Waters v. Stewart et al

Filing 152

ORDER denying 120 Motion for Reconsideration; denying 130 Motion for Default Judgment; granting 144 Motion to Stay; and granting 145 Plaintiff's Rule 56D Motion to the extent Plaintiff requests additional time to respond to the Motion for Summary Judgment. Plaintiff should receive the dashcam video within ten days of the date of this order, and thereafter will have thirty days to file his response. In other words, Plaintiff has forty days from the date of this order to file a response to Defendants' Motion for Summary Judgment (ECF No. 140 ). If Defendants are unable to produce it because it is not within their possession, custody, or control as defined in the case law interpreting Rule 34(a)(1), Defendants must, within the same time frame, file an affidavit explaining why the dash cam video is not within their possession, custody, or control and detailing the efforts made in attempting to regain possession of this video from the federal pro secutor. Although the court declines to award sanctions against Defendants at this time, it reserves the right to readdress the issue of sanctions under Rule 37 at a later time if necessary. Signed by Magistrate Judge Thomas E Rogers, III on 01/31/2018.(dsto) (Main Document 152 replaced on 1/31/2018 to delete blank page) (dsto)

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

)
)
Plaintiff,
)
)
-vs)
)
)
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
)
C. STRICKLAND,
)
)
Defendant.
)
___________________________________ )
I.

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

ORDER

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 are Plaintiff’s Motion
for Reconsideration (ECF No. 120), Plaintiff’s Motion for Default Judgment (ECF No. 130) pursuant
to Fed.R.Civ.P. 37, Plaintiff’s Motion to Stay Response to Motion for Summary Judgment (ECF No.
144) and Plaintiff’s Rule 56(d) Motion (ECF No. 145). 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.
II.

DISCUSSION
A.

Motion for Reconsideration

Plaintiff asks the undersigned to reconsider its Order (ECF No. 115) granting in part and

denying in part his motion to compel. Specifically, he asks the court to consider his Reply (ECF No.
118) to Defendants’ Sur-reply, which was filed after the Order and in which he asks the court to
direct Defendants to produce additional information not previously requested in his Requests for
Production.
Rule 54(b) of the Federal Rules of Civil Procedure governs the reconsideration of
interlocutory orders, including discovery orders. See McCook Metals LLC v. Alcoa, Inc., 249 F.3d
330, 335 (4th Cir.2001); Quigley v. United States, 865 F.Supp.2d 685, 699 (D.Md.2012). In
considering whether to revise interlocutory decisions, district courts in this Circuit have looked to
whether movants presented new evidence, United States v. Duke Energy Corp., 218 F.R.D. 468, 474
(M.D.N.C.2003), or whether the court has “obviously misapprehended a party’s position or the facts
or applicable law.” Id. Plaintiff offers no new evidence, applicable law or arguments that could not
have been raised in Plaintiff’s original motion or reply. Furthermore, the court cannot compel a party
to produce documents not previously requested from the opposing party. For these reasons,
Plaintiff’s Motion for Reconsideration (ECF No. 120) is DENIED.
B.

Motion for Default Judgment1

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
1

The undersigned originally addressed this motion by report and recommendation, but
subsequently vacated the report and recommendation because magistrate judges have the
authority under 28 U.S.C. § 636 to enter an order on a motion for sanctions under Fed.R.Civ.P.
37 unless the magistrate judge determines that dismissal or default judgment may be appropriate.
If so, a report and recommendation is necessary. See Segal v. L.C. Hohne Contractors, Inc., 303
F.Supp.2d 790, 794 (S.D.W.Va. 2004) (finding that “the sanction imposed by the magistrate
judge, rather than the sanction sought by the party” governs the scope of the magistrate judge’s
authority). Because default judgment is not appropriate for the reasons discussed herein, a report
and recommendation is unnecessary.
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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 twenty-two, 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
for their failure to respond.2
2

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
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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) 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,

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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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. 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

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in attempting to obtain it is not clear.3 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 and
Plaintiff’s Motion for Default Judgment (ECF No. 130) is DENIED.
The production of the dash cam video remains unsettled, however. Defendants are directed
to produce the dash cam video to Plaintiff within ten days from the date of this Order. If
Defendants are unable to produce it because it is not within their “possession, custody, or
control” as defined in the case law interpreting Rule 34(a)(1), Defendants must, within the

3

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).
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same time frame, file an affidavit explaining why the dash cam video is not within their
“possession, custody, or control” and detailing the efforts made in attempting to regain
possession of this video from the federal prosecutor. Although the court declines to award
sanctions against Defendants at this time, it reserves the right to readdress the issue of
sanctions under Rule 37 at a later time if necessary.
C.

Motion to Stay Response to Motion for Summary Judgment and Rule 56(d)
Motion

In these motions, Plaintiff seeks to stay the response time and asks the court not to rule on
Defendants’ Motion for Summary Judgment (ECF No. 140) until all discovery issues have been
resolved. The only discovery issue that remains4 is the production of a dash cam video.
Plaintiff’s Motions (ECF Nos. 144, 145) are GRANTED to the extent Plaintiff requests
additional time to respond to the Motion for Summary Judgment. Plaintiff should receive the dash
cam video within ten days of the date of this order, and thereafter will have thirty days to file his
response. In other words, Plaintiff has forty days from the date of this order to file a response
to Defendants’ Motion for Summary Judgment (ECF No. 140).
IT IS SO ORDERED.
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge
January 31, 2018
Florence, South Carolina

4

Plaintiff argues that Defendants have not produced the recording from the 911 call made
on March 12, 2015, as ordered by the court. This is not correct. Defendants asserted that the
Lake City Police Department’s dispatch system did not record calls. The undersigned ordered
only that Defendants provide an affidavit attesting to the veracity of their response.
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