McFadden v. Bittinger et al

Filing 53

ORDER dismissing as moot 42 Motion to Compel; granting in part and denying in part 46 Motion to Compel; denying 50 Motion to Compel; granting in part and denying in part 36 Motion to Compel. Further details set forth i n Order. To the extent that Plaintiff's motions have been granted, Defendants are directed to file the at-issue discovery responses--and serve a copy of those responses upon Plaintiff--within ten (10) days of the date of this Order. Signed by Magistrate Judge Mary Gordon Baker on 11/18/2016.(arog, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Bernard McFadden,
Plaintiff,
v.
Edward Bittinger, Captain and/or
Disciplinary Hearing Officer at Kershaw
CI, and Tony Smith, Captain of Kershaw
CI, in their individual or personal
capacities,
Defendants.

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C/A No. 2:15-cv-02507-JMC-MGB
ORDER

The Plaintiff, a prisoner proceeding pro se, seeks relief pursuant to Title 42, United States
Code, Section 1983. This matter is before the Court upon four Motions to Compel filed by the
Plaintiff. (Dkt. No. 36; Dkt. No. 42; Dkt. No. 46; Dkt. No. 50.) For the reasons set forth herein,
Plaintiff’s First Motion to Compel (Dkt. No. 36) and Third Motion to Compel (Dkt. No. 46) are
granted in part and denied in part; Plaintiff’s Second Motion to Compel (Dkt. No. 42) is dismissed
as moot; and Plaintiff’s Fourth Motion to Compel (Dkt. No. 50) is denied.
Rule 37 of the Federal Rules of Civil Procedure provides that if a party fails to respond to
discovery, the party seeking discovery may move for an order compelling production. The decision
to grant or to deny a motion to compel discovery rests within the broad discretion of the trial court.
See Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922, 929 (4th Cir. 1995)
(“This Court affords a district court substantial discretion in managing discovery and reviews the
denial or granting of a motion to compel discovery for abuse of discretion.”) (citations omitted);
LaRouche v. Nat’l Broad. Co., 780 F.2d 1134, 1139 (4th Cir. 1986) (“A motion to compel discovery
is addressed to the sound discretion of the district court.” (citation omitted)).

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Before turning to a discussion of each individual motion, the undersigned will briefly review
Plaintiff’s allegations. Plaintiff alleges that Defendants violated his First Amendment rights “via
retaliation for exercising his right of access to court, reasonably causing a chilling effect when
instituting disciplinary charges and denying him privileges.” (Dkt. No. 1 at 3 of 6.) Plaintiff alleges
that in March of 2014, after he requested copies, “one law library officer Nathan Branham charged
[Plaintiff] with abuse of privileges.” (Id.) Plaintiff asserts he has filed many grievances and lawsuits
and that “many inmates and staff of Kershaw are/were aware of Plaintiff’s legal activities prior to
Officer Branham’s filing charges of abuse of privileges against Plaintiff.” (Id.) Plaintiff alleges that
Defendants Smith and Bittenger were involved in the disciplinary process on that charge and denied
him visitation, canteen, and use of the phone for 90 days. (Id. at 3-4 of 6.) Plaintiff contends that “the
sole intentions Mr. Smith and Mr. Bittinger had when ordering” these sanctions against Plaintiff was
“to cause a chilling effect or otherwise to prevent him from requesting copies in a timely manner that
would have allowed him to file additional discovery in light of a court-ordered deadline” in a
different federal case. (Id. at 4 of 6.)
In addition to his claim that Defendants violated his First Amendment rights, Plaintiff alleges
that prior to his disciplinary hearing in March of 2014, Defendant Smith “informally resolved two
white inmates Norman Olson, #163378, and his former roommate Dennis Brown with extra duty for
more serious charges of possession of contraband,” while “offering Plaintiff (20) days of good time
with (10) days loss of privileges for less severe charges of abuse of process.” (Id.) Plaintiff contends
that he, as a black inmate, was punished more severely than white inmates whose charges were more
serious than Plaintiff’s charges. (Id. at 4-5 of 6.)
A.

First Motion to Compel (Dkt. No. 36)
In his First Motion to Compel, Plaintiff complains about nearly all of the Defendants’

Responses “to Plaintiff’s Discovery Styled as ‘Requests for Production, and Upon Inspection,
Requests for Interrogatories and Admissions with Declaration in Support.’” (See Dkt. No. 36; Dkt.

