Waters v. Stewart et al

Filing 149

REPORT AND RECOMMENDATION recommending that Plaintiff's Motion for Default Judgment (ECF No. 130 ) be denied at this time. Objections to R&R due by 2/13/2018. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. Signed by Magistrate Judge Thomas E Rogers, III on 01/30/2018. (Attachments: # 1 Notice of Right to File Objections)(dsto, ) Modified on 1/31/2018 to terminate Report and Recommendation. (dsto)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
THOMAS BRADFORD WATERS,

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Plaintiff,
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-vs)
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LAKE CITY POLICE OFC. JOHN
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STEWART, LAKE CITY POLICE OFC. )
MARK STRICKLAND, LAKE CITY
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POLICE OFC. SGT. ANTHONY
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BACKHUSS, LAKE CITY POLICE OFC. )
JODY COOPER, ATF AGENT ALAN
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C. STRICKLAND,
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Defendant.
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___________________________________ )
I.

Civil Action No.: 4:15-cv-4143-RBH-TER

REPORT AND RECOMMENDATION

INTRODUCTION
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
is Plaintiff’s Motion for Default Judgment (ECF No. 130) pursuant to Fed.R.Civ.P. 37. Defendants
filed a Response (ECF. No. 131), to which Plaintiff filed a Reply (ECF No. 134). 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 73.02(B)(2)(d), DSC. This Report and Recommendation
is entered for review by the district judge.
II.

DISCUSSION
Plaintiff moves for default judgment against Defendants pursuant to Fed.R.Civ.P. 37,

arguing that they failed to comply with an Order (ECF No. 115) granting in part his motion to

compel and directing them to respond to certain discovery requests. Specifically, the undersigned
directed Defendants to respond to Plaintiff’s Requests for Production six, eight, twenty, and twentytwo, and to provide an affidavit attesting to the veracity of their supplemental responses to many
of the remaining Requests within ten days of the date of the Order. On March 9, 2017, Defendants
provided Plaintiff the affidavit of Sgt. Trey Miles, who provided second supplemental responses
to the four requests listed above. Plaintiff acknowledges receiving this affidavit. As to Plaintiff’s
Request for Production number eight, in which he requested “any and all audio/video records from
the Lake City Police Department Police vehicles that was dispatched to 439 South Morris Street,
Lake City, South Carolina on 3/12/15 at or about 7:30” (dash cam video) Sgt. Miles averred “we
have requested a return of the requested materials from the Federal Prosecutor but, to date, have
been unsuccessful in obtaining same. We are continuing the follow up and will supplement this
request.” Miles Aff. ¶ 5 (Ex. to Def. Resp.). In addition, the affidavit included a final paragraph
stating
These answers are true and correct to the best of my knowledge and I attest to the
veracity of these responses. I attach a copy of Defendants’ Stewart, Strickland,
Backhuss, and Cooper’s Supplemental Responses to Plaintiff’s Request for
Production and incorporate the same into this affidavit.
Miles Aff. ¶ 8.
Plaintiff complains that, at the time he filed the present motion in July, he still had not
received the dash cam video. Plaintiff also complains that Defendants did not provide an affidavit
attesting to the veracity of the Defendants’ previous discovery responses as directed by the court.
For these reasons, Plaintiff asks the court to enter default judgment against Defendants as a sanction

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for their failure to respond.1
The Court has authority pursuant to Fed.R.Civ.P. (b)(2)(A) to sanction a party for failure
to comply with a court order regarding discovery:
(A) For Not Obeying a Discovery Order. If a party or a party's officer, director, or
managing agent--or a witness designated under Rule 30(b)(6) or 31(a)(4)--fails to
obey an order to provide or permit discovery, including an order under Rule 26(f),
35, or 37(a), the court where the action is pending may issue further just orders.
They may include the following:
(i) directing that the matters embraced in the order or other designated facts
be taken as established for purposes of the action, as the prevailing party
claims;
(ii) prohibiting the disobedient party from supporting or opposing
designated claims or defenses, or from introducing designated matters in
evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order except an
order to submit to a physical or mental examination.
Fed.R.Civ.P. 37(b)(2)(A). Subsection (c)(1) of Rule 37 provides for sanctions for a party’s failure
to supplement an earlier response:

