Samples v. Tamarchio et al

Filing 61

ORDER denying 34 Motion to Compel; denying 37 Motion to Intervene; denying 38 Motion for Access to Law Library; denying 50 Motion for Extension of Time to Complete Discovery. Plaintiff is to file a response to Defendants' motion for summary judgment by November 21, 2013. Signed by Magistrate Judge Shiva V Hodges on 11/7/2013.(abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Forrest Kelly Samples,
Plaintiff,
vs.
Benjamin F. Lewis, Jr.; Amy R. Enloe;
Mathew L. Harper; Katherine Watson
Burgess; Daniel Cotter; Larry
Cartledge; Kay Humphries; and John
Tamarchio,
Defendants.

I.

)
)
)
)
)
)
)
)
)
)
)
)
)
)

C/A No.: 1:13-657-MGL-SVH

Plainti

ORDER

Background
Plaintiff Forrest Kelly Samples is a pro se prisoner incarcerated at Perry

Correctional Institution (“PCI”) who filed a complaint pursuant 42 U.S.C. § 1983
alleging Benjamin F. Lewis, Jr., Amy R. Enloe, Mathew L. Harper, Katherine Watson
Burgess, Daniel Cotter, Larry Cartledge, Kay Humphries, and John Tamarchio
(“Defendants”) were deliberately indifferent to his serious medical needs. This matter
comes before the court on the following motions: (1) Plaintiff’s motion to compel [Entry
#34]; (2) Plaintiff’s motion to intervene [Entry #37]; (3) Plaintiff’s motion for access to
the law library [Entry #38]; and (4) Plaintiff’s motion for an extension of time to
complete discovery [Entry #50]. All pretrial proceedings in this case were referred to the
undersigned pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule
73.02(B)(2)(d) (D.S.C.).

II.

Discussion
A.

Analysis
1.

Plaintiff’s motion to compel

In his motion to compel filed June 5, 2013, Plaintiff seeks responses to requests
for production he alleges he issued on April 29, 2013. In their response to the motion,
Defendants indicate counsel served discovery responses on Plaintiff on May 31, 2013.
Plaintiff did not file a reply brief. Therefore, Plaintiff’s motion to compel [Entry #34] is
denied as moot.
2.

Plaintiff’s motion to intervene

In his motion to intervene, Plaintiff requests to be transferred from PCI, as he
believes PCI correctional officers are not providing him legal materials in retaliation for
his filing the instant lawsuit. Plaintiff has previously requested a transfer [Entry #3], and
his request was denied on October 22, 2013 [Entry #55]. Plaintiff has provided no
evidence of retaliation beyond his vague allegations and has failed to show he is entitled
to a transfer. Plaintiff’s motion to intervene [Entry #37] is therefore denied.
3.

Plaintiff’s motion for access to the law library

In his motion for access to the law library, Plaintiff alleges he is not receiving
access to the law library in accordance with SCDC policy. In their response, Defendants
indicated that Plaintiff is in the Special Management Unit (“SMU”) and is not allowed to
physically go to the law library, but materials are brought to him by a designated
individual. [Entry #41]. Defendants further asserted the following:

2

Defendants maintain that Plaintiff has been provided access to legal
materials. Inmates housed in SMU are allowed to obtain three items from
the law library twice per week. Defendants are not involved with providing
legal materials to inmates in SMU, but understand that Plaintiff has
received items on a regular basis. Defendants would note that there may
have been occasions where the Officer who provides SMU inmates with
legal supplies has been out of the Institution and materials were not
delivered, but Plaintiff again has received legal materials on a regular basis.
Id. Plaintiff did not file a reply brief. Therefore, Plaintiff’s motion to be allowed access to
the law library [Entry #38] is denied.
4.

Plaintiff’s motion for an extension of time to complete discovery

Plaintiff requests additional time to complete discovery in order to give
Defendants additional time to supplement their responses to his requests for production.
Specifically, Plaintiff states that the policies Defendants produced are not current.
Defendants’ response brief indicates that Plaintiff was provided with the current policies
in effect, but that the issue date on some of the policies may be from years ago. [Entry
#51]. Plaintiff did not file a reply. Therefore, Plaintiff’s motion to extend the time for
discovery [Entry #50] is denied as moot.
B.

Defendants’ Motion for Summary Judgment

Defendants filed a motion for summary judgment on July 30, 2013. [Entry #47].
As Plaintiff is proceeding pro se, the court entered an order pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975) on July 31, 2013, advising him of the importance
of the motion for summary judgment and of the need for him to file an adequate
response. [Entry #48]. Plaintiff was specifically advised that if he failed to respond
adequately, Defendants’ motion may be granted. Notwithstanding the specific warning

3

and instructions set forth in the court’s Roseboro order, Plaintiff has failed to respond to
the motion. On October 15, 2013, the court ordered Plaintiff to advise whether he wished
to continue with the case by October 29, 2013. [Entry #43]. On October 30, 2013, the
court received Plaintiff’s response to the October 15, 2013 order. [Entry #59]. Plaintiff
argues that he has inadequate paper and envelopes to respond to Defendants’ motion,
although he was able to borrow paper and an envelope to respond to the court. Id.
The court takes judicial notice that SCDC policy provides that indigent inmates
receive an allotment of envelopes and paper each month. See Edmond v. Ozmint, C/A
1:08-3288-GRA-SVH, 2010 WL 3399157 (D.S.C. July 26, 2010).1 Defendants filed their
motion for summary judgment over three months ago. Plaintiff is instructed to respond
to Defendants’ motion for summary judgment by November 21, 2013. Plaintiff is further
advised that no further extensions will be granted.
III.

Conclusion
For the foregoing reasons, the following motions are denied: (1) Plaintiff’s motion

to compel [Entry #34]; (2) Plaintiff’s motion to intervene [Entry #37]; (3) Plaintiff’s
motion for access to the law library [Entry #38]; (4) Plaintiff’s motion for an extension of
time to complete discovery [Entry #50]. In addition, Plaintiff is to file a response to
Defendants’ motion for summary judgment by November 21, 2013.

1

A district court may take judicial notice of materials in the court’s own files from prior
proceedings. See United States v. Parker, 956 F.2d 169, 171 (8th Cir. 1992); Fletcher v.
Bryan, 175 F.2d 716 (4th Cir. 1949).
4

IT IS SO ORDERED.

November 7, 2013
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

5