOTION to Compel filed by Alfonso Percy Pew, 143 MOTION to Compel Discovery filed by Alfonso Percy Pew, 140 MOTION for Reconsideration re 137 Order on Motion for Discovery, filed by Alfonso Percy Pew, 163 Letter, 151 MOTION to Stay MOTION to Appoint Counsel filed by Alfonso Percy Pew. Signed by Honorable Matthew W. Brann on 4/11/2017. (jn)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ALFONSO PERCY PEW,
Plaintiff,
v.
R.N. L. HARRIS, et al..,
Defendants.
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Civil No. 3:12-CV-1984
(Judge Brann)
MEMORANDUM
APRIL 11, 2017
Plaintiff, Alfonso Percy Pew, an inmate currently confined at the State
Correctional Institution at Houtzdale (SCI-Houtzdale) in Houtzdale, Pennsylvania,
filed this pro se civil rights action pursuant to 42 U.S.C. § 1983. The action was
originally filed in the Eastern District of Tennessee on September 24, 2012, and
transferred to this Court on October 3, 2012. The matter proceeds on an amended
complaint. September 3, 2014, ECF No. 61. Plaintiff asserts that he was placed in
a restraint chair that he refers to as a “torture chair” for eight (8) hours while
housed at SCI-Smithfield on August 9, 2011, in violation of the Eighth
Amendment. All Defendants have been dismissed from this action except
Defendants Lois Harris and B. O’Donnell, two registered nurses. March 14, 2014,
ECF Nos. 107, 108.
While Plaintiff sought leave to file a second amended complaint, leave was
denied and Defendants’ motion to dismiss the second amended complaint was
granted. August 24, 2016, ECF Nos. 129, 130. Presently pending are numerous
motions filed by the Plaintiff in this case. The majority of the motions are with
respect to discovery. However, Plaintiff has also filed other motions wherein he
seeks the appointment of counsel, the scheduling of a telephone conference with
the Court, and the issuance of an injunction.
I.
BACKGROUND
A scheduling order was issued directing that all discovery be completed by
the parties on or before November 28, 2016, and any dispositive motions be filed
on or before December 28, 2016. August 25, 2015, ECF No. 131. An answer to
the amended complaint with affirmative defenses was filed by Defendants Harris
and O’Donnell. September 15, 2016, ECF No. 133. Several days later,
Defendants moved to depose Plaintiff, and this motion was granted. September 19,
2016, ECF No. 137. Plaintiff filed an emergency motion to appoint counsel
claiming that he was confined in a mental health unit at SCI-Greene, and was
entitled to a lawyer because he was on psychotropic medication and indigent, yet
required to pay for his own discovery materials. He claims that he is prejudiced
because he cannot afford discovery and is on narcotics. September 22, 2016, ECF
2
Nos. 138, 139.
Plaintiff also seeks reconsideration of the Court’s Order issued September
19, 2016, granting Defendants’ request to depose him. September 26, 2016, ECF
No. 140. In support of his motion for reconsideration, Plaintiff claims that because
he was not given an opportunity to oppose Defendants’ request and in light of his
medical condition, he should be appointed counsel to represent him at any
deposition. Id., ECF No. 141. His request for reconsideration has been opposed
by Defendants. October 11, 2016, ECF No. 146.
A motion to compel discovery was filed wherein Plaintiff seeks the
production of the following: (1) digital photos from the date of the incident at SCISmithfield claiming that the black and white ones he received are of poor quality;
(2) digital photos taken on February 29, 2012 by Daniel Zaremba, R. N., which
Plaintiff claims relate to the injuries he suffered on the date of the incident; (3)
Section 32 of the Department of Corrections’ Facility Security Procedures Manual
6.3.1, which addresses the excessive use of force; and (4) Section 33 of Procedures
Manual 6.3.1, which addresses the use of the restraint chair. September 26, 2016,
ECF Nos. 143, 144. Defendants have opposed this motion. October 12, 2016,
ECF No. 147.