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No. 36-1.) Defendants filed a Response in Opposition to Plaintiff’s First Motion to Compel. (See Dkt.
No. 38.)
In his “Argument #1,” Plaintiff complains that, contrary to Defendants’ assertions, he has not
received the documents Bates Labeled SCDC 1 through SCDC 103. (See Dkt. No. 36 at 1 of 8; see
also Dkt. No. 36-1.) The undersigned has no way to verify whether or not Plaintiff did, in fact,
receive such documents. Accordingly, Defendants shall file documents Bates Labeled SCDC 1
through SCDC 103 with the Court, and they shall send another copy of these documents to Plaintiff.
In “Argument #3,” Plaintiff complains about Defendants’ responses to his Request Numbers
7 and 8. (See Dkt. No. 36 at 2 of 8; Dkt. No. 36-1 at 5 of 14.) In their Responses, Defendants asserted
that it was “unclear what document(s) the Plaintiff is requesting.” (Dkt. No. 36-1 at 5 of 14.) In their
Response in Opposition to the Motion to Compel, Defendants note that these discovery requests
pertain to Warden Reynolds, who is not a party to this litigation. (Dkt. No. 38 at 5 of 9.) Defendants
are correct that Warden Reynolds is not a defendant in the case sub judice. (See generally Compl.)
In these discovery requests, Plaintiff appears to be asking for discovery related to the Warden’s
alleged “deliberate indifference” in “refus[ing] to discipline Defendants Smith and Bittinger.”
(See Dkt. No. 36-1 at 5 of 14.) Such requests are beyond the scope of discovery. As noted herein,
Warden Reynolds is not a defendant, and how she handled Plaintiff’s grievances concerning her
alleged lack of investigation of officers is not relevant to the case sub judice. See FED. R. CIV. P.
26(b)(1) (“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.”); see also Ashcroft v. Iqbal, 556 U.S. 662,
676 (2009) (“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that
each Government-official defendant, through the official’s own actions, has violated the
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Constitution.”) To the extent Plaintiff seeks documents above and beyond what is included within
Bates Labeled SCDC 1 through SCDC 103, Plaintiff’s motion is denied as to Requests 7 and 8.
Plaintiff asserts in “Argument #4" that Defendants “have not shown or explained how” the
at-issue requests are “overreaching, unduly burdensome, irrelevant, and of no probative value.” (Dkt.
No. 36 at 2 of 8.) Presumably the requests Plaintiff references in this argument are Request Numbers
9, 10, and 11. (See Dkt. No. 36-1 at 6-7 of 14.) Request Numbers 9 and 10, and the corresponding
responses, are as follows:
9. Produce, seal and deliver to the assigned judges in this case SCDC Form 19-106,
Informal Resolution Form dated 7/20/2015 by Defendant Smith for white inmate
Freddie Puckett, #358367 on a Level 3 Offense for Possession of Contraband,
Offense Code 817.
RESPONSE: Defendants object to this request as overreaching, unduly
burdensome, irrelevant, and of no probative value given the claims stated in
Plaintiff’s Complaint. Plaintiff’s request concerns a separate disciplinary
incident, removed in space and time from the events alleged in the Complaint,
and unrelated to any named Defendant in this litigation.
10. Produce, seal and deliver to the assigned judges on this case SCDC kiosk request
#15-833121 dated 9/30/15, Puckett admitting Smith gave a lighter sanction of canteen
restrictions and counseling for contraband and/or other charges to white inmate
Puckett, #358307.
RESPONSE: Defendants object to this request as overreaching, unduly
burdensome, irrelevant, and of no probative value given the claims stated in
Plaintiff’s Complaint. Plaintiff’s request concerns a separate disciplinary
incident, removed in space and time from the events alleged in the Complaint,
under a different Warden, and unrelated to any named Defendant in this
litigation.
(Dkt. No. 36-1 at 6 of 14.) Although Defendants note that Inmate Puckett is not a party to this lawsuit
and assert that he “is not referenced in the Plaintiff’s Complaint,” Defendants state that they “have
obtained certain documents with regards to Inmate Freddie Puckett and these documents are being
produced as a supplemental production to Plaintiff.” (Dkt. No. 38 at 5 of 9; see also Dkt. No. 38-6.)
Plaintiff has not asserted any problem with this supplementation. Accordingly, with respect to
Request 9 and 10, Plaintiff’s First Motion to Compel is denied. As to Request 11, Plaintiff’s motion

