Butler v. Bessinger et al

Filing 92

ORDER granting in part and denying in part 65 Motion for Protective Order; denying and finding as moot 66 Motion to Compel; granting in part and denying in part 72 Motion to Amend Complaint. Plaintiff shall have twent y days from the date of this order to file one complete amended complaint for the sole purpose of adding Travis Esterline as a party Defendant and allegations as to this Defendant. Counsel for Defendants is directed to inform the court and Plaintiff within five days of the date of this order, if they will accept service on behalf of Defendant Esterline; Plaintiff's Motion to Amend the Complaint to name John Williams as a Defendant is denied as moot; and finding as moot 89 Third Motion t o Amend/Correct Scheduling Order and 90 Motion for Extension of Time. A new scheduling order will be entered by the court once the answer to the amended complaint is filed with the court setting deadlines for completion of discovery and dispositive motions. Signed by Magistrate Judge Thomas E Rogers, III on 01/11/2018.(dsto)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
LAVADRE BUTLER,

)
)
Plaintiff,
)
)
vs.
)
)
TREVOR BESSINGER, LISA YOUNG, GREGORY )
WASHINGTON, MR. ESCALYNE, MR. SUAREZ, )
MR. BRADDY, MR. SHORTER, MR. WILLIAMS, )
MR. WILSON,
)
)
Defendants.
)
____________________________________________)

C/A No. 4:16-3662-RMG-TER

ORDER

This matter is before the court upon Defendants’ Motion for Protective Order,
Plaintiff’s Motion to Compel, Plaintiff’s Motion to Amend the Complaint, Defendants’ third
Motion to Amend the Scheduling Order, and Defendants’ motion for extension of the
dispositive motion deadline.
Motion for Protective Order
In the Motion for Protective Order pursuant to Federal Rules of Civil Procedure
26(c)1, Defendants object to Plaintiff’s Request for Production Request #4 which asks

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Rule 26 of the Federal Rules of Civil Procedure gives the general framework for
determining the scope of allowable discovery for cases in federal courts, providing “[p]arties
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.” Fed. R. Civ. P. 26(b)(1). Accordingly,
all relevant material is discoverable unless an applicable discovery privilege is asserted, but
Rule 26(c) grants federal judges the discretion to issue protective orders imposing restrictions
on the extent and manner of discovery where necessary “to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P.
26(c)(1).

Defendants to provide the “complete prison employee record of each Defendant” as those
files contain personally identifiable information, salary information, addresses, family
information and other information that is not relevant to Plaintiff’s allegations and poses a
risk to the safety of the Defendants and their families. Defendants assert that none of the
alleged issues raised in Plaintiff’s complaint that the Defendants used excessive force or
denied him proper medical care relate to the information contained in their personnel files.
Plaintiff filed a sur-reply arguing the contents will “make known whether or not the
Defendants have participated in or facilitated attacks similar to the 11-14-14 attack detailed
in Plaintiff’s complaint. . .” (Doc. # 77).
Defendants’ motion for protective order with regard to Plaintiff’s Request #4 is
granted in part and denied in part. (Doc. #65). Defendants are to produce, within fifteen
days of the date of this order, the contents of their employee record that defendant
“participated in or facilitated attacks” or excessive force upon an inmate or deliberately
denied medical care to an inmate. Otherwise, the motion for protective order is granted.
Additionally, Defendants seek a protective order as to Plaintiff’s Request to Produce
Request #7 to provide Plaintiff with the South Carolina Department of Corrections (SCDC)
Use of Force Policy. Defendants argue that the Use of Force Policy OP-22.01 is classified
as a restricted policy and providing the information contained in the Policy to any current
inmate would place the safety and welfare of every employee working within the SCDC

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institutions in jeopardy. Defendants attached the affidavit of Colie Rushton who attests that
he is employed with the SCDC as Director, Division of Security asserting that “[i]t is
imperative that no inmate ever be allowed access to this policy. Should the information
contained in this policy/procedure ever be provided to inmate(s), the safety and welfare of
every employee working within the SCDC institutions would potentially be placed in
jeopardy.” (Doc. #65-2 at 2). Rushton asserts that the information within the Use of Force
policy is classified because it identifies the “minutest specifics as to the various levels of
control resulting from various levels of resistance from inmates.” Id. Rushton attests that
providing the restricted policy to inmates or other non-authorized individuals “would be
much like providing those unworthy of trust with the combination to the bank vault.” Id.
Plaintiff filed a sur reply on October 16, 2017. (Doc. #77).
Initially, “[t]he failure of prison officials to follow their own policies or procedures,
standing alone, does not amount to a constitutional violation.” Johnson v. S.C. Dep't of
Corrections, No. 06–2062, 2007 WL 904826, at *12 (D.S.C. Mar.21, 2007) (citing United
States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1978)); see also Riccio v.
Cnty. of Fairfax, Va., 907 F.2d 1459, 1469 (4th Cir.1990) (if state law grants more
procedural rights that the Constitution requires, a state's failure to abide by that law is not a
federal due process issue); Keeler v. Pea, 782 F.Supp. 42, 44 (D.S.C.1992) (violations of
prison policies which fail to reach the level of a constitutional violation are not actionable
under § 1983). Furthermore, the public interest weighs in favor of policies which encourage
security in prisons, and based on the record and arguments presented, Plaintiff fails to show
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this has anything more than minor relevance, if any, to his claims of the use of excessive
force by removing him from his cell, cutting his hands with a hooked knife causing blood
loss and scars, punching him in the face causing bruising and swelling, spraying him with
mace all over his body, slamming his head into the cement floor multiple times while
handcuffed, thrusting him down a flight of stairs while in restraints, and denying him proper
medical care. (See, e.g., Nicholas v. Ozmint, 2006 WL 2711852, at *5 (D.S.C. Sept. 20,
2006)). Based on the evidence presented by Defendants, good cause has been shown to grant
the motion for protective order with regard to Plaintiff’s Request #7 as to the restricted
policy. See Rule 26(b)(1), Fed. R. Civ. P. (Doc. #65).

