Donohue v. Lambert et al

Filing 412

MEMORANDUM OPINION. Signed by Chief United States District Judge Glen E. Conrad on 12/30/2015. (tvt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
JOHN DONOHUE,
Plaintiff,

v.

LT. J.D. LAMBERT, ET AL.,
Defendants.

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CASE NO. 7:13CV00397
MEMORANDUM OPINION
By: Glen E. Conrad
Chief United States District Judge

In preparation for the upcoming trial in this case, the court has reviewed Plaintiff John
Donohue’s numerous, often repetitive letters and motions “to object” to past rulings in the case,
by the court or by the magistrate judge to whom pretrial matters have been referred under 28
U.S.C. § 636(b). (See, e.g., ECF Nos. 138, 193, 221, 222, 237, 249, 251, 256, 271, 272, 276,
299, 300, 302, 306, 315, 318, 319, 335, and 352.) See also Fed. R. Civ. P. 72(a) (authorizing
objections to magistrate judge’s orders on nondispositive matters for review by district judge). 1
For reasons stated herein, Donohue’s objections will be overruled.
By opinion and order entered September 25, 2014, the court granted in part and denied in
part the defendants’ motion for summary judgment. Specifically, the court granted the motion as
to:
all claims concerning the use of OC gas and the claim that Defendant Rose failed
to intervene at the shower on June 6, 2013; all claims against Warden Mathena
and Officer Adams, who may be terminated as parties; and all claims concerning
events on May 11 and 20, 2014.

1

As stated, Donohue has also filed many objections to orders issued by the undersigned. In so doing, he
apparently relies on Rule 46, contained in the section of the Federal Rules of Civil Procedure governing trials, rather
than as an appropriate vehicle to seek reconsideration of a written order. Fed. R. Civ. P. 46. Nevertheless, the
undersigned has considered these objections and concludes that they must be overruled.

1

(Order ¶ 1, ECF No. 89.) Because the court has granted summary judgment on these claims,
Donohue’s objections seeking to reinstate these claims or to obtain discovery related to them are
overruled. 2
That same order also summarily dismissed without prejudice all claims raised in
Donohue’s second motion to amend (ECF No. 80), alleging retaliation, harassment, and due
process violations, under 28 U.S.C. § 1915A(b)(1) as frivolous, and directed the clerk to
terminate all defendants to these claims as parties. Donohue’s objections regarding this portion
of the order fail to persuade the court that the dismissal of these claims was erroneous.
Therefore, his objections seeking to reinstate or engage in discovery related to these claims are
overruled.
The September 25, 2014 order denied summary judgment as to Donohue’s other claims
of excessive force and failure to intervene arising from events on June 6 and 7, 2013, and
directed that the case be scheduled for a jury trial on the remaining claims, pursuant to
Donohue’s demand for a jury trial in his complaint. (See Compl. 14, ECF No. 1.) The order also
added new defendants. After defense counsel withdrew, based on conflicts of interest, five new
defense attorneys entered the case, filed answers or supplemental answers, and sought to engage
in discovery, on behalf of their clients. Donohue then notified the court that he had withdrawn
his jury demand. Accordingly, the court redesignated the trial scheduled for August 31 and
September 1, 2015, as a bench trial and referred the matter to the Hon. Pamela Meade Sargent,
United States Magistrate Judge. Defendant Payne objected to this change on the ground that he
had not consented to Donohue’s withdrawal of his jury demand, as required under Rule 38(d).
2

Donohue contends that the claims are still before the court because the order only directed that Mathena
and Adams “may be terminated” as parties and did not “terminate” the claims. The grant of summary judgment
effectively removed the claims from the case to be tried, however. See Fed. R. Civ. P. 56(a). This fact was not
effected in any way by the court’s additional statement regarding the termination of parties, which was an
administrative directive to the clerk related only to the court’s docket.

2

On that ground, the court ruled that the case would be tried before a jury in Big Stone Gap,
Virginia, the division of this court where the cause of action arose. Donohue’s objections to
having his case tried to a jury or to having it tried in Big Stone Gap, are overruled as without
merit.
Donohue also objects to the magistrate judge’s continuation of the trial until January
2016 and the scheduling orders that allowed the defendants to file second motions for summary
judgment before trial. Donohue’s objections on this issue rest on his inaccurate belief that Rule
56 of the Federal Rules of Civil Procedure allows parties to file only one motion for summary
judgment.

Rule 56(b) provides, however, that absent a local rule or court order setting a

particular deadline for such motions, a party may move for summary judgment “at any time until
30 days after the close of all discovery.” On June 23, 2015, Judge Sargent entered a scheduling
order requiring any further motions for summary judgment to be filed at least 75 days before
trial, or by October 21, 2015. Defendants Swiney and Rose filed second motions before this
date, and the court has already granted these motions by separate order. On October 16 and 21,
2015, Judge Sargent granted other defendants’ requests to extend the summary judgment
deadline until October 30, because a deposition transcript had been delayed. The remaining
second motions for summary judgment were timely filed on October 30, 2015. Therefore
Donohue’s objections to the court’s consideration of the defendants’ second motions for
summary judgment are overruled as without merit.
Donohue also objects to the court’s permitting the parties to file amended answers and
motions in limine. Finding no merit to these objections, Donohue’s objections are overruled.
See, e.g., Rule 15(a)(2) (providing court should freely grant leave for amendment of a pleading
before trial when justice so requires).

3

Donohue has filed numerous motions, seeking to obtain copies of Virginia Department of
Corrections (“VDOC”) security policies and video footage related to the events on June 6 and 7,
2013 that are the subject of his remaining claims in this case. Donohue has filed repeated
objections to the court’s various orders on this issue. Indeed, Judge Sargent denied his recent
motion regarding this discovery issue on December 29, 2015, just days before the scheduled
trial. The court has reviewed the record and is satisfied that the defendants have complied with
the court’s orders regarding Donohue’s discovery requests and the materials to be provided to
him, or that they will make those materials available to the court at trial. 3 The court is also
satisfied that the defendants have allowed Donohue to view all the video footage related to his
remaining claims that was filmed by a camcorder and all available video footage related to his
claims that was filmed by a surveillance camera. Therefore, Donohue’s continuing objections
that he requires additional discovery or that defendants have not complied with past discovery
orders are overruled.
By order entered December 9, 2015, Judge Sargent ruled that Donohue has preserved a
spoliation of evidence argument with regard the defendants’ failure to preserve the rapid eye
surveillance video recordings from June 6-7, 2013. Therefore, before trial begins on January 4,
2015, the court will hear, and the parties should come prepared to present, testimony, evidence,
and argument on the issue of spoliation of this evidence. Then, the court will determine whether
any spoliation sanction or instruction to the jury is warranted. In all other respects, however,
Donohue’s past objections to orders on the issue of spoliation or related matters are overruled.

3

By order entered June 17, 2014, the magistrate judge directed the defendants to preserve any available
video footage and to bring to any future trial the security policies that Donohue had requested. (See ECF No. 75.)

4

In accordance with the foregoing, Donohue’s outstanding objections to the prior rulings
of the court are overruled. An appropriate order will issue this day.
The parties are advised that the court will rule separately on their objections to the
December 20, 2015, report and recommendation of the magistrate judge, regarding the pending
second motions for summary judgment, and on their pending motions in limine.
The clerk will send a copy of this memorandum opinion and the accompanying order to
Donohue, by FAX to the records office at Red Onion State Prison, and to counsel of record for
the defendants, by ECF notification.
ENTER: This 30th day of December, 2015.

/s/ Glen E. Conrad
_________________________________
Chief United States District Judge

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