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is denied; the request pertains to how Warden Dunlap did or did not discipline Officer Smalls.
Neither Dunlap nor Smalls are defendants herein, and Request 11 is beyond the scope of discovery.
Plaintiff’s “Argument #4" also apparently relates to Requests 18, 19, and 20. (See Dkt. No.
36-1 at 9-12 of 14.) Those requests, and the corresponding responses, are as follows:
18. Produce, seal and deliver sworn affidavit or declaration under penalty of perjury
showing the ratio of black, white and Hispanic inmates housed in Sycamore and
Magnolia A and B, and Hickory C and D wings, to demonstrate that officials
generally have a custom or policy of discrimination in housing inmates disguised as
a program.
RESPONSE: Defendants object to this request. Under the Federal discovery
rules, Defendants are not obligated to create documents not otherwise in
existence for the purpose of responding to a party’s discovery requests, or to
perform Plaintiff’s own legal work for him. Defendants further object to the
request as overreaching, overly broad, unduly burdensome, and irrelevant.
Plaintiff alleges that the named Defendants in this suit were motivated by
matters of race or retaliation with regards to specific decisions made in relation
to the events of March 11, 2014. The Defendants in this case have no role in
making agency-wide decisions about inmate housing, and an affidavit as
requested by the Plaintiff would have no evidentiary value in proving Plaintiff’s
allegations in this case.
19. Produce, seal and deliver sworn affidavit o[r] declaration under penalty of perjury
showing the ratio of black, white and Hispanic [inmates] housed in Oak A, B and
Palmetto A and B wings to demonstrate officials generally have a custom or policy
of discrimination in housing inmates disguised as a program.
RESPONSE: Defendants object to this request. Under the Federal discovery
rules, Defendants are not obligated to create documents not otherwise in
existence for the purpose of responding to a party’s discovery requests, or to
perform Plaintiff’s own legal work for him. Defendants further object to the
request as overreaching, overly broad, unduly burdensome, and irrelevant.
Plaintiff alleges that the named Defendants in this suit were motivated by
matters of race or retaliation with regards to specific decisions made in relation
to the events of March 11, 2014. The Defendants in this case have no role in
making agency-wide decisions about inmate housing, and an affidavit such as
requested by the Plaintiff would have no evidentiary value in proving Plaintiff’s
allegations in this case.
20. Produce, seal and deliver sworn affidavit or declaration under penalty of perjury
showing the ratio of black, white and Hispanic inmates that work for Kershaw’s
maintenance crew to demonstrate that officials generally have a custom or policy of
discrimination in jobs for prisoners.

