Troupe v. Washington State Penitentiary et al

Filing 151

ORDER ENTERING RULINGS FROM APRIL 22, 2015 TELEPHONIC MOTION HEARING, denying 134 Motion to Compel and Motion for Preliminary Injunction; denying 136 Motion to Compel; denying 137 Motion to Take Deposition from Defendants. Signed by Senior Judge Edward F. Shea. cc: Mr. Troupe. (SK, Case Administrator)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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Plaintiff,

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v.

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KENNITH R. BRODHEAD, LINDA W.
BELANGER, KEVIN WALKER, and
CHRISTOPHER BOWMAN,

Plaintiff,
v.

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WALTER END,
Defendant.

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No. 13-CV-5038-EFS

DAVID TROUPE,
Plaintiff,

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v.

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No. 13-CV-5036-EFS

DAVID TROUPE,

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ORDER ENTERING RULINGS FROM
APRIL 22, 2015 TELEPHONIC MOTION
HEARING

Defendants.

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No. 13-CV-5028-EFS

DAVID TROUPE,

KATRINA SUCKOW, BONNIE KLAHN,
THOMAS ROE, and DANA O. FAYETTE,

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Defendants.

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A hearing occurred in the above-captioned matters on April 22,

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2015.

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telephonically

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Assistant Attorney General Amy Clemmons appeared telephonically on

Plaintiff

ORDER - 1

David

from

the

Troupe,

who

Washington

represents
State

himself,

Penitentiary

appeared
(WSP).

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behalf of all Defendants in all cases.

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Before the Court were the

following motions:
1. Plaintiff’s Injunction Request and Motion to Compel filed

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April 3, 2015.

13-CV-5028, ECF No. 134; 13-CV-5036, ECF

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No. 69; 13-CV-5038, ECF No. 65.

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2. Plaintiff’s Motion to Compel Amy Clemmons to Destroy all

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Non-Essential Medical Records of Plaintiff’s filed April

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10, 2015.

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72; 13-CV-5038, ECF No. 67.
3. Plaintiff’s

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13-CV-5028, ECF No. 136; 13-CV-5036, ECF No.

Motion

to

Allow

Deposition

Under

Rule

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32(b)(3)(a) of all Defendants filed April 10, 2015.

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CV-5028, ECF No. 137; 13-CV-5036, ECF No. 73; 13-CV-5038,

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ECF No. 68.1
I.

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Federal

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Rule

of

13-

PRELIMINARY MATTERS

Civil

Procedure

12(f)

permits

the

Court

to

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“strike from a pleading . . . any redundant, immaterial, impertinent,

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or scandalous matter.”

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12(f)(1), the Court struck paragraph 8 on page 2, paragraph 13 on page

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3, and paragraph 1 on page 4 from Plaintiff’s Motion to Compel Amy

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Clemmons to Destroy all Non-Essential Medical Records of Plaintiff’s,

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13-CV-5028, ECF No. 136; 13-CV-5036, ECF No. 72; 13-CV-5038, ECF No.

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67.

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//

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/

At the hearing, “on its own,” Fed. R. Civ. P.

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The Court declined to consider this motion at the hearing because
Defendants had not yet had the chance to respond, but the Court now considers
the motion because Defendants responded on April 24, 2015. ECF No. 77.

ORDER - 2

II.

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PLAINTIFF’S INJUNCTION REQUEST AND MOTION TO COMPEL

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Plaintiff asks the Court to issue an injunction or an order to

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compel WSP employees to allow him access to his legal work and to

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permit Plaintiff to swap out legal work at least two times a week.

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also requests that the Court warn Ms. Clemmons and her clients that

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sanctions may be imposed if they deliberately prevent Plaintiff from

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accessing his legal work.
In

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response,

Defendants

Supervisor Charles Pease.

filed

a

declaration

by

Custody

He

Unit

Mr. Pease states that Mr. Troupe is subject

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to the same property requirements as other inmates.

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allowed to keep one box of legal materials in his cell at a time and

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may swap the legal materials in his cell for other legal materials

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kept in storage.