Motion to Compel
Plaintiff filed a Motion to Compel seeking an order compelling Defendants to provide
the full employee record of each Defendant involved in the allegations of the complaint and
to produce for inspection and copying of all documents requested including, but not limited
to, the use of force video recorded by the Defendants during the cell extraction, all policies
and procedures regarding use of force, emergency health treatment, RHU operation, and also
the full employee record of each SCDC staff member involved in the aforementioned “cell
extraction.” (Doc. # 66).2

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Plaintiff failed to attach a copy of the relevant portions of the discovery material with the
motion in violation of Local Civil Rule 7, D.S.C. However, Defendants attached a copy of
Plaintiff’s discovery requests and responses along with their response to the Motion to Compel.
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Defendants filed a response to the motion asserting that they filed a motion for a
protective order with regard to Requests #4 and #7, that they are still in the process of
gathering documents responsive to requests #5 and #10 because of a delay in receiving any
documents due to the individual in possession of records being on vacation but would
provide the documents to Plaintiff once they were gathered. In response to Plaintiff’s Request
#2, Defendants assert that Plaintiff cannot view multimedia files while an inmate at Lieber
Correctional Institution but would schedule a date at Lieber for Plaintiff to review the video
of the coerced cell movement and to listen to the audio recording from the disciplinary
hearings.
A Protective Order has been granted in part with regard to Plaintiff’s Request #4 and
granted with regard to Request #7 as set forth above. Therefore, this portion of the motion
to compel is moot. As to the remaining portion of the Motion to Compel, Defendants’
responses are adequate and the motion to compel (Doc. #66) is denied. However, if
Defendants have not provided Plaintiff with the documents as indicated, Plaintiff can re-file
the Motion to Compel with regard to Requests #2, #5 and #10 within twenty days of the date
of this order.
Motion to Amend the Complaint
Plaintiff filed a Motion to Amend his Complaint stating that in his original complaint
he “used the misnomers Mr. Escalyne and Mr. Williams to include several of the Defendants
who were involved in the attack detailed in Plaintiff’s complaint.” Plaintiff asserts that he has
recently been able to gain the full names of each person and request that “Travis Esterline
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and John Williams who were both sergeants at the Broad River Correctional institution when
this attack detailed in Plaintiff’s complaint occurred, be added as Defendants for their roles
and behavior during the attack.” (Doc. #72). Plaintiff did not attach a copy of a proposed
amended complaint to his motion.
Defendants filed a response to the Motion to Amend asserting no opposition to
Plaintiff’s request to amend his complaint to name Travis Esterline. However, Defendants
assert that it appears Plaintiff is mistaken in attempting to name Defendant John Williams
in his amended complaint because Defendant John Williams was served on May 16, 2017,
and has filed an answer to Plaintiff’s complaint.
Plaintiff’s Motion to Amend the Complaint to add Defendant Travis Esterline is
granted without opposition. Plaintiff shall have twenty days from the date of this order to file
one complete amended complaint for the sole purpose of adding Travis Esterline as a party
Defendant and allegations as to this Defendant. Counsel for Defendants is directed to inform
the court and Plaintiff within five days of the date of this order if they will accept service on
behalf of Defendant Esterline.3 As Defendant John Williams has been served and filed an
answer (docs. #35 and #42), Plaintiff’s Motion to Amend the Complaint to name John
Williams as a Defendant is denied as moot. Therefore, Plaintiff’s Motion to Amend (doc.
#72) is granted in part and denied in part as set forth above.

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If Counsel for Defendants declines to accept service on behalf of Defendant Esterline,
Plaintiff has requested in his Motion to Amend that the Defendant be served a copy of the summons
and complaint via U.S. Marshal. (Doc. #72).
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Motion to Amend the Scheduling Order
On December 7, 2017, Defendants filed a third motion to amend the scheduling order.
No opposition was filed to this motion. (Doc. #89). On January 5, 2018, Defendants filed
a motion to extend the dispositive motions deadline. (Doc. #90).
Since Plaintiff’s Motion to Amend the Complaint to name Travis Esterline as a party
defendant is granted, a new scheduling order will be entered by the court once the answer to
the amended complaint is filed with the court setting deadlines for completion of discovery
and dispositive motions. Therefore, Defendants’ Motion to Amend the Scheduling Order
(doc. #89) and to extend the dispositive motions deadline (doc. #90) are Moot.
IT IS SO ORDERED.

s/Thomas E. Rogers, III_____
Thomas E. Rogers, III United
States Magistrate Judge

January 11, 2018
Florence, South Carolina

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