3
Plaintiff thereafter filed a motion for an injunction to have his legal property
shipped to him at SCI-Dallas from SCI-Greene and a motion to stay discovery or
appoint counsel, due to his transfer from SCI-Greene and lack of access to any
legal documents to conduct discovery.1 October 28, 2016, ECF Nos. 149-152.
Defendants opposed the motion for injunction claiming that Plaintiff’s property
was sent to him at SCI-Dallas, and that he was provided the opportunity to
inventory it. As such, they argue that Plaintiff’s motion for injunctive relief is now
moot. November 4, 2016, ECF No. 155.
Prior to Defendants’ opposition, Plaintiff filed a combined motion and brief
requesting a telephone conference with the Court in this matter. November 1,
2016, ECF No. 153. In this filing, Plaintiff admits to having received his legal
property after he filed the motion for injunctive relief referenced above, but now
claims that Sergeant Bach and others on the 2-10 shift on K-Block at SCI-Dallas
confiscated and destroyed the “carry on bag” he brought with him to SCI-Dallas
which contained the complete record in the above case. Based on the foregoing, he
seeks a phone conference with the Court, as well as an injunction and sanctions
against Bach and the other unidentified SCI-Dallas employees.
1
Both of these motions are moot in that Plaintiff is no longer confined at
SCI-Dallas. See November 21, 2016, ECF No. 157.
4
Approximately one week later, Plaintiff filed an emergency letter/
motion/brief requesting that the Court intervene to prevent Sergeant Bach and an
unidentified RHU Lieutenant from declining to give his grievances to the
Grievance Coordinator at SCI-Dallas. November 9, 2016, ECF No. 156.
Defendants oppose this motion claiming that Plaintiff’s legal work from SCIGreene was sent to SCI-Dallas where Plaintiff had the opportunity to inventory it.
They further argue that any alleged denial of access to the courts by employees at
SCI-Dallas is not a proper basis for seeking injunctive relief in this case. November
22, 2016, ECF No. 159.
Plaintiff notified the Court that he was transferred to SCI-Houtzdale and
complains about his conditions and his cell there. November 21, 2016, ECF No.
157. He wants his motion construed as a brief, and requests that the Court
intervene to prevent the guards from hurting him and to allow him medical access.
Also pending are a number of motions to compel filed by Plaintiff wherein
he seeks discovery from Defendants. He first seeks information from Defendants
with respect to the restraint chair including any instructions, usage and safety
warnings pertaining to the chair. Plaintiff also seeks to know the number of
restraint chairs at SCI-Smithfield and their serial numbers. In addition, Plaintiff
would like to see all sets of the digital photos which were taken of Plaintiff in the
5
restraint chair, and any photos taken after the incident at SCI-Frackville by Daniel
Zaremba. Plaintiff also seeks copies of misconduct reports #B250271 and
#B768039, and the related DC-709s, and any ICAR records related to the smearing
of feces by Plaintiff in his cell. The later misconduct appears to have been issued
at SCI-Forest, and does not appear to be related to any activity by Plaintiff
occurring at SCI-Smithfield. According to Plaintiff, Defendants are withholding
this discoverable evidence from him and he wants it produced at SCI-Houtzdale.
November 30, 2016, ECF Nos. 160, 162. Defendants have also opposed this
motion. December 13, 2016, ECF No. 166.
The next motion to compel deals with the production of medical records to
Plaintiff for the purpose of photocopying. November 30, 2016, ECF No. 163.
Plaintiff contends that he is not being provided with access to make the
photocopies of the records that he needs or the means to choose the documents that
he needs to copy. He claims that he was only given one (1) hour while at SCIGreene while in restraints to view the medical records, which consisted of
numerous volumes. He further argues that no date and time were established to
enable him to make copies.
A third motion to compel was filed wherein Plaintiff seeks the production of
documents requested on or about September 1, 2016. December 1, 2016, ECF No.