1

Prior to filing the present motion, Plaintiff filed a document requesting that the court
award attorney’s fees and strike Defendants’ Motion for Summary Judgment (ECF No. 69) for
the same conduct about which Plaintiff complains here. That document was docketed as an
additional attachment (ECF No. 129) to another motion. Plaintiff subsequently sent letters to the
court indicating that ECF No. 129 was improperly docketed and should have been docketed as a
motion. See Letters (ECF Nos. 136, 137, 138). Because Plaintiff seeks sanctions in that
document for the same conduct raised in the present motion, the court has considered ECF No.
129 in conjunction with this motion. However, Plaintiff’s request that Defendants’ motion for
summary judgment (ECF No. 69) be stricken is moot because that motion had already been
deemed moot in a previous order. See ECF No. 102. Further, because Plaintiff is not represented
by counsel, he has not incurred any attorney’s fees. See Watts v. Foster, 887 F.2d 1082, 1989
WL 117807, at *1 (4th Cir.1989) (finding no error in denial of attorney’s fees because prevailing
party proceeded pro se).
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(1) Failure to Disclose or Supplement. If a party fails to provide information or
identify a witness as required by Rule 26(a) or (e), the party is not allowed to use
that information or witness to supply evidence on a motion, at a hearing, or at a trial,
unless the failure was substantially justified or is harmless. In addition to or instead
of this sanction, the court, on motion and after giving an opportunity to be heard:
(A) may order payment of the reasonable expenses, including attorney's
fees, caused by the failure;
(B) may inform the jury of the party’s failure; and
(C) may impose other appropriate sanctions, including any of the orders
listed in Rule 37(b)(2)(A)(i)-(vi).
Fed.R.Civ.P. 37(c)(1). Regardless of which subsection is applied, both allow for default judgment
as a sanction.
To impose sanctions under Rule 37, a court must consider four factors: “(1) whether the
non-complying party acted in bad faith, (2) the amount of prejudice that noncompliance caused the
adversary, (3) the need for deterrence of the particular sort of non-compliance, and (4) whether less
drastic sanctions would have been effective.” Belk v. Charlotte-Mecklenburg Bd. of Educ., 269
F.3d 305, 348 (4th Cir.2001).
Here, Defendants timely provided an affidavit and second supplemental responses as
directed by the court. Sgt. Miles averred that he had requested the dash cam video from the federal
prosecutor but had not yet received it and would follow up with the request and supplement the
response. In addition, even though Sgt. Miles averred to the veracity of “these” responses and
incorporated Defendants’ supplementary responses into his affidavit, it is not clear from the
wording of the affidavit whether he is averring to the veracity of the supplementary responses or
only the second supplementary responses specifically addressed in the affidavit. While it does not
appear that Defendants acted in bad faith with respect to initially complying with the court’s order,
at the time Plaintiff filed the present motion, approximately five months had passed since Sgt.

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Miles’s affidavit, and Defendants still had not provided the dash cam video to Plaintiff. The court
recognizes that the dash cam video is not actually in Defendants’ possession, but whether
Defendants have been diligent in attempting to obtain it is not clear.2 Defendants’ failure to
provide the dash cam video has prejudiced Plaintiff because he asserts that he needs the video to
be able to oppose summary judgment.
Nevertheless, “Only the most flagrant cases, where the party’s noncompliance represents
bad faith and callous disregard for the authority of the district court and the Rules, will result in the
extreme sanction of dismissal or judgement by default.”

Jackson v. Vance Cty., No.

5:97-CV-103-BO, 1997 WL 906015, at *1 (E.D.N.C. Nov. 26, 1997) (quoting Mut. Fed. Sav. &
Loan Ass'n v. Richard & Assocs., 872 F.2d 88, 92 (4th Cir. 1989)). Further, the Fourth Circuit has
emphasized the importance of warning a defendant about the possibility of default sanctions before
entry. Hathcock v. Navistar Int'l Transp. Corp., 53 F.3d 36, 40 (4th Cir. 1995). No such warning
was given in the order directing Defendants to produce the dash cam video, and Defendants’
actions fail to rise to the “flagrant” level. Thus, judgment by default is not appropriate at this time.3

2

In their supplemental responses, Defendants indicated they could not produce the dash
cam video because it was turned over to the federal prosecutor and had not been returned to the
Lake City Police Department. The undersigned, noting that “documents are considered to be
under a party’s control when that party has the right, authority, or practical ability to obtain the
documents from a non-party,” Goodman v. Praxair Servs., Inc., 632 F.Supp.2d 494, 515
(D.Md.2009)(citation and internal quotation marks omitted), ordered Defendants to “produce the
requested materials or explain why they do not have ‘possession, custody, or control’ . . . of this
discovery within ten days of the date of this order.” Order (ECF No. 115).
3

The production of the dash cam video remains unsettled, however, and will be addressed
by separate order. The court reserves the right to revisit the issue of sanctions if necessary.
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III.

CONCLUSION
For the reasons discussed above, it is recommended that Plaintiff’s Motion for Default

Judgment (ECF No. 130) be denied at this time.
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge
January 30, 2018
Florence, South Carolina

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