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RESPONSE: Defendants object to this request. Under the Federal discovery
rules, Defendants are not obligated to create documents not otherwise in
existence for the purpose of responding to a party’s discovery requests, or to
perform Plaintiff’s own legal work for him. Defendants further object to the
request as overreaching, overly broad, unduly burdensome, and irrelevant.
Plaintiff alleges that the named Defendants in this suit were motivated by
matters of race or retaliation with regards to specific decisions made in relation
to the events of March 11, 2014. The Defendants in this case have no role in
making agency-wide policy decisions about inmate work crews, and an affidavit
such as requested by the Plaintiff would have no evidentiary value in proving
Plaintiff’s allegations in this case.
(Dkt. No. 36-1 at 9-11 of 14.)
Plaintiff’s first Motion to Compel is denied with respect to Requests 18, 19, and 20. As
Defendants have argued, they are not required to create documentation for Plaintiff, nor is the
requested documentation relevant to Plaintiff’s claims against the Defendants in the case sub judice,
Defendants Edward Bittinger and Tony Smith. See FED. R. CIV. P. 26(b)(1).
Plaintiff’s “Argument #2" relates to his Request No. 15. (See Dkt. No. 36 at 1 of 8; see also
Dkt. No. 36-1 at 8 of 14.) Request No. 15, and the corresponding response, are as follows:
15. Produce, seal and deliver to the assigned judges in this case SCDC Forms 19-29A
and 19-69 (Officer Hooper’s Incident Reports and the related charges, if any,
documented on SCDC Forms 19-69 for Olson and Brown for contraband).
RESPONSE: Defendants are in the process of determining if the referenced
document(s) exists and if the Defendants have access to them. If so, they will be
produced to the Court. The inmate agrees not to receive these documents
directly for security reasons.
(Dkt. No. 36-1 at 8 of 14.)
While the undersigned agrees with Defendants that they have not waived their objections, it
is unclear to the undersigned whether documents responsive to Request 15 exist. Accordingly,
Defendants shall file a status report within 10 days of the date of this Order indicating whether such
documents exist; if they exist, such documents must be provided to the Court within that same tenday period. Plaintiff’s motion is granted with respect to Request 15.
In his “Argument #5,” Plaintiff complains about Defendants’ response to Request 16 and
Request 17. (Dkt. No. 36 at 4 of 8; see also Dkt. No. 36-1 at 8-9 of 14.) In Requests 16 and 17,
Plaintiff seeks production of transcribed copies of two disciplinary hearings. (Dkt. No. 36-1 at 8 of
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14.) Defendants’ responses indicate they are not in possession of a transcript as to Request 16. (Dkt.
No. 36-1 at 8 of 14.) To the extent Plaintiff asserts Defendants should be required to transcribe the
hearings, the undersigned disagrees. Defendants are not obligated to provide Plaintiff with a
transcript that they do not possess. As to Request 17, Defendants’ responses indicate the response
may be supplemented, as they “are in the process of determining if the referenced document exists
in any form.” (Dkt. No. 36-1 at 9 of 14.) It is unclear whether Defendants have supplemented their
response as to Request 17; accordingly, Plaintiff’s motion is granted as to that request. Plaintiff’s
motion is denied as to Request 16.
Plaintiff references his “Argument #4" and “Argument #6" with respect to his Requests 21
and 22. (See Dkt. No. 36-1 at 11 of 14; see also Dkt. No. 36 at 2-5 of 8.) Requests 21 and 22, and the
corresponding responses, are as follows:
21. Produce copy of page of log book for Magnolia B wing showing Officer Sanders
documented dirty barbercide on 12/22/2012 presented to her by white inmate Jack
Allen, #_____, after which McFadden was later removed from the barbershop; if
objected to on security grounds, produce seal and deliver to the assigned judges in
this case.
RESPONSE: Defendants object to this request as overreaching, unduly
burdensome, and irrelevant. Plaintiff has established no conceivable connection
between the above request and the allegations of his Complaint.
22. Produce copy of log book for Magnolia B wing showing Officer Young
documented an order from Mr. Adams on 12/28/2012 concerning McFadden and
Allen, instructions not to let Allen work in barber shop; if objected to on security
grounds, produce, seal and deliver to assigned judges.
RESPONSE: Defendants object to this request as overreaching, unduly
burdensome, and irrelevant. Plaintiff has established no conceivable connection
between the above request and the allegations of his Complaint.
(Dkt. No. 36-1 at 11 of 14.)
Plaintiff’s motion is denied with respect to Requests 21 and 22. The undersigned agrees with
Defendants that these requests have no relevance to the case sub judice. Plaintiff attempts to make
them relevant by asserting that the court “should consider . . . incidents of denied privileges as a
unit.” (Dkt. No. 36 at 4 of 8.) Respectfully, the undersigned disagrees. Plaintiff has sued two
individuals employed by the South Carolina Department of Corrections, and the documents at issue
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in Requests 21 and 22 do not pertain to these two individuals. (See generally Compl.) In a § 1983
action, “liability is personal, based upon each defendant’s own constitutional violations.” Trulock
v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001). Plaintiff’s motion is therefore denied with respect to
Requests 21 and 22.
Plaintiff references his “Argument #4" and “Argument #7" with respect to his Requests 23
and 24. (See Dkt. No. 36-1 at 12-13 of 14; see also Dkt. No. 36 at 2-6 of 8.) In Requests 23 and 24,
Plaintiff requests “kiosk reference #15-926777" and “kiosk reference 15-937100"; Plaintiff asserts
these documents “demonstrate Defendants’ motive for retaliation against Plaintiff for being very
litigious.” (Dkt. No. 36-1 at 12 of 14.) Defendants objected, asserting the requests were
“overreaching, unduly burdensome, and irrelevant.” (Id.) Defendants further contend that Plaintiff
“has established no conceivable connection between the above request and the allegations of his
Complaint” and that they “will stipulate that Plaintiff has filed many, many internal complaints, and
a number of legal actions.” (Id.) Plaintiff’s motion to compel is granted as to Requests 23 and 24.
Contrary to Defendants’ argument, Plaintiff alleged in his Complaint that he “has filed numerous
cases, grievances and requests voicing his complaints about missing recommended food items and
poor quality of foods used” by SCDC and that “many inmates and staff of Kershaw are/were aware
of Plaintiff’s legal activities” prior to the abuse of privileges charge being filed against him. (Compl.
at 3 of 6.) Plaintiff also alleged that Defendants denied him privileges “in an effort to harass and
retaliate against him” for his “legal activities.” (Id. at 3-4 of 6.) In the opinion of the undersigned,
the requested documents are within the scope of discovery, and Plaintiff’s motion is therefore granted
as to Requests 23 and 24.
B.