6
164. This motion seeks to compel the medical records referenced above. Plaintiff
specifically refers to 13.2.1 Access to Health Care Procedures Manual, Section 10
regarding Medical Orders for Special Items and health care items receipts (DC443) for a scrotal support and a back brace Plaintiff received from SCI-Rockview
prior to his placement in the chair at SCI-Smithfield. Plaintiff also claims he has
not been allowed access to photocopy the x-ray results and recommendations made
at SCI-Frackville and SCI-Rockview with respect to steroids, neurontin, a scrotal
support, a back brace and a Tens Unit after he was in the “torture chair.” (Id.) He
further complains about “discoverable evidence” that Defendants will not provide
to inmates Cooke, Robinson and Cramer with respect to the fact that they were “let
out” of the torture chair prior to eight (8) hours. Plaintiff also seeks production of
the 8 hour continuous camera footage from the cage camera that he claims exists
while he was in the restraint chair. (Id.) Defendants have also opposed this motion
claiming that Plaintiff is not entitled to free copies of his medical records, he
cannot assert the claims of other inmates, and it has not been determined if there is
any videotape footage from any overhead camera in the strip cage on the date in
question. December 14, 2016, ECF No. 167.
Two additional motions to compel were filed on December 22, 2016. In the
first motion, Plaintiff seeks the answers to a second set of interrogatories he sent to
7
Defendant Harris, a second set of interrogatories he sent to Defendant O’Donnell,
and a Fourth Motion for Production of Documents wherein he seeks the following
from Defendants: (1) the Constant Watch Policy; (2) the name of the Hostage
Negotiator on duty when Plaintiff was placed in the restraint chair; and (3) the
portion of the Hostage Negotiator Policy that addresses negotiation with inmates
prior to their placement in a restraint chair. December 22, 2016, ECF No. 168.
Plaintiff attaches the discovery requests to his motion. (Id. at 2-5.)
In the second motion filed on this date, Plaintiff again seeks access to the
documents he challenged in the motion to compel filed on November 30, 2016,
wherein he states he was in restraints and only had one (1) hour to review the
documents. He claims that while Defendants claim he wants free copies, he does
not advance that argument, and is willing to pay for any copies once he is
permitted a proper amount of time to review the documents. Although he is now at
SCI-Houtzdale, he seeks production of the same documents produced at SCIGreene, and merely wants more time to review the records. December 22, 2016,
ECF No. 169.
The last filing appearing on the docket is Plaintiff’s “Open Letter Motion to
the Court.” March 29, 2017, ECF No. 174. He requests that this document serve
as both a motion and a supporting brief. In the filing, Plaintiff states that defense
8
counsel sent him a letter on February 28, 2017, stating that Plaintiff would receive
the relevant documents he previously reviewed at SCI-Greene from the Assistant
to the Superintendent at SCI-Houtzdale to review, including the medical records
and any DC-440 forms. Plaintiff claims that he did not receive any DC-440 forms.
He also complains that he did not receive the February 2012 Incident Report and
photos from Nurse Daniel Zaremba taken at SCI-Frackville regarding the injuries
he sustained in the torture chair.
II.
DISCUSSION
A.
Appointment of Counsel
Plaintiff initially sought the appointment of counsel in this case on
November 9, 2012, and it was subsequently denied without prejudice. July 24,
2013, ECF No. 26. A motion seeking reconsideration of the Court’s Order was
also denied. January 16, 2014, ECF Nos. 42, 43. Plaintiff later filed a motion “to
relate case and alternative to appointment of counsel”, but this motion was also
denied. August 4, 2014, ECF Nos. 59, 60. Plaintiff filed an emergency motion for
counsel due to his mental illness and the psychotropic medication and PREA
Therapy counseling he is receiving. September 22, 2016, ECF 138. He filed this
motion while confined at SCI-Greene, and states that he resides in the Diversionary
Treatment Unit (“DTU”) with serious mental health issues. He further alleges that
9
he is receiving weekly PREA therapy counseling, and is being treated with
psychotropic medication. As a result of the foregoing, he claims that he will be
prejudiced if forced to litigate this matter on his own.
