Goss v. Stirling et al

Filing 289

ORDER denying Plaintiff's 278 Third Motion to Compel. Signed by Magistrate Judge Shiva V. Hodges on 3/30/2021. (lbak)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Darrell L. Goss,
Plaintiff,
vs.
Richard Cothran,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

C/A No.: 1:18-2124-BHH-SVH

ORDER

Darrell L. Goss (“Plaintiff”), proceeding pro se and in forma pauperis,
brings this action pursuant to 42 U.S.C. § 1983 alleging violation of his
Eighth Amendment rights against Richard Cothran (“Defendant”), Warden of
Turbeville Correctional Institution (“TCI”), in his individual capacity, for
failure to protect Plaintiff from inmate assaults and the threat of inmate
assaults due to increased gang violence. All pretrial proceedings in this case
were referred to the undersigned pursuant to the provisions of 28 U.S.C. §
636(b) and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.).
This matter comes before the court on Plaintiff’s third motion to
compel. [ECF No. 278]. 1 In this motion, Plaintiff represents he submitted to
Defendant, on October 12, 2020, a second request for production of documents
(“SRFP”) that, in part, requested production of personnel files of certain
Plaintiff’s motion to supplement and for preliminary injunction is also
before the court, but not yet ripe. [See ECF No. 279].
1

correction officers, and Defendant has failed to produce any documents in
response. See id. 2
In response, Defendant represents that Plaintiff requested information
concerning certain corrections officers in his interrogatories, and Defendant
did not object to these interrogatories, but “Plaintiff did not provide
Defendant with any request for production of any Correctional Officers’
Personnel files.” [ECF No. 280]. Further, “Defendant contends he has
provided Plaintiff Goss with the information he has requested.” Id.
In reply, Plaintiff does not directly address Plaintiff’s response, but
appears to argue that Defendant had previously represented he would
produce documents in response to Plaintiff’s SRFP and is estopped from
contending otherwise now. [ECF No. 288].
As relevant to the resolution of the instant motion, limited discovery
was reopened in this case on September 29, 2020. [See ECF No. 235 (“The
parties are allowed . . . to conduct limited, additional discovery solely
concerning Plaintiff's Eighth Amendment claim against Defendant Cothran
in his individual capacity.”)]. Thereafter, in response to the court’s direction,
Although Plaintiff has previously represented to the court that he submitted
a SRFP to Defendant, he did identify what documents were requested. [See
ECF Nos. 261 (“Because of the burden of having to rewrite his own legal
documents by hand in order for him to retain a copy for himself . . . Plaintiff
[does] not have a copy of his 2nd Requests for Production . . . but he fully
remembers that he sent it to defense counsel and that his requests were
related to his interrogatory questions”); see also ECF Nos. 253, 263].
2

2

Defendant produced a copy of Plaintiff’s outstanding discovery requests and
objections to those requests, to which Plaintiff replied. [ECF Nos. 247, 249,
250, 254; see also ECF Nos. 253, 261, 263].
In these filings, Plaintiff argued that Defendant failed to submit to the
court his SRFP, requesting the court to compel Defendant to produce
responsive documents. [ECF No. 253]. In response, Defendant did not directly
address Plaintiff’s argument, stating instead as follows:
In accordance with this Court’s Text Order (ECF No. 250) the
Defendant will mail a finalized copy of all Discovery responses
and production to the Plaintiff once the Court has determined the
documents relevant to the Plaintiff’s Argument and ordered
Defendant to produce same. For these reasons, Defendant asks
that Plaintiff’s second Motion to Compel be found moot in
accordance with Text Order (ECF No. 250).
[ECF No. 258]. Plaintiff additionally filed a motion for sanctions for
Defendant’s failure to produce or respond to Plaintiff’s SRFP, indicating that
Defendant had submitted to the court at least one question from the SRFP,
not concerning the personnel files of corrections officers, but not otherwise
informing the court what the SRFP requested. [ECF No. 263].
The court denied Plaintiff’s motion for sanctions and denied as moot his
motion to compel regarding the SRFP, and addressed the discovery requests
Plaintiff had submitted to Defendant that were produced to the court,
directing Defendant to produce, consistent with the court’s order, responses
to those discovery requests. [See ECF No. 264].
3

Now, for the first time, Plaintiff informs the court that his SRFP
included requests for production of personnel files of corrections officer. [See
ECF No. 278 at 2 (Plaintiff stating his SRFP included requests for “any and
all records of [specific] correctional officer[s] . . . surrounding [their]
termination and/or resignation from SCDC,” stating these officers are
eyewitnesses to this case)]. In response, Defendant still does not state clearly
he did not receive Plaintiff’s SRFP, but does state “Plaintiff did not provide
Defendant with any request for production of any Correctional Officer’s
Personnel files.” [ECF No. 280].
Here, Plaintiff states he asked for certain discovery in his SRFP and
submitted those requests to Defendant. Defendant states he did not. There is
no indication in the record currently before the court, beyond the
representations made by the parties, that Plaintiff requested, or did not
request, the discovery he represents he did.
Additionally, neither party address whether the requested documents
fall within the limited discovery presently allowed in this case, beyond
Plaintiff’s representation that “these records are relevant to his case to
support his theory that he was being extorted by the G’s gang to smuggle
contraband into Turbeville prison via the same former correctional officers
mentioned above,” except one of the officers, who Plaintiff represents was
having an “inappropriate inmate-staff relationship.” [ECF No. 278 at 2].
4

There is insufficient information before the court to grant Plaintiff’s
third motion to compel; therefore, the court is constrained to deny the motion.
Although “[t]he party opposing a motion to compel bears the burden of
showing why it should not be granted,” Beazer Homes Corp. v. Hartford Fire

Ins. Co., C/A No. 4:10-2419-RBH-TER, 2012 WL 6210323, at *4 (D.S.C. Dec.
13, 2012), the party seeking discovery has to show the court that the relevant
discovery was served and what was sought. See Fed. R. Civ. P. 37(a)(3)(B).
Here, there is no evidence or indication on the record before the court that
the SRFP was served on Defendant or contained requests for the personnel
files of certain corrections officers.
Accordingly, Plaintiff’s third motion to compel is DENIED. [ECF No.
278].
IT IS SO ORDERED.

March 30, 2021
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

5