Johnson v. Horry, County of et al
Filing
135
ORDER denying 113 MOTION to Compel Discovery filed by Brad R Johnson; finding as moot 117 Second MOTION for Protective Order Regarding Defendants Carter and Barnhill filed by Brenda L Gorski, Tammy Barnhill, John Weaver, Janet Carter, Horry, County of, Hubert Mishoe. Signed by Magistrate Judge Thomas E Rogers, III on 5/4/212. (hcic, )
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
BRAD R. JOHNSON,
)
)
Plaintiff,
)
)
-vs)
)
)
COUNTY OF HORRY, STATE OF
)
SOUTH CAROLINA; HUBERT
)
MISHOE; JANET CARTER; JOHN
)
WEAVER; TAMMY BARNHILL;
)
and BRENDA GORSKI;
)
)
Defendants.
)
___________________________________ )
I.
Civil Action No.: 4:09-cv-1758-JMC-TER
ORDER
INTRODUCTION
Plaintiff, who is proceeding pro se, brings this civil rights action pursuant to 42 U.S.C.
§1983. Plaintiff alleges a cause of action of equal protection violations. Presently before the Court
are Plaintiff’s Motion to Compel (Document # 113) and Defendants’ Motions for Protective Order
(Document # 117).1 These motions arise out of the deposition of Defendant Tammy Barnhill as
noticed by Plaintiff and documents requested by Plaintiff. A hearing was held via telephone
conference on May 2, 2012. Pretrial proceedings in this case were referred to the undersigned
pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(e), DSC.
Defendant Barnhill was deposed on December 7, 2011, from 11:55 a.m to 1:08 p.m. During
the deposition, Barnhill discussed written warnings that were given to individuals believed to be in
violation of the ordinances at issue in this case prior to a ticket being issued. Barnhill Dep. pp. 39-40
1
The undersigned previously entered on Order (Document # 124) granting in part and
denying in part these Motions as they relate to depositions of and document requests to other
Defendants, but held in abeyance a ruling on the Motions as they relate to Defendant Barnhill.
(attached as Ex. 3 to Plaintiff’s Motion to Compel). During the deposition, Plaintiff asked that the
written warnings be produced in accordance with his previously served Requests for Production.
Barnhill Dep. pp. 47-48. Plaintiff also stated, “Why don’t we then adjourn for the moment and
continue the – the deposition – do you – when I can get the documents?” Barnhill Dep. p. 49.
Counsel for Defendants did not consent to an adjournment of the deposition. Barnhill Dep. p. 49.
Counsel for Defendant asked that Plaintiff continue the deposition with any questioning not relative
to the written warnings, but Plaintiff indicated that he could not continue the deposition without the
warnings. Barnhill Dep. p. 50. Neither party timely addressed this issue.
In his Motion to Compel, Plaintiff seeks an Order directing Defendant Barnhill to produce
“any and all warning tickets regarding Horry County Zoning Ordinance, Section 512 issued during
the period January 1, 2006, to the present in the custody or control of Defendant Tammy Barnhill.”
Motion to Compel p. 3. Plaintiff seeks relief under Rules 34(a) and 37(a)(3)(B), Fed.R.Civ.P., and
Local Rule 37.01, D.S.C. Local Rule 37.01(A), D.S.C., requires that a Motion to Compel “must be
filed within twenty-one (21) days after receipt of the discovery response to which the motion to compel
is directed . . . .” Defendants’ Responses to Plaintiff’s Requests for Production were served on
September 15, 2010. See Plaintiff Ex. 6 to Barnhill Dep. Although Plaintiff did file a Motion to
Compel (Document # 50) addressing Defendants’ Answers to Plaintiff’s Interrogatories served on the
same date, he did not raise any issues with respect to Defendants’ Responses to his Requests for
Production.
Even if Plaintiff did not become aware of the alleged deficiency in Defendants’
Responses2 until he took Barnhill’s deposition on December 7, 2011, his Motion to Compel was still
2
Horry County has issued warning tickets to Plaintiff in the past. See, e.g., Additional
Attachments to Motion to Compel (Document # 129).
-2-
untimely as it was not filed until April 16, 2012, far outside the twenty-one day time frame.3
Therefore, Plaintiff’s Motion to Compel is denied as untimely.
Even if Plaintiff’s Motion to Compel was timely, denial of the Motion is still appropriate under
Rule 26(b)(2)(C)(iii), Fed.R.Civ.P., which provides that the court “must limit the frequency or extent
of discovery otherwise allowed by these rules or by local rule if it determines that . . . the burden or
expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the
amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and
the importance of the discovery in resolving the issues.”
Defendant argues that the requested documents are immaterial and irrelevant to the instant
litigation. During the hearing, Plaintiff argued that the warning tickets were relevant to his equal
protection claim. He described his claim as follows:
Here’s the basis for the equal protection claim. Number one, the plaintiff
owns property in Horry County whereupon plaintiff has placed four sheds that are
allegedly within said property setback areas as those areas are measured from the
edge of any easement. Accordingly, plaintiff is similarly situated to that class of
persons, A, who own property in Horry County, and, B, who have allegedly placed
one or more sheds within said property setback areas as those areas are measured
from the edge of any easement.