As previously stated, although prisoners have no constitutional or statutory
right to appointment of counsel in a civil case2, the Court has discretion to request
“an attorney to represent any person unable to afford counsel.”3 The United States
Court of Appeals for the Third Circuit has stated that appointment of counsel for an
indigent litigant should be made when circumstances indicate “the likelihood of
substantial prejudice to him resulting, for example, from his probable inability
without such assistance to present the facts and legal issues to the court in a
complex but arguably meritorious case.”4
The Court previously set forth the initial determination to be made in
evaluating the expenditure of the “precious commodity” of volunteer counsel and
the other factors to be considered once this initial determination of whether the
2
See Parham v. Johnson, 126 F.3d 454, 46-57 (3d Cir. 1997).
3
28 U.S.C. 1915(e)(1); see also Montgomery v. Pinchak, 294 F.3d 492,
499 (3d Cir. 2002); Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993;) Ray v.
Robinson, 640 F.2d 474, 477 (3d Cir. 1981).
4
Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d Cir. 1984).
10
plaintiff’s case has some arguable merit in fact and law is made.5 July 24, 2013,
ECF 26 at 3-4. One of the grounds raised by Plaintiff in support of counsel was
that he suffered from mental illness and was mentally unstable.
As an initial matter, while the allegations Pew raises are serious, he is no
longer confined in the prison where the incidents are alleged to have taken place.
More importantly, while he claims to suffer from mental illness and to be being
treated for such, he is no longer confined at SCI-Greene, where he was in the DTU.
In addition, a review of the docket clearly reveals that Pew is capable of filing his
own motions and litigating this action. He is an experienced litigator in this
District and it cannot be said, at this point, that he will suffer any substantial
prejudice if forced to litigate this case on his own. This Court does not have a
large group of lawyers at its disposal to appoint as counsel in actions such as this,
nor are we confident that we could find an attorney who would undertake
representation in this action in a pro bono capacity.
This Court’s duty to construe pro se pleadings liberally6, coupled with Pew’s
apparent ability to litigate this action, militate against the appointment of counsel.
As such, the Court will deny the motion for appointment of counsel. In the event,
5
See Montgomery, 294 F.3d at 499; Tabron, 6 F.3d at 155-57.
6
See Haines v. Kerner, 404 U.S. 519 (1972).
11
however, that future proceedings demonstrate the need for counsel, the matter may
be reconsidered either sua sponte or upon motion of Pew.7
B.
Motion for Reconsideration
Plaintiff seeks reconsideration of the Court’s Order granting Defendants’
request to depose him. He claims that he was not afforded the opportunity to reply
to the motion, and wants to see the video of his entire time in the restraint chair
beginning with his placement there through his release from the chair. He would
also like counsel appointed for the deposition because he is a mental health inmate
confined in the D.T.U., he is on psychotropic drugs, he has a low I.Q., platelet
count and alkaline count, and a high cholesterol count and chemical density level.
In his supporting brief, he also adds that he sees a PREA therapist weekly.
“The purpose of a motion for reconsideration is to correct manifest errors of
law or fact or to present newly discovered evidence.”8 A court should grant a
motion for reconsideration if the party seeking reconsideration shows: “(1) an
7
Also pending is Plaintiff’s motion to stay discovery or appoint counsel in
this matter. October 28, 2016, ECF No. 151. This motion will be dismissed as
moot in that it is exclusively based on Plaintiff’s transfer from the D.T.U. at SCIGreene to SCI-Dallas. Plaintiff seeks a stay of discovery or, in the alternative, the
appointment of counsel due to his transfer and his mental illness. For the reasons
previously given, and because Plaintiff is currently confined at SCI-Houtzdale, this
motion will be denied.