Second Motion to Compel (Dkt. No. 42)
In his Second Motion to Compel, Plaintiff states that on March 18, 2016, he mailed his “First

Requests for Interrogatories and Admissions with Declarations” to defense counsel, but Defendants
have not responded. (See Dkt. No. 42 at 1 of 3; see also Dkt. No. 42-1.) Based on subsequent filings
in this case, it is clear that Defendants served responses to the at-issue discovery requests on April
26, 2016. (See Dkt. No. 46-1.) Accordingly, Plaintiff’s Second Motion to Compel (Dkt. No. 42) is
dismissed as moot.
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C.

Third Motion to Compel (Dkt. No. 46)
Plaintiff’s Third Motion to Compel pertains to Defendants’ Responses to Plaintiff’s

Discovery Styled as “First Requests for Interrogatories and Admissions with Declarations.” (See
generally Dkt. No. 46.)
In his “Argument #1,” Plaintiff complains about Defendants’ response to Interrogatory
Number 2. That interrogatory, and corresponding response, are as follows:
2. Indicate whether Mrs. Michaw has access to McFadden’s SCDC form 19-11 dated
3/08/2014 with Branham’s 3/11/2014 disposition thereon that cites two cases at the
bottom left-hand side, McFadden vs. York, case #8:13-cv-2278-JMC-JDA and
McFadden vs. Fuller?
ANSWER:
Defendants are not aware of whether Officer Michaw has access to the
document referenced in this Interrogatory. Defendants are aware, however, that
the document referenced in this Interrogatory is among those that the
Defendants have proffered to Plaintiff pursuant to Defendant’s Responses to
Plaintiff’s Requests for Production, and that Plaintiff subsequently refused to
accept on at least two occasions.
(Dkt. No. 46-1 at 4-5 of 24.)
It is unclear to the undersigned why whether Officer Michaw has access to the specified
document is relevant to the case against Defendants Smith and Bittinger. Plaintiff asserts this
document “is relevant in that it disputes Branham and Defendants’ statement McFadden did not
timely request copies by hand-delivering the request on 03/14/2014; or otherwise, he did not follow
policies of the law library.” (Dkt. No. 46 at 1 of 7.) Plaintiff may be entitled to the production of this
document, but the Interrogatory is irrelevant. Defendants asserted they have “already produced a
similar or possibly identical document to Plaintiff among previous responses.” (Dkt. No. 48 at 3 of
6.) Defendants have already been ordered to file documents Bates Labeled SCDC 1 through SCDC
103 with the Court and to send another copy of these documents to the Plaintiff. If the document
referenced in Defendants’ response to Interrogatory Number 2 is not contained within those
documents, Defendants shall file it with the Court and mail a copy to the Plaintiff. Plaintiff’s motion
is granted with respect to Interrogatory Number 2.

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In his “Argument #2,” Plaintiff complains about Defendants’ response to Interrogatory
Number 8. That interrogatory, and corresponding response, are as follows:
8. According to SCDC from [sic] 19-106, inmate Freddie Puckett’s (#358367)
Informal Resolution form dated 7/20/2015, completed by Defendant Smith, indicate
the punishment Smith gave Puckett for a much [more] serious level 3 contraband
charge?
ANSWER:
The referenced documents were produced to Plaintiff by Defendants’
Supplemental Production of April 4, 2016. The document, if genuine, is the best
evidence of its own contents. Plaintiff’s Interrogatory erroneously presumes that
any Level 3 charge is a more serious offense than a Level 5 offense. As explained
in greater length in Defendants’ Answers to Interrogatory No. 12 below, SCDC’s
disciplinary policy generally classifies inmate offenses by placing them in a tiered
system. However, the policy provides an overlapping range of disciplinary
measures in order to provide flexibility and responsiveness to the individual
circumstances of each situation, and to respect the discretionary authority of the
responsible authority.
(Dkt. No. 46-1 at 7-8 of 24.)
Plaintiff essentially complains that he did not receive the at-issue document due to insufficient
postage. (Dkt. No. 46 at 2 of 7.) Production of this particular document has been addressed above as
Request 9 as to Plaintiff’s Discovery Styled as “Requests for Production, and Upon Inspection,
Requests for Interrogatories and Admissions with Declaration in Support.” Accordingly, there is
nothing more for this Court to address with respect to Interrogatory Number 8, and Plaintiff’s motion
is denied as to that interrogatory.
Plaintiff next takes issue with Defendants’ response to Interrogatory Number 9. That
interrogatory, and the corresponding response, are as follows:
9. According to Step One and Two Grievance # KRCI-1019-15, dated 09/03/2015,
alleging McFadden was also a dorm worker after lt. Smalls refused to allow
McFadden the privilege to use the canteen–like other dorm workers–indicate what
discipline Dunlap imposed on Smalls for refusing to allow dorm worker McFadden
to use the canteen?
ANSWER:
Defendants are not in possession of the referenced form. Per plaintiff’s own
statements about the document, neither Defendant is referenced therein. The
document, if genuine, is the best evidence of its own contents and presumably the
answer to the Plaintiff’s Interrogatory can be found therein.

