GIBSON v. FLEMMING et al
Filing
153
MEMORANDUM OPINION & ORDER entered on plaintiff's 151 Appeal to District Court of Magistrate Judge 147 Order on Motion for Reconsideration finding that the Magistrate Judge's ruling was clearly not erroneous or contrary to the law. Therefore, plaintiff's appeal is DENIED. Signed by Judge David S. Cercone on 3/27/19. (njt)
IN THE UNITED ST ATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DERRICK GIBSON,
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Plaintiff,
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2:16cv392
Electronic Filing
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V.
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MARY FLEMMING, et al.,
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Defendants.
Judge David Stewart Cercone
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MEMORANDUM OPINION AND ORDER
Before the Court is an appeal (ECF No. 151) filed by Plaintiff Derrick Gibson requesting
review of the magistrate judge's Order dated February 15, 2019 (ECF No. 147) (the "Order"), which
denied as moot Plaintiffs motion for reconsideration of a discovery ruling.
Upon review of the matters raised by Plaintiff, the Court concludes that the Order appealed
from is neither clearly erroneous nor an abuse of discretion. Therefore, Plaintiffs appeal will be
dismissed.
Standard of Review
The Federal Magistrates Act, 28 U.S.C. §§ 631-639, provides two separate standards for
judicial review of a magistrate judge's decision: (i) "de novo" for magistrate resolution of dispositive
matt;!rs, 28 U.S.C. § 636(b)(l)(B)-(C), and (ii) "clearly erroneous or contrary to law" for magistrate
resolution ofnondispositive matters. 28 U.S.C. § 636(b)(l)(A). Accord FED. R. Civ. P. 72(a), (b);
Locd Civil Rule 72.l(C)(2); see Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1113 (3d Cir.
198{,).
In this case, the Order of February 15, 2019, is nondispositive because it addresses a
discovery dispute and "[i]t is well-established that a magistrate judge's ruling concerning discovery
is ncn-dispositive." V Mane Fils SA. v. Int 'l Flavors & Fragrances, Inc., Civil No. 06-2304, 2011
WL 1344193, at *4 (D.N.J. Apr. 8, 2011). Accordingly, the Order will not be disturbed unless it is
founj to be clearly erroneous or contrary to law. A finding is clearly erroneous "when although there
is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed." Anderson v. City of Bessemer City, NC, 470 U.S.
564,573 (1985) (citing United States v. United States Gypsum Co., 333 U.S. 364 (1948)). This
standard is difficult and becomes even more difficult when the appeal involves a discovery decision.
"Th~re is particularly broad deference given to a magistrate judge's discovery rulings." Farmers &
Merchants Nat. Bankv. San Clemente Financial Group Securities, Inc., 174 F.R.D. 572,585 (D.N.J.
199'i). A magistrate judge's discovery ruling "is reversible only for abuse of discretion." Kresejky v.
Panasonic Communications & Systems Co., 169 F.R.D. 54, 64 (D.N.J. 1996). The deferential
standard is particularly appropriate in the case where the magistrate judge has managed the case from
the cutset and developed a thorough knowledge of the proceedings. Cooper Hosp./Univ. Med. Ctr.
v. &llivan, 183 F.R.D. 119, 127 (D.N.J. 1998).
Discussion
Plaintiff argues that the magistrate judge erred when she denied his motion for
reco 1sideration of a discovery ruling. In the ruling, the magistrate judge explained that the court had
previously ruled that Defendants had fulfilled their discovery obligations and that Plaintiff had been
give 1 multiple chances to view the requested videos.
At issue in this appeal is Plaintiffs request to view two videos: (i) a video of an incident
which occurred at SCI-Greene on 9/4/14 between "19:00- 19:31 hrs;" and (ii) a video of an incident
which at SCI-Fayette on 1/21/16 from 11 :00 to 2:55." Appeal at 1.
As to Plaintiffs first request, the record reflects that Defendants have represented to the
Coui and to Plaintiff on more than one occasion that there is no video depicting the time period of
approximately "19:00 - 19:31 hours" on 9/4/14. There is video depicting the time period of
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appr,)ximately 19:30 - 21 :30 hours on 9/4/14, and Plaintiff has actually viewed these videos.
Defendants cannot be compelled to produce evidence which does not exist.
As to Plaintiff's second request, the record reflects that since August of 2018 Defendants
have afforded Plaintiff multiple opportunities to view the videos from 1/21/16, and Plaintiff
repeatedly has either failed to cooperate, declined the opportunity to view the videos, or was noncompliant, self-injurious and/or assaultive, which prevented him from viewing the videos.
Defendants have provided reasonable means for Plaintiff to view the videos and solely because of
Plaintiff's own behavior, he has not been able to do so.
The Court finds that the decision of the magistrate judge to deny Plaintiff's motion for
reconsideration of a discovery ruling was proper. Defendants have complied with their duty to make
the videos available and given Plaintiff's choice not to view these videos, the Court finds that
Plaintiff has no credible foundation upon which to appeal the magistrate judge's ruling.
For all these reasons, the Court finds that Plaintiff has not shown that the magistrate judge's
ruling was clearly erroneous or contrary to law. Accordingly, Plaintiff's appeal is DENIED.
~
It is so ORDERED on this the J1 day of March, 2019.
David Stewart Cercone
Senior United States District Judge
cc:
Derrick Gibson
JP 2190
SCI Retreat
660 State Route 11
Hunlock Creek, PA 18621-3136
(Via First Class Mail)
J. Eric Barchiesi, Esquire
Timothy Mazzocca, Esquire
(Via CMIECF Electronic Mail)
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