8
Harsco v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985).
12
intervening change in the controlling law; (2) the availability of new evidence that
was not available when the court granted the motion for summary judgment; or (3)
the need to correct a clear error of law or fact or to prevent manifest injustice.”9
“A motion for reconsideration if not properly grounded on a request that the
Court simply rethink a decision it has already made.”10 In such a motion, “parties
are not free to relitigate issues that the Court has already decided.”11 “The standard
for granting a motion for reconsideration is a stringent one . . . . [A] mere
disagreement with the court does not translate into a clear error of law.”12 Because
federal courts have a strong interest in the finality of judgments, motions for
reconsideration should be granted sparingly.”13
In asking the Court to reconsider its Order of September 19, 2016, granting
Defendants’ request to depose him, Plaintiff fails to meet any of the criteria for
9
Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669,
677 (3d Cir. 1999).
10
Douris v. Schweiker, 229 F. Supp. 2d 391, 408 (E.D. Pa. 2002)
11
United States v. Jasin, 292 F. Supp. 2d 670, 676 (E.D. Pa. 2003)(internal
citation and quotations omitted).
12
Mpala v. Smith, CIV. 3:CV-06-841, 2007 WL 136750, *2 M.D. Pa. Jan.
16, 2007)(Kosik, J.) aff’d, 241 F. App’x 3 (3d Cir. 2007).
13
Cont’l Cas. Co. v. Diversified Indus., Inc., 884 F. Supp. 937, 943 (E.D.
Pa. 1995).
13
granting reconsideration. There is no change in the controlling law; there has been
no discovery of relevant information that would change the Court’s ruling; and
Plaintiff has not pointed to any clear or manifest injustice that would occur if his
motion was not granted. Rather, Plaintiff seeks to add conditions to his deposition,
specifically the appointment of counsel. Counsel has already been denied to
Plaintiff on July 24, 2013, and again in this Memorandum. While Plaintiff cites his
various health issues in support of his request, the docket clearly reveals Plaintiff’s
ability to litigate this case on his own. I conclude that he is capable of answering
questions in his deposition without the aid of counsel. While Plaintiff wants to
view the videotape prior to any deposition, Defendants state that they have sent a
DVD to the facility Plaintiff was confined in when he filed this motion depicting
the incident, and that in any event, viewing the DVD prior to his deposition is not
essential. Most importantly, the deposition of Plaintiff has since been conducted.
As such, the motion in addition to being without merit, is also moot.
C.
Discovery
Rule 26(b)(1) of the Federal Rules of Civil Procedure defines both the scope
and limitations governing the use of discovery in a federal civil action:
14
(1) Scope in General. Unless otherwise limited by court
order, 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 controversy, 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.14
Fed. R. Civ. P. 37 addresses the matter of failure to make disclosures or to
cooperate in discovery and the possibility of sanctions. Specifically, if a party
served with discovery fails to respond adequately, the serving party may file a
motion to compel under Rule 37(a). Issues relating to the scope of discovery
permitted under the Rules rest in the sound discretion of the court.15 A court’s
decisions regarding the conduct of discovery will be disturbed only upon a
showing of an abuse of discretion.16 This discretion is guided, however, by certain
basic principles. One crucial component of the court’s discretion is that the court
must set schedules for the completion of discovery. When a party fails to abide by
those schedules the court has the right, and the duty, to impose sanctions for that
14
Fed. R. Civ. P. 26(b)(1).
15
Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 90 (3d Cir. 1987).
16
Marroquin-Manriquez v. I.N.S., 699 F.2d 129, 134 (3d Cir. 1983).
15
failure. Those sanctions may, in the discretion of the court, include declining a
party’s request to compel compliance with untimely and improper discovery
demands. As such, where a party has submitted an untimely request, the court can,
and in the exercise of its discretion often should, refuse to compel compliance with
that request.17 These benchmark standards will now be applied to Pew’s pending
motions to compel discovery.