Number two, based upon established policies, practices and procedures of the
defendant, Horry County, in administering and enforcing Horry County Zoning
Ordinance 512(13)(o)(8), when each of the individual county defendants either, A,
received notice of a complaint with regard to a shed being placed in a property
setback area that is perceived to be a violation of section 512 as those areas are
measured from the edge of any easement, or, B, personally observed the shed being
placed allegedly in a property setback area, such individual county defendant issues
or causes to be issued a warning ticket for the purpose of intimidating and threatening
said person to remove the shed from such property setback area, an act for which
such person has no legal obligation to do, the disparate treatment according to the
property owners in Horry County for which either a complaint is received or a
3
Local Rule 37.01 provides for extensions if the parties are actively engaged in resolving
issues and the agreement to extend is in writing. Neither factor is present in this case.
-3-
personal observation is made concerning the placement of a shed in property setback
area implicates the violation of ex post facto principles as those principles are
incorporated into the concept of due process.
May 2, 2012, Hearing.
“To succeed on an equal protection claim, a plaintiff must first demonstrate that he has been
treated differently from others with whom he is similarly situated and that the unequal treatment was
the result of intentional or purposeful discrimination.” Morrison v. Garraghty, 239 F.3d 648, (4th
Cir.2001). Based upon Plaintiff’s argument as presented at the hearing and the allegations of his
Complaint, it is unclear how Plaintiff alleges that he was treated differently from others with whom
he is similarly situated. Nevertheless, even if Plaintiff can show disparate treatment based upon
intentional discrimination, the issue of constitutionality is determined based upon the type of judicial
scrutiny warranted. Parham v. Hughes, 441 U.S. 347, 99 S.Ct. 1742, 60 L.Ed.2d 269 (1979). Here,
it appears that the lowest level of scrutiny is applicable. See Mitchell v. Commissioner of the Social
Sec. Admin., 182 F.3d 272, 274 (4th Cir. 1999) (“In considering an equal protection challenge, we
generally will presume the legislation at issue to be valid and will uphold the statute if the classification
it draws is rationally related to a legitimate purpose. . . . If, however, the statute employs a suspect
class or burdens the exercise of a constitutional right, we exercise strict scrutiny review, upholding the
statute only if it is narrowly tailored to serve a compelling state interest.”).4 Accordingly, Plaintiff’s
equal protection claim appears to be quite tenuous.
Additionally, Defendants argue that the requested documents are incapable of being compiled
4
Plaintiff appears to argue that a strict scrutiny analysis is applicable here because of section
512's alleged violation of the due process guarantee of fair warning. However, based upon the
allegations, the ordinance does not appear to burden a constitutional right. Cf. Kramer v. Union
Free School District No. 15, 395 U.S. 621 (1969) (Plaintiff challenged statute specifically aimed at
limiting who could vote in school board elections and, thus, strict scrutiny analysis applied).
-4-
without excessive manpower and/or expense because, as defense counsel is informed and believes
based upon the representations of Barnhill, the requested warning tickets are not filed according to
violation and, thus, there exists no way to determine whether a particular warning was issued
concerning Horry County Zoning Ordinance Section 512 absent each and every warning being
manually pulled and reviewed to see if it applies to section 512. The undersigned entered an Order
directing Defendants to file an affidavit or affidavits addressing the burden of producing the written
warnings requested by Plaintiff no later than Monday, April 30, 2012. Defendants submitted the
Affidavit of Sheila Hendrick, Supervisor of the Horry County Code Enforcement Department.
Hendrick Aff. ¶ 1. In her Affidavit, Hendrick avers that “thousands of complaint files” exist that
“may or may not include warning tickets for all different types of violations, not only those which
may be at issue in this case,” and that “each file would have to be individually reviewed by trained
personnel in order to determine whether a particular warning may have been issued concerning” the
ordinances at issue.” Hendrick Aff. ¶ 7. During the hearing, Plaintiff offered to limit his request to
complaint files from 2008 and beyond and to undertake the burden of reviewing each complaint file
to determine if any contains information responsive to his request. However, even under this
proposed resolution, Defendant would be burdened by the time and expense of making the
information, a time and location available, and by providing someone to accompany Plaintiff during
the process during the undoubtedly lengthy amount of time it would take Plaintiff to go through each
of the thousands of files.
Accordingly, in addition to being untimely, given the tenuous nature of Plaintiff’s equal
protection claim and the burden on Defendants to make the requested documents available, pursuant
to Rule 26(b)(2)(C)(iii), Fed.R.Civ.P., denial of Plaintiff’s Motion to Compel is appropriate for these
-5-
reasons as well. Furthermore, Plaintiff agrees that it would be unnecessary to depose Barnhill a
second time without the warning tickets.
In sum, Plaintiff’s Motion to Compel (Document # 113) production of the warning tickets
and the deposition of Defendant Barnhill is DENIED. Defendants’ Motion for Protective Order
(Document # 117) as to Defendant Barnhill’s deposition is MOOT.
IT IS SO ORDERED.
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge
May 4, 2012
Florence, South Carolina
-6-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?