Ward v. Blackwell et al

Filing 70

ORDER: Plaintiff's Motion for Extension of Time (Document # 49 )is GRANTED and Motion to Compel (Document # 53 ) is DENIED as set forth above. Plaintiff must file a response to Defendants' Motion for Summary Judgment (Document # 58 ) within ten days of the date of this order. Failure to file a response may result in a recommendation that Plaintiff's case be dismissed for failure to prosecute. IT IS SO ORDERED. Signed by Magistrate Judge Thomas E Rogers, III on 12/21/2017.(dsto, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
MATTHEW J. WARD,

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Plaintiff,
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-vs)
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JAMES BLACKWELL, Asst. Warden;
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TAMARA RAVENELL, Classification;
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and JACEK KICINSKI, Officer;
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Defendants.
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___________________________________ )
I.

Civil Action No.: 4:17-cv-0367-HMH-TER

ORDER

INTRODUCTION
Plaintiff, who is proceeding pro se, brings this action under 42 U.S.C. § 1983, alleging that

Defendant Jacek Kicinski violated his constitutional rights by failing to protect him during a prison
fight and Defendants Tamara Ravenell and James Blackwell failed to properly supervise Kicinski.
Presently before the court is Plaintiff’s Motion for Extension of Time (Document # 49) and Motion
to Compel (Document # 53). 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
The relief sought in Plaintiff’s motion for extension of time is not entirely clear. He states that

he served requests to admit and other discovery requests but had only received responses to the
requests to admit. Plaintiff first states that he seeks an extension of time for “file all discovery requests
pleading in this matter.” He later states that he needs an additional twenty days to “file responses
pleading in this matter and to discovery to have all motions on time.” Finally, he states that the
“additional time is required to investigate and adequately response to Defendant Kicinski allegations.

It is anticipated that an additional twenty days will allow ample time for plaintiff to respond to
defendants Kicinski responses to Plaintiff’s requests to admit.” Because an additional twenty days
would not have been sufficient to allow Plaintiff to serve any new discovery requests, given the
scheduling order’s requirement that “all discovery requests shall be served in time for the responses
thereto to be served by [the deadline],” see Scheduling Order (Document # 39), it appears that Plaintiff
seeks additional time to review Defendants’ discovery responses and file any necessary motions.
Within the twenty days requested by Plaintiff, he subsequently filed a motion to compel
Defendants Blackwell, Ravenell, and Kicinski to respond to his requests for production 1-4 and 8-10.
Defendants filed a response in opposition to Plaintiff’s motion stating that Plaintiff’s discovery
requests were directed only toward Kicinski and, thus, his objections to each of the requests at issue
were appropriate because he is no longer employed by the South Carolina Department of Corrections
and none of the requested documents were within his possession, custody or control. Defendants assert
that Plaintiff did not serve any discovery requests on Blackwell or Ravenell. The court entered an
order directing Plaintiff to file any evidence that he served discovery requests on Blackwell or
Ravenell, but Plaintiff did not respond to the order.
Rule 34(a) permits a party to serve on any other party a request for the production of
documents or things within that party’s “possession, custody or control.” Fed.R.Civ.P. 34(a).
Documents are deemed to be within the possession, custody, or control of a party if the party has actual
possession, custody, or control or the legal right to obtain the documents on demand. See Bleecker v.
Standard Fire Ins. Co., 130 F.Supp.2d 726, 739 (E.D.N.C. 2000) (“[I]n order for the material to be
discoverable, defendant must have some type of legal right to the material plaintiff seeks to discover.”).
The documents requested by Plaintiff include his medical records while in SCDC custody, incident
reports regarding the incident at issue here as well as other inmate attacks, documents relating to

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disciplinary proceedings against Defendants by SCDC, and “SCDC offender management system
disciplinary system display (sic) plaintiff offense history.” See Defendant Kicinski’s Responses to
Plaintiff’s Requests for Production (Ex. to Pl. Motion to Compel). “Former employees of government
agencies do not have ‘possession, custody, or control’ of documents held by their former employers.”
Lowe v. D.C., 250 F.R.D. 36, 38 (D.D.C. 2008); see also Bryant v. Armstrong, 285 F.R.D. 596, 607
(S.D. Cal. 2012) (denying motion to compel a former corrections officer to produce law library
scheduling policies). Because Defendant Kicinski does not have possession, custody, or control of the
documents requested by Plaintiff, his objections were proper and the court cannot compel him to
produce the requested documents. Accordingly, Plaintiff’s motion to compel is denied. However, his
motion for extension of time is granted to the extent he needed additional time to file the motion to
compel.
The court notes that Plaintiff has not filed a response to Defendants’ motion for summary
judgment. Plaintiff’s response to Defendants’ motion is due within ten days of the date of this order.
III.

CONCLUSION
For the reasons discussed above, Plaintiff’s Motion for Extension of Time (Document # 49)

is GRANTED and Motion to Compel (Document # 53) is DENIED as set forth above. Plaintiff must
file a response to Defendants’ Motion for Summary Judgment (Document # 58) within ten days
of the date of this order. Failure to file a response may result in a recommendation that
Plaintiff’s case be dismissed for failure to prosecute.
IT IS SO ORDERED.

Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge
December 21, 2017
Florence, South Carolina

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