In the first motion to compel filed by Plaintiff, he seeks the production of
digital photos taken at SCI-Smithfield on August 9, 2011 because he states that the
black and white photos he was given are of poor quality. September 26, 2016,
ECF No. 143. He also seeks the production of digital photos allegedly taken by
Daniel Zaremba, a Registered Nurse at SCI-Frackville, on February 29, 2012.
Plaintiff claims that said photos show the injuries he still has from the restraint
chair incident on August 9, 2011. In addition, Plaintiff seeks Sections 32 and 33 of
the DOC’s Procedures Manual 6.3.1.
17
See, e.g., Maslanka v. Johnson & Johnson, 305 F. App’s 991 (3d Cir.
2008)(affirming denial of pro se litigant motion to compel where discovery
demands were untimely); Oriakhi v. United States, 165 F. App’s 991 (3d
Cir.2006)(same); Bull v. United States, 143 F. App’s 468 (3d Cir. 2005)(same).
16
Defendants have provided Plaintiff with the black and white photos of
Plaintiff in the restraint chair. They have also provided Plaintiff with a videotape
of the incident taken from a handheld camera. Plaintiff complains that the black
and white photos are of poor quality. To the extent color photos exist, Defendants
are to provide them. If they do not exist, then clearly they cannot provide them.
The same is true with respect to any photos taken by Daniel Zaremba at SCIFrackville. If photos exist, they are to produce them.
The Court agrees that the sections Plaintiff demands of the DOC’s
Procedures Manual are privileged and pose a security risk if released. Plaintiff can
obtain the relevant information he seeks from other sources which are public and
are not confidential, and will be required to do so. Plaintiff can get information
with respect to the use of the restraint chair from Section 3 of 13.2.1 Procedures
Manual which is public. Moreover, DOC DC-ADM 201 addresses the use of
force. It is not confidential and refers to the use of restraints.
In the next motion to compel, Plaintiff challenges his failure to receive
instructions, usage, safety instructions and serial numbers for the restraint chairs at
SCI-Smithfield; all sets of the colored digital photos taken of him in the restraint
chair on the date in question and in February of 2012 at SCI-Frackville by Daniel
Zaremba; copies of Misconducts #B250271 and the related DC-709 and #B768039
17
and the related DC-709; and any ICAR notes related to the smearing of any feces
in the cell by Plaintiff. November 30, 2016, ECF No. 160. Plaintiff has also filed
motions claiming that he was not given enough time to review his medical records
and make copies, November 30, 2016, ECF No. 163, and that he did seek 82 pages
of copies and is willing to pay, but was transferred to avoid providing him with the
discovery and allowing him to pay for it. December 1, 2016, ECF No. 165.
Defendants state that they have provided Plaintiff with all the relevant
information and that he has reviewed and copied extraordinary incident reports,
employee incident reports and misconduct reports. He has also been allowed to
review his medical records and photographs taken of him on the date he was in the
restraint chair, the videotape of him being placed in the chair, and the exercises
while in the chair. While this might be true, Plaintiff states that he was in restraints
when he was permitted to review the documents and was only provided one (1)
hour to review volumes of material. It is also unclear as to what Plaintiff has been
permitted to copy, if anything. As such, Plaintiff is to provide a status report to the
Court within thirty (30) days as to what records he has been permitted to review,
but not able to copy. He is further to advise the Court as to what misconduct
reports he desires and does not have. After receipt of Plaintiff’s report, the Court
will issue an Order, if necessary, allowing him adequate time to review and have
18
copied the documents he has been provided.
Defendants state that no photos taken by RN Zaremba at SCI-Frackville six
(6) months later have been located. If any such photos are located, Defendants
state they will provide them to Plaintiff. This is certainly a sufficient response.