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(Dkt. No. 46-1 at 8 of 24.) Plaintiff’s motion is denied with respect to Interrogatory Number 9.
Smalls is not a defendant in the instant case; neither is Dunlap.1 This discovery request falls outside
the scope of discovery.
As to Interrogatory Numbers 10 and 11, Plaintiff contends Defendants did not answer his
interrogatory. (See Dkt. No. 46 at 3 of 7; see also Dkt. No. 46-1 at 8-9 of 24.) The undersigned
disagrees–Defendants plainly and clearly answered the at-issue interrogatories. (Dkt. No. 46-1 at 8-9
of 24.) Defendants’ response indicates that administrative and informal resolutions are available for
Level 3 as well as Level 5 offenses. (Id.) Plaintiff’s motion is denied as to Interrogatory Number 10
and Interrogatory Number 11.
Plaintiff also claims deficiency with respect to Defendants’ answers to Interrogatory Numbers
14 and 15. These interrogatories, and corresponding responses, are as follows:
14. According to SCDC form 19-29 and 19-69 (Sgt./Ms. Hooper’s incident report and
related charges, if any), indicate the name of the charges and the level of the offenses
for those charges form Ms. Hooper on Dennis Brown and Normal Olson in March
2014.
ANSWER:
The Defendants are informed and believe that the information sought in this
Interrogatory is to be found on the referenced document itself, and the document
is the best evidence of its own contents. To the best of their knowledge, the
Defendants are not in possession of the documents identified above, as they do
not appear to be related to Plaintiff’s circumstances.
15. According to SCDC form 19-106 for Norman Olson and Dennis Brown dated
3/14/2014 (Informal and Administrative Resolution forms), indicate the punishment
that Smith gave Brown and Olson for their level 3 contraband offenses?
ANSWER:
Defendants have previously attempted to produce the referenced documents to
Plaintiff on several occasions, which Plaintiff has refused to accept. The
information sought in this Interrogatory is to be found on the referenced
documents themselves, and the documents are the best evidence of their own
contents.
(Dkt. No. 46-1 at 11 of 24.)
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Plaintiff asserts that “Defendants are part of a wide spread custom or policy of Kershaw prison practices that
also discriminate in jobs and housing assignments–not just discipline. . . .” (Dkt. No. 46 at 2 of 7.) Plaintiff’s Complaint,
however, is not based on alleged discrimination in jobs or housing assignments; his Complaint pertains to discipline. (See
generally Compl.)
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Smith is a Defendant in the case sub judice, and Interrogatory Number 15 appears to pertain
to the allegations of Plaintiff’s Complaint. (See generally Compl.) Moreover, while Ms. Hooper is
not a defendant herein, Interrogatory Number 14 appears related to the “punishment that Smith gave
Brown and Olson” referenced in Interrogatory Number 15. (Dkt. No. 46-1 at 11 of 24.) Accordingly,
these interrogatories appear to be within the scope of discovery. To the extent Defendants wish to
produce documents in responding to these interrogatories in lieu of answering the interrogatories,
they may do so. Defendants shall file the responsive documents with the Court, and they shall also
send a copy to the Plaintiff. Plaintiff’s motion is granted as to Interrogatory Numbers 14 and 15.
Interrogatory Number 18 is also at issue. That interrogatory, and the corresponding response,
are as follows:
18. According DVD or transcript of McFadden’s 02/11/2015 Disciplinary Hearing
before Defendant Bittinger, indicate whether Bittenger started [sic] McFadden should
have retreated and allowed or taken the beating from a psychotic inmate Rosl Gillard
while locked in a cell–contrary to State vs. Williams, 459 S.E.2d 519, 520 (S.C. App.
1995) (stating prisoner confined to cell has not [sic] duty to retreat before using force
to defend himself) (citation omitted)?
ANSWER:
Defendants object to this Interrogatory as irrelevant. The time frame referred
to herein (February 2015) occurs well after the events complained of in
Plaintiff’s Complaint and therefore, could have had no impact on Defendants’
conduct in March of 2014.
(Dkt. No. 46-1 at 13 of 24.)
Plaintiff contends Defendants should be required to answer this interrogatory because
“various incidents should be considered as a unit.” (Dkt. No. 46 at 4 of 7.) The undersigned
disagrees. Plaintiff’s Complaint is very specific–he alleges that in March of 2014, Defendants
punished him–a black male– more harshly than two white males, when the white inmates’ charges
were more severe than Plaintiff’s charges. (See generally Compl.) Interrogatory Number 18 pertains
to a different disciplinary hearing conducted almost a year after the hearing at issue. Plaintiff’s
motion is denied with respect to Interrogatory Number 18.
Plaintiff also complains about Defendants’ responses to Interrogatory Numbers 19, 20, and
22. (See Dkt. No. 46-1 at 13-15 of 24.) In these interrogatories, Plaintiff requests, inter alia, the ratio