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and property searches are conducted on a first-come, first-served

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basis.

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materials.

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while they were being searched after his return to WSP.

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and 16, he was allowed to access all of his materials to organize and

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label them.

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for “any 10” more and also returned 11 folders and requested 21 more.

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He received the requested materials on March 3rd.

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he returned three folders and requested 15 more, which he received on

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March 16th (there was a delay because WSP had to clarify which folders

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he wanted).

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received one infraction for keeping contraband in his legal box in his

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cell.

ORDER - 3

Mr. Troupe is

Property is searched each time it is transferred,

Mr. Pease states that Mr. Troupe has four boxes of legal
He was without his legal materials from February 11–27
On March 3

On February 27, Mr. Troupe asked to exchange 10 folders

On that same day,

Since his return to WSP in February, Mr. Troupe has

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During the hearing, Mr. Troupe alleged that Mr. Pease lied in

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his declaration and that Mr. Troupe has proof that the declaration was

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falsified.

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records on April 2, not April 1 and 2 as Mr. Pease declared.

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Troupe also stated that another WSP employee swears he has not given

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Mr. Troupe any compact discs (CD) to review, even though Mr. Pease

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declared that Mr. Troupe had access to CDs on March 20.

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Troupe submitted a reply related to his Motion to Compel Amy Clemmons

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to Destroy all Non-Essential Medical Records of Plaintiff’s, 13-CV-

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5028, ECF No. 145; 13-CV-5036, ECF No. 82; 13-CV-5038, ECF No. 75, and

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filed several new motions, see, e.g., 13-CV-5028, ECF Nos. 143, 144 &

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146, he did not submit a reply or any other documentation in support

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of his Injunction Request and Motion to Compel and the allegations he

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made at the hearing.

Mr. Troupe stated that he only had access to his medical
Mr.

Although Mr.

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Having carefully reviewed all of the parties’ submissions and

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listened to their oral argument during the hearing, the Court is

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satisfied that the Department of Corrections’s (DOC) policies are

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reasonable and are being appropriately followed.

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Pease’s declaration to be credible.

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Troupe has adequate access to his legal work, taking into account the

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necessary

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Though it understands the challenges Plaintiff faces in pursuing this

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litigation, the Court notes that such challenges are inherent when an

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individual chooses to litigate multiple lawsuits simultaneously.

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safety

measures

and

The Court finds Mr.

The Court concludes that Mr.

appropriate

penological

objectives.2

The

The fact that Mr. Troupe recently received an infraction for keeping
contraband in his legal box demonstrates the continued necessity of
heightened safety measures and supports the Court’s decision not to interfere
with DOC’s safety procedures.

ORDER - 4

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Court has extended time when appropriate to ensure Mr. Troupe is not

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denied access to the courts.

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Injunction Request and Motion to Compel is denied.

For the above reasons, Plaintiff’s

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III. PLAINTIFF’S MOTION TO COMPEL AMY CLEMMONS TO DESTORY ALL NON-

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ESSENTIAL MEDICAL RECORDS OF PLAINTIFF’S
Plaintiff argues that Ms. Clemmons is in possession of medical

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records

other

than

those

necessary

for

the

defense.

Defendants

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respond that the records were produced by stipulation, are subject to

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an agreed protective order, and will be destroyed after the litigation

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is complete.

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motion.

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No. 76, which the Court denied, finding that his records were relevant

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to the litigation, that they were adequately protected by the Joint

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Agreed Protective Order, and that there is no evidence Ms. Clemmons

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has failed to abide by the protective order.

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For

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Clemmons to Destroy all Non-Essential Medical Records of Plaintiff’s

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is also denied.

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Plaintiff previously filed a similar motion, 13-CV-5028, ECF

these

IV.

Plaintiff’s reply reiterates the arguments made in his

same

reasons,

Plaintiff’s

present

13-CV-5028, ECF No. 87.
Motion

to

Compel

Amy

PLAINTIFF’S MOTION TO ALLOW DEPOSITION UNDER RULE 32(B)(3)(A)

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Plaintiff asks the Court to allow him to depose Defendants.

