Waters v. Stewart et al
ORDER finding as moot 46 Motion to Compel; finding as moot 69 Motion for Summary Judgment; denying 75 Motion for Reconsideration ;finding as moot 77 Motion to Stay; finding as moot 91 Motion for Extension of T ime to File Response/Reply ; granting 93 Motion for Extension of Time to File Response/Reply. Defendants are directed to file a sur-reply to Plaintiff's reply (Document # 89 ) within ten days from the date of this order.Within that sur-reply , Defendants are directed to notify the court of the status of Plaintiff's state criminal charges arising from the arrest on March 13, 2015. Ruling on Plaintiff's second Motion to Compel (Document # 63 )is held in abeyance pending further briefing. An amended schedulingorder will be entered upon resolution of the motion to compel. Signed by Magistrate Judge Thomas E Rogers, III on 01/27/2017.(dsto, )
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
THOMAS BRADFORD WATERS,
LAKE CITY POLICE OFC. JOHN
STEWART, LAKE CITY POLICE OFC. )
MARK STRICKLAND, LAKE CITY
POLICE OFC. SGT. ANTHONY
BACKHUSS, LAKE CITY POLICE OFC. )
JODY COOPER, ATF AGENT ALAN
Civil Action No.: 4:15-cv-4143-RBH-TER
Plaintiff, who is proceeding pro se, brings this action, alleging violations of his constitutional
rights pursuant to both 42 U.S.C. § 1983 and Bivens v. Six Unknown Federal Narcotics Agents, 403
U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Presently before the court are Plaintiff’s Motions
to Compel (Documents # 46, 63), Motion for Reconsideration (Document # 75), and Motion for
Extension of Time (Document # 93).1 All 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
Also pending is Defendants’ Motion for Summary Judgment (Document # 69).
However, Plaintiff’s amended complaint was filed after Defendants filed their motion. Therefore
the motion is moot. In addition, Plaintiff’s motions for an extension of time to respond
(Documents # 77, 91) to the summary judgment motion are also moot. An amended scheduling
order will be entered upon resolution of the motion to compel, as discussed below.
MOTIONS TO COMPEL
Plaintiff has filed two motions to compel, stating that he has not received any responses to
his discovery requests to Defendants. In response to the second motion to compel, Defendants stated
that they had served their discovery responses on Plaintiff. Plaintiff filed a reply (Document # 89),
arguing that Defendants objected to each of his discovery requests. Plaintiff attached Defendants’
discovery responses to his reply and argues that Defendants’ objections are without merit. Because
these arguments were raised in Plaintiff’s reply, Defendants have not responded to them. Thus,
Defendants are directed to file a sur-reply to Plaintiff’s reply (Document # 89) within ten days
from the date of this order.
Further, it is noted that Defendants raise similar objections to many of Plaintiff’s requests
by stating that the requested documents have been turned over to prosecutors in an ongoing criminal
prosecution and Defendants do not have authority to release materials pertinent to an ongoing
prosecution. Problems can arise during the discovery process when related civil and criminal actions
are pending because of the “differences between the discovery privileges available to [the plaintiff]
in each case.” Degen v. United States, 517 U.S. 820, 825-26, 116 S. Ct. 1777, 1781-82, 135 L. Ed.
2d 102 (1996). “A criminal defendant is entitled to rather limited discovery, with no general right
to obtain the statements of the Government’s witnesses before they have testified. . . . In a civil case,
by contrast, a party is entitled as a general matter to discovery of any information sought if it appears
‘reasonably calculated to lead to the discovery of admissible evidence.’” Id. (citing Fed. Rules
Crim. Proc. 16(a)(2), 26.2; Fed. Rule Civ. Proc. 26(b)(1)). Parties should not be allowed to use the
more liberal rules of civil discovery to “gain an improper advantage in the criminal matter.” Id.
However, any such concerns are alleviated when the criminal prosecution is complete. See, e.g.,
U.S. v. Any and All Assets of That Certain Business Known as Shane Co., 147 F.R.D. 99, 101
(M.D.N.C. 1992) (noting that, in such circumstances, parties may seek to stay the matter until the
conclusion of the trial). Here, as Plaintiff notes in his reply, his federal trial is complete. See U.S.
v. Waters, 4:15-cr-0158-BHH-1, Judgment (Document # 162). However, it appears that state charges
were also brought arising from the March 12, 2015, arrest. The status of those charges is not clear.
Thus, in their sur-reply, Defendants are directed to notify the court of the status of those state
criminal charges. Ruling on Plaintiff’s second motion to compel (Document # 63) will be held in
abeyance pending Defendants’ sur-reply. Plaintiff’s first motion to compel (Document # 46) is
MOTION FOR RECONSIDERATION
Plaintiff seeks reconsideration of this court’s denial of his motion requesting disclosure under
the Freedom of Information Act (Document # 27). In denying Plaintiff’s motion, the court discussed
In his motion for disclosure of information under the Freedom of Information
Act, Plaintiff requests that “the government Alfred W. Bethea, Jr. to turn over a one
page transcript that was prepared for the jury at my trial. This transcript was used in
case # 4:15-cr-158. It was used because a part of the cop car in dash video is hard to
hear and this video well the transcript tells what took place outside the sight of the
in dash video.” Pl. Motion. FOIA requires each governmental agency to provide
information to the public on request if the request “reasonably describes” the record
sought and is made in accordance with published agency rules for making requests.