With respect to the restraint chair, Defendants state that they have supplied
Plaintiff with information pertaining to the chair used in his case, as well as photos
of the chair. They further state that they will supply Plaintiff with the last known
name and address of the manufacturer of the chair used, if such can be determined.
The Court finds that any information with respect to any chair not used in the
instant case is irrelevant. Defendants are to provide Plaintiff with all known
information regarding the chair used in Plaintiff’s case within thirty (30) days, if
they have not already done so. This information is to include the serial number of
the chair used, and any instructions, safety instructions and warnings that came
from the manufacturer with respect to the chair used.
Plaintiff also appears to seek copies of the notes made by the counselor.
The Court agrees with Defendants that any such notes are privileged and to release
them to Plaintiff would stifle the free flow of information from the inmate to the
counselor if the inmate knew the records could later be released. As such, any
request for these records will be denied.
19
In another motion to compel filed by Plaintiff the following day, he again
complains that he was not afforded an adequate amount of time to review medical
documents provided by Defendants and was not given the opportunity to copy the
documents. He specifically refers to 13.2.6 of the Access to Heath Care
Procedures Manual Section 10 which addresses medical orders for special items.
He refers to DC-443 receipts for a back brace and a scrotal support which he
claims were provided to him at SCI-Rockview prior to the time he was placed in
the restraint chair, as well as cortisone injection medications. Plaintiff also
references x-ray records and recommendations made by Dr. Kunkle at SCIFrackville and SCI-Rockview that were made following his time in the restraint
chair. To the extent these documents were provided to Plaintiff at SCI-Greene for
his review, and he claims he was only given one (1) hour while in restraints to
review this material, and given no opportunity to copy at his own expense what he
desired, his motion will be granted to the following extent. The documents
previously provided will again be produced at Plaintiff’s current place of
confinement for his review. He will be afforded ample time to review the
documents and will be provided the opportunity to have copies made of any
20
documents he desires and is willing to pay for.18
Plaintiff also claims that Defendants are failing to provide various
information to other inmates including Steven Cook, Darrell Robinson and
William Cramer. Plaintiff states that these inmates were not kept in the restraint
chair for the period of eight (8) hours and believes that Defendants must provide
said inmates evidence of the time they each spent in the chair. Defendants will not
be directed to provide this information to the referenced inmates.
First, Plaintiff has no standing to seek discovery on behalf of inmates who
are not a party to this case. Second, to the extent any such information is relevant,
Plaintiff can obtain statements from said inmates with respect to their placement in
a restraint chair.
18
While Defendants maintain that Plaintiff is seeking free copies, Plaintiff
disputes this statement and expresses his willingness to pay for any copies he
desires. It is well-established that an indigent inmate is not entitled to have their
litigation expenses paid for by the Court or opposing party. See Tabron, 6 F.3d at
159-60. The Court does not believe that Plaintiff is seeking to have his discovery
supplied to him for free. In fact, Plaintiff submitted a subsequent filing that he
labeled as a motion to compel where he again seeks access at his current
institution, SCI-Houtzdale, to the documents the Defendants produced for his
review at SCI-Greene. December 22, 2016, ECF No. 169. He again states that
while at SCI-Greene he was only permitted to review the documents for one (1)
hour and he was in restraints the entire time. He also expresses his willingness to
pay for any copies he wants. As such, the motion filed on December 22, 2016 will
be granted to the extent that Defendants will be required to produce for Plaintiff’s
review the documents previously produced at SCI-Greene.
21
Plaintiff also seeks the full eight (8) hours of continuous camera footage
from the cage camera with respect to the incident alleged in the complaint. While
Plaintiff insists that this coverage exists, Defendants state that it has not been
determined if there actually is any video coverage from the overhead camera in the
strip cage on the date in question. While Plaintiff does not dispute being provided
the videotape from the handheld camera to review, to the extent there is any video
coverage from the cage camera, Defendants are to provide this within thirty (30)
days for Plaintiff’s review. If this coverage does not exist, Defendants are to so
advise the Court.