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Defendants respond that Plaintiff’s request does not comply with the

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Federal Rules of Civil Procedure because he did not provide written

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notice to the opposing

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arranged for an appropriate person before whom depositions may be

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taken, Fed. R. Civ. P. 28, and did not confer with defense counsel

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before filing this motion, Fed. R. Civ. P. 37(a)(2)(A).

ORDER - 5

party, Fed. R.

Civ. P.

30(b)(1), has

not

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Although Plaintiff cites Rule 32(b)(3)(A), the Court construes

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his motion to reference Rule 30(b)(3)(A) because Rule 32(b)(3)(A) does

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not exist.

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the party noticing a deposition must state the method of recording the

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deposition in the notice and must pay the recording costs.

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Civ. P. 30(b)(3)(A).

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requires

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Defendants.

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deposed is confined in prison, but does not address the situation

See Fed. R. Civ. P. 32.

that

the

Rule 30(b)(3)(A) provides that

Fed. R.

Neither Rule 30 nor the Court’s Scheduling Order
Court

give

permission

for

Plaintiff

to

depose

Rule 30 requires the Court’s leave if the person being

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where the person conducting the deposition is imprisoned.

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Civ. P. 30(a)(2)(B).
If

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Plaintiff

seeks

to

take

Defendants’

See Fed. R.

depositions,

he

must

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consult with defense counsel and make arrangements that comply with

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the Federal Rules of Civil Procedure.

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Plaintiff’s

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However, because discovery has closed in both 13-CV-5036 and 13-CV-

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5038, Plaintiff’s motion is denied in these cases.

motion

is

denied

V.

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as

No Court action is required, so

moot

in

case

number

13-CV-5028.3

SCHEDULING MATTERS

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As the Court informed Mr. Troupe at the hearing, it finds no

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reason at present to revisit the timelines set forth in its scheduling

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orders.

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either party and a showing of good cause.

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presently.

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period in 13-CV-5036 and 13-CV-5038 because the discovery cutoff has

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already passed and no motions for extension were filed.

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The Court has previously extended deadlines upon motion of

Additionally, the Court will not re-open the discovery

The discovery cutoff in 13-CV-5028
Scheduling Order, ECF No. 130.

ORDER - 6

No such motions are pending

is

May

6,

2015.

Second

Amended

VI.

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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED:

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1.

Paragraph

8

on

page

2,

paragraph

13

on

page

3,

and

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paragraph 1 on page 4 of Plaintiff’s Motion to Compel Amy

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Clemmons to Destroy all Non-Essential Medical Records of

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Plaintiff’s, 13-CV-5028, ECF No. 136; 13-CV-5036, ECF No.

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72; 13-CV-5038, ECF No. 67 are STRICKEN.

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2.

5028, ECF No. 134; 13-CV-5036, ECF No. 69; 13-CV-5038, ECF

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No. 65, is DENIED.

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Plaintiff’s Injunction Request and Motion to Compel, 13-CV-

3.

Plaintiff’s Motion to Compel Amy Clemmons to Destroy all

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Non-Essential Medical Records of Plaintiff’s, 13-CV-5028,

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ECF No. 136; 13-CV-5036, ECF No. 72; 13-CV-5038, ECF No.

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67, is DENIED.

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4.

Plaintiff’s

Motion

to

Allow

Deposition

Under

Rule

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32(b)(3)(a) of all Defendants in case number 13-CV-5028,

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ECF No. 137, is DENIED AS MOOT.

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Allow Deposition Under Rule 32(b)(3)(a) of all Defendants

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in case numbers 13-CV-5036, ECF No. 73, and 13-CV-5038, ECF

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No. 68, is DENIED.

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IT IS SO ORDERED.

Plaintiff’s Motion to

The Clerk’s Office is directed to enter this

Order and provide copies to counsel and Mr. Troupe.
DATED this

27th

day of April 2015.

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s/Edward F. Shea
EDWARD F. SHEA
Senior United States District Judge

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Q:\EFS\Civil\2013\5028.5036.5038.enter.rulings.4.22.15.lc2.docx

ORDER - 7