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of black and white inmates in specified housing locations and the ratio of black and white inmates
assigned to various jobs within Kershaw Correctional Institution. (See id.) Plaintiff contends this
information is relevant because “statistical proof, together with other evidence, can prove
discriminatory intent and establish [a] prima facie case of race discrimination.” (Dkt. No. 46 at 4-5
of 7.) The undersigned disagrees. Plaintiff has sued two individuals employed by the South Carolina
Department of Corrections, and there are no allegations to suggest either of these two individuals
have any responsibilities related to housing and/or job assignments of inmates. The requested
information is outside the scope of discovery; Plaintiff’s motion is denied with respect to
Interrogatory Numbers 19, 20, and 22.
Plaintiff contends Defendants’ response to Interrogatory Number 21 is also inadequate. This
interrogatory, and the corresponding response, are as follows:
21. Because this incident should be considered as a unit or with other incidents to
demonstrate retaliation via denying privileges within the meaning of Russle vs.
Oliver, 552 F.2d 115 (Va. 4th Cir. 1997), indicate whether an incident is logged in
Magnolia-B-Side log book by Ofc./Mrs. Young indicating whether white
inmate/barber Jack Allen was not to be allowed back into the barber shop per Mr.
Adams, but McFadden was ordered from his assigned barber job and made to perform
more degrading tasks within the meaning of Dave vs. Rubenstein, 417 Fed. Appx.
317, 319 (W.Va. 4th Cir. 2011), logged on 12/28/2012?
ANSWER:
Defendants are not in possession of information relevant to this Interrogatory,
which did not involve either of the named Defendants and occurred well before
the matters complained of in the Complaint.
(Dkt. No. 46-1 at 14-15 of 24.) Defendants’ objection to this interrogatory is a valid one. Plaintiff’s
Complaint pertains to alleged disparate discipline, not alleged disparate job assignments. Moreover,
this interrogatory does not appear to pertain to the named Defendants in this case. Plaintiff’s motion
is denied with respect to Interrogatory 21.
Plaintiff’s objection to Defendants’ response to Interrogatory Number 23 is also without
merit. (See Dkt. No. 46-1 at 15-16 of 24.) This interrogatory, and corresponding response, are as
follows:
23. Indicate what the following statement of law means in Russle vs. Oliver, 552 F.2d
115, 116 (Va. 4th Cir. 1977): Where prisoner pro se civil rights complaint made
various allegations of privileges denied, in support of his complaint of being harassed
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because he exercised his right of access to the courts, the allegations should have been
considered as a unit, rather than isolated incidents in determining whether there has
been a denial of general rights?
ANSWER:
Plaintiff’s Interrogatory requests that Defendants’ counsel interpret a statement
of law from the Russell case. Defendants decline to respond on the ground that
it would be improper for counsel for Defendants in this case to give legal advice
to a party opponent.
(Dkt. No. 46-1 at 15-16 of 24.) Defendants are under no obligation to interpret the law for Plaintiff
and, as counsel has noted, doing so would be improper. Plaintiff’s motion is denied with respect to
Interrogatory Number 23.
Several Requests to Admit are also at issue in Plaintiff’s Third Motion to Compel, but
Plaintiff’s arguments are without merit. (See Dkt. No. 46-1 at 18-22 of 24.) As to Request to Admit
Numbers 6 and 8, such requests do not pertain to the Defendants in this case. Request to Admit
Number 11 pertains to a disciplinary hearing conducted almost a year after the hearing at issue, and
it does not appear related to his claim that black inmates are punished more harshly than white
inmates. (See generally Compl.; see also Dkt. No. 46-1 at 20-21 of 24.) Request to Admit Numbers
12, 13, and 14 are related to the race of inmates’ housing and/or work assignments. (See Dkt. No. 461 at 21-22 of 24.) As explained above, the instant case is not about discrimination in housing and/or
work assignments, nor is there any allegation or suggestion that the named Defendants have any
responsibilities related to housing and/or job assignments of inmates. Request to Admit Number 16
has the same deficiency as Interrogatory Number 23, within which Plaintiff essentially asks
Defendants to admit or deny a statement of law. Request to Admit Number 15 pertains to the alleged
barber shop incident referenced in Interrogatory Number 21. As noted above with respect to
Interrogatory Number 21, Plaintiff’s Complaint pertains to alleged disparate discipline, not alleged
disparate job assignments, and Request to Admit Number 15 does not appear to pertain to the named
Defendants in this case. Plaintiff’s motion is denied with respect to all Requests to Admit.
D.