Plaintiff filed two motions to compel wherein he claims that Defendants
refuse to answer second sets of interrogatories served upon them and a 4th request
for the production of documents. December 22, 2016, ECF Nos. 168, 169.
Defendants challenge these discovery requests on the basis that they were not postmarked until November 28, 2016. Plaintiff states that if it was not for the transfers
he was subjected to by the Department of Corrections from SCI-Greene to SCIDallas to SCI-Houtzdale, that the discovery requests would have been sent sooner.
He claims that when he was transferred, he was also isolated from his legal
property.
22
Plaintiff also claims that because the requests were sent on November 28,
2016, they were timely pursuant to Court’s scheduling Order. As relief, Plaintiff
seeks that the Defendants be compelled to respond to his discovery requests and
that the discovery period be re-opened due to the time he lost when transferred and
separated from his property.
The Court will not grant Plaintiff the relief he has requested for the
following reasons. First, the scheduling Order issued by the Court on August 25,
2016 directed that all discovery be completed by the parties on or before
November 28, 2016. August 25, 2016, ECF No. 131. As such, Defendants will
not be directed to respond to said discovery requests. Moreover, the docket reveals
that Plaintiff could have submitted his discovery requests to Defendants earlier.
He was clearly able to file motions with the Court in the above matter. Further,
there is no reason why Plaintiff could not have filed a motion seeking to enlarge
the discovery period if he felt the need to do so.
Recently filed was a motion by Plaintiff labeled as an “Open Letter Motion
to the Court to be construed as having a Brief in Support.” March 29, 2017, ECF
No. 174. In this filing, Plaintiff states that he received a letter from defense
counsel stating that counsel would allow Plaintiff to review the DC-440 forms, in
addition to the records he reviewed at SCI-Greene. It appears, from Plaintiff’s
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filing, that although the records may have been produced, the DC-440 forms were
not included. It is unclear to the Court, at this point, what records have been
promised to Plaintiff, but are still outstanding. In light of this, and in an effort to
move this case to the point of the filing of dispositive motions, the parties will be
directed to submit discovery status reports to the Court within the next thirty (30)
days. Included in this report is the information previously stated by the Court.
While Plaintiff also seeks the color photographs taken and a medical incident
report made by Daniel Zaremba at SCI-Frackville in February of 2012, it does not
appear that these items exist. If they do, Defendants shall so notify the Court in
their discovery status report.
D.
Miscellaneous Letters/Motions
Plaintiff has filed several letter/motions to the Court wherein he seeks relief
against individuals not named as defendants in this action and/or with respect to
claims that are not currently pending before the Court. For instance, Plaintiff seeks
relief against Sergeant Bach and other correctional officers at SCI-Dallas with
respect to the confiscation and destruction of his legal property that was sent from
SCI-Greene to SCI-Dallas. November 1, 2016, ECF. No. 153. In another
document, Plaintiff seeks Court intervention with respect to activities occurring at
SCI-Dallas regarding the confiscation of his grievances and PREA complaints
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which he claims were given to Sergeant Bach and another unidentified correctional
officer. November 9, 2016, ECF No. 156. In yet another document, Plaintiff seeks
emergency relief stating that he is now at SCI-Houtzdale and is in danger because
the guards there have placed him in an unclean torture cell and refuse to give him
medical care. November 21, 2016, ECF No. 157. All of these motions will be
denied in that they seek relief against new Defendants with respect to new claims
at different prisons. These claims must be raised in new actions. Plaintiff cannot
simply tack them on to the existing case and then write to the Court every time he
encounters a problem.
III.
CONCLUSION
Accordingly, for all of the foregoing reasons, a separate Order will issue
denying all requests by Plaintiff for counsel, reconsideration, injunctive relief and
for telephonic conferences and Court intervention. The motions to compel will
only be granted to the extent set forth above. The motions will be denied in all
other respects.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
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