5 U.S.C. § 552(a)(3). The agency is required to provide a response within 10 days of
the receipt of the request on whether it will provide the information. 5 U.S.C. §
552(a)(6). Subsection 552(b) enumerates nine exemptions from the production
requirement. See Virginia Beach v. U.S. Dep’t of Commerce, 995 F.2d 1247, 1253
(4th Cir.1993). The United States District Courts are given jurisdiction to enjoin
agencies from “withholding Agency records and to order the production of any
Agency records improperly withheld.” 5 U.S.C. § 552(a)(4)(B). However, before the
court has jurisdiction to enter any such order, a proper FOIA request must be made
with the agency from whom the party is requesting documents and the agency must
have withheld the documents from production. It does not appear that Plaintiff has
made a FOIA request to the U.S. Attorney’s Office. Further, the U.S. Attorney’s
Office is not a party to this action. Thus, the relief requested by Plaintiff in this
motion for disclosure is improper.
Order p. 3-4 (Document # 41). The court further noted that it “offers no opinion as to whether FOIA
is the proper avenue for requesting the information sought by Plaintiff, which appears to be evidence
used at trial during his criminal case, only that the present motion is improper.” Id. at n.4.
In his motion for reconsideration, Plaintiff asserts that he requested a copy of the transcript
from the court in his criminal case, but the motion was denied because Plaintiff, who was
represented by counsel in the criminal matter, filed the motion pro se. Plaintiff also asserts that he
then asked his attorney for the copy, but she told him she did not have it. Plaintiff asserts that he
does not know how else to go about receiving the transcript.
Reconsideration of interlocutory orders may be contested under Rule 54(b). See Quigley v.
United States, 865 F.Supp.2d 685, 699 (D.Md.2012) (quoting Fed.R.Civ.P. 54) (“[A]ny order or
other decision, however designated, that adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties does not end the action ... and may be revised at any time
before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities”).
A court’s discretion to review an interlocutory order is “not subject to the strict standards applicable
to motions for reconsideration of a final judgment,” Am. Canoe Ass'n v. Murphy Farms, Inc., 326
F.3d 505, 514 (4th Cir.2003), but is “within the plenary power of the Court ... to afford such relief
... as justice requires.” Fayetteville Investors, 936 F.2d at 1473. Although Rule 60 does not govern
reconsideration of an interlocutory order, the Fourth Circuit has suggested that at least parts of the
rule may guide a court's analysis. Id. at 1470, 1472; Pritchard v. Wal–Mart Stores, Inc., 3 F. App'x
52, 53 (4th Cir.2001). In considering whether to revise interlocutory decisions, district courts in this
circuit have looked to whether movants presented new evidence, or whether the court has “obviously
misapprehended a party’s position or the facts or applicable law.” United States v. Duke Energy
Corp., 218 F.R.D. 468, 474 (M.D.N.C.2003).
Here, Plaintiff essentially argues that he has already tried to obtain the transcript a few
different ways and does not know how to get it other than to ask the court in this civil matter. Still,
as stated in the previous order, the method by which Plaintiff seeks to obtain the requested transcript,
via a court order under FOIA, is improper. Further, discovery requests are to be served on parties,
not filed with the court, and the court does not get involved in discovery matters until a party has
requested discovery pursuant to the Federal Rules of Civil Procedure and, thereafter, a dispute arises.
Finally, the Federal Rules of Civil Procedure do not provide a mechanism for parties to seek
“discovery” from the court. For these reasons, the relief sought by Plaintiff is improper and his
motion for reconsideration is denied.
MOTION FOR EXTENSION OF TIME
Plaintiff seeks an extension of time to provide service documents for the two John Doe
Defendants he named in his Amended Complaint. These two Defendants are the EMS workers who
treated Plaintiff after he was tased on March 12, 2015. Plaintiff sent a discovery request to
Defendants requesting the names of these two EMS workers. Defendants objected to the request,
and that objection, among others, is at issue in the motion to compel discussed above. Plaintiff seeks
an extension to return the service documents until the discovery issues are resolved. Plaintiff’s
motion is granted. A deadline to provide the service documents will be set in the order addressing
Plaintiff’s motion to compel.
For the reasons discussed above, Plaintiff’s Motion to Compel (Document # 46) is MOOT,
Motion for Reconsideration (Document # 75) is DENIED, and Motion for Extension of Time
(Document # 93) is GRANTED. Ruling on Plaintiff’s second Motion to Compel (Document # 63)
is held in abeyance pending further briefing. As set forth above, Defendants are directed to file a
sur-reply to Plaintiff’s reply (Document # 89) within ten days from the date of this order.
Within that sur-reply, Defendants are directed to notify the court of the status of Plaintiff’s
state criminal charges arising from the arrest on March 13, 2015.
IT IS SO ORDERED.
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge
January 27, 2017
Florence, South Carolina
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