Fourth Motion to Compel (Dkt. No. 50)
Whether Plaintiff’s “Second Set of Interrogatories and Admissions with Declaration Upon

Receiving Responses on 4/29/2016" was timely appears to be the main disputed issue in Plaintiff’s
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Fourth Motion to Compel. (See Dkt. No. 50; see also Dkt. No. 52; Dkt. No. 52-1.) Plaintiff served
the at-issue discovery requests on May 3, 2016. (See Dkt. No. 50-1 at 3 of 4.)
Local Civil Rule 26.04 provides, inter alia, “Pretrial discovery in all civil cases that are
exempt under Fed. R. Civ. P. 26(a)(1)(B) must be completed within a period of ninety (90) days
following the joinder of issues unless otherwise ordered.” Local Civ. Rule 26.04, D.S.C. The instant
action is exempt from initial disclosure pursuant to Federal Rule of Civil Procedure 26(a)(1)(B).
See FED. R. CIV. P. 26(a)(1)(B)(iv) (noting that “an action brought without an attorney by a person
in the custody of the United States, a state, or a state subdivision” is exempt from initial disclosures).
“Joinder of issues occurs when the basic factual and legal questions raised by the parties ‘crystallize’
i.e., when [the] defendant answers or otherwise responds to the allegations set forth in [the] plaintiff’s
complaint.” Bachman v. M. Lowenstein & Sons, Inc., 85 F.R.D. 10, 12 (D.S.C. 1979). In the case sub
judice, joinder of issues occurred at the latest on December 16, 2015, when Defendants filed their
Answer to Plaintiff’s Complaint. (See Dkt. No. 20.) Pretrial discovery therefore closed on March 15,
2016. Plaintiff’s “Second Set of Interrogatories and Admissions with Declaration Upon Receiving
Responses on 4/29/2016" was untimely. Accordingly, Plaintiff’s Fourth Motion to Compel (Dkt. No.
50) is denied. See, e.g., Cash v. Thomas, Civ. No. 6:12-1278-DCN-KFM, 2013 WL 1826619, at *1
(D.S.C. Apr. 8, 2013) (applying Local Civil Rule 26.04 to a § 1983 plaintiff’s “‘motion to subpoena
witnesses for declarations and affidavits’” and denying it as untimely because it was “an attempt to
conduct discovery at this late stage of litigation”).

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Conclusion
It is therefore ORDERED, for the foregoing reasons, that Plaintiff’s First Motion to Compel
(Dkt. No. 36) is GRANTED IN PART and DENIED IN PART. Specifically, Plaintiff’s motion is
granted as to the documents Bates Labeled SCDC 1 through SCDC 103; Request Number 15;
Request Number 17; Request Number 23; and Request Number 24. Plaintiff’s motion is denied as
to Request Numbers 7, 8, 9, 10, 11, 18, 19, 20, 16, 21, and 22.
It is further ORDERED that Plaintiff’s Second Motion to Compel (Dkt. No. 42) is
DISMISSED as moot.
It is ORDERED that Plaintiff’s Third Motion to Compel (Dkt. No. 46) is GRANTED IN
PART and DENIED IN PART. Specifically, Plaintiff’s motion is granted as to Interrogatory
Numbers 2, 14, and 15. Plaintiff’s motion is denied as to Interrogatory Numbers 8, 9, 10, 11, 18, 19,
20, 22, 21,and 23, as well as all Requests to Admit.
It is ORDERED that Plaintiff’s Fourth Motion to Compel (Dkt. No. 50) is DENIED.
To the extent that Plaintiff’s motions have been granted, Defendants are directed to file the
at-issue discovery responses–and serve a copy of those responses upon Plaintiff–within ten (10) days
of the date of this Order.
IT IS SO ORDERED.

November 18, 2016
Charleston, South Carolina

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