Douty v. Rubenstein et al

Filing 100

MEMORANDUM OPINION AND ORDER granting in part and denying in part plaintiff's 65 MOTION to Compel as more fully set forth herein; directing Defendants to produce any documents responsive to the requests as specifically directed herein by 4/24/2015. Signed by Magistrate Judge R. Clarke VanDervort on 4/6/2015. (cc: Plaintiff; counsel of record) (tmh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
FRED D. DOUTY,
Plaintiff,
v.
JIM RUBENSTEIN, et al.,
Defendants.

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Civil Action No. 2:13-32832

MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff’s second “Motion to Compel Discovery” (Document
No. 65), filed on January 30, 2015. Having thoroughly considered the issues raised by this Motion,
the undersigned concludes that Plaintiff’s Motion (Document No. 65.) should be granted in part and
denied in part.
STANDARD
The Federal Rules of Civil Procedure contemplate that in conjunction with disclosure, civil
discovery is a process of elucidation and clarification of facts and circumstances relevant to claims
and defenses as presented in pleadings through which the claims and defenses are validated, defined
and shaped and issues are sharpened and refined for consideration at the dispositive motion stage
and trial of a civil case. The civil discovery process is to be engaged in cooperatively. Violation of
the Rules undermines the process.
Rule 26(b)(1) of the Federal Rules of Civil Procedure provides as follows:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to
any party’s claim or defense – including the existence, description, nature, custody,
condition, and location of any documents or other tangible things and the identity
and location of persons who know of any discoverable matter. For good cause, the
court may order discovery of any matter relevant to the subject matter involved in
the action. Relevant information need not be admissible at the trial if the discovery

appears reasonably calculated to lead to the discovery of admissible evidence.
Discovery is generally limited therefore to nonprivileged information which is relevant to any
party’s claims or defenses, and relevant information is information which is admissible at trial or
might reasonably lead to the discovery of information which is admissible at trial. See State ex rel.
Erie Ins. Property and Cas. Co. v. Mazzone, 218 W.Va. 593, 596, 625 S.E.2d 355, 358 (2005)(“A
threshold issue regarding all discovery requests is relevancy. This is so because ‘[t]he question of
the relevancy of the information sought through discovery essentially involves a determination of
how substantively the information requested bears on the issues to be tried.’” quoting Syllabus Point
4 of State Farm Mut. Auto. Ins. Co. v. Stephens, 188 W.Va. 622, 425 S.E.2d 577 (1992).)
When parties request relevant nonprivileged information in Interrogatories under Rules 33,
their request “must be answered:(A) by the party to whom they are directed.” Fed.R.Civ.P. 33(b)(1).
Federal Rule of Civil Procedure 33(b)(3) through (5) state further as follows:
(3) Answering Each Interrogatory. Each Interrogatory must, to the extent it is not
objected to, be answered separately and fully in writing under oath.
(4) Objections. The grounds for objecting to an interrogatory must be stated with
specificity. Any ground not stated in a timely objection is waived unless the court,
for good cause, excuses the failure.
(5) Signature. The person who makes the answers must sign them, and the attorney
who objects must sign any objections.
“Generic non-specific objections will not suffice when posed in response to reasonable
Interrogatories. Objections to reasonable Interrogatories must be specific to each Interrogatory and
explain or demonstrate precisely why or how the party is entitled to withhold from answering.” Vica
Coal Co., Inc., v. Crosby, 212 F.R.D. 498, 503 (S.D.W.Va. 2003). The Court requires strict
adherence to these Rules. Saria v. Massachusetts Mutual Life Insurance Company, 228 F.R.D. 536,
538 (S.D.W.Va. 2005).

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When parties request relevant nonprivileged information in a Request for Production or
Inspection of Documents under Rule 34, “[t]he party to whom the request is directed must respond
in writing . . ..” Fed.R.Civ.P. 34(b)(2)(A). Federal Rule of Civil Procedure 34(b)(2)(B) and (C)
provide as follows:
(B) Responding to Each Item. For each item or category, the response must either
state that inspection and related activities will be permitted as requested or state an
objection to the request, including the reasons.
(C) Objections. An objection to part of a request must specify the part and permit
inspection of the rest.
Objections to Rule 34 requests must be stated specifically, and boilerplate objections regurgitating
words and phrases from Rule 26 are completely unacceptable. Frontier-Kemper Constructors, Inc.,
v. Elk Run Coal Company, Inc., 246 F.R.D. 522, 528 - 529 (S.D.W.Va. 2007).
The Rules anticipate that each objection to a discovery request will state precisely why the
request is objectionable in view of the claims and defenses presented in the litigation. In most if not
all cases, an objection to a discovery request in conformity with the Rules will contain (1) a recital
of the parties’ claims and defenses, (2) a summary of the applicable statutory and/ or case law upon
which the parties’ claims and defenses are predicated including the elements of each claim or
defense, (3) a discussion of Court decisions considering the breadth or scope of discovery and any
limitations upon discovery in the same or a similar type of case and (4) a statement respecting how
and/or why the request seeks information which is irrelevant or will not likely lead to the discovery
of relevant information or is vague, overly broad, burdensome or interposed for an improper
purpose. Failure to state objections specifically in conformity with the Rules will be regarded as a
waiver of those objections. Sabol v. Brooks, 469 F.Supp.2d 324, 328 (D.Md. 2006).
Pursuant to Rule 36, “[a] party may serve on any other party a written request to admit, for

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purposes of the pending action only, the truth of any matters within the scope of Rule 26(b)(1)
relating to: (A) facts, the application of law to fact, or opinions about either; and (B) the genuineness
of any described documents.” Fed.R.Civ.P. 36(a)(1). Federal Rule of Civil Procedure 36(a)(4) and
(5) provide as follows:
(4) Answer. If a matter is not admitted, the answer must specifically deny it or state
in detail why the answering party cannot truthfully admit or deny it. A denial must
fairly respond to the substance of the matter; and when good faith requires that a
party qualify an answer or deny only a part of a matter, the answer must specify the
part admitted and qualify or deny the rest. The answering party may assert lack of
knowledge or information as a reason for failing to admit or deny only if the party
states that it has made reasonably inquiry and that the information it knows or can
readily obtain is insufficient to enable it to admit or deny.
(5) Objections. The grounds for objecting to a request must be stated. A party must
not object solely on the ground that the request presents a genuine issue for trial.
Additionally, Rule 36(a)(6) allows a party who has served a request for admission to move the court
“to determine the sufficiency of an answer or objection. Unless the court finds an objection justified,
it must order that an answer be served.” Fed.R.Civ.P. 36(a)(6).
Federal Rule of Civil Procedure 37(a)(1) provides that if a party fails to cooperate in
discovery, “[o]n notice to other parties and all affected persons, a party may move for an order
compelling disclosure or discovery. The motion must include a certification that the movant has in
good faith conferred or attempted to confer with the person or party failing to make disclosure or
discovery in an effort to obtain it without court action.” Rule 37(a)(4) provides that an incomplete
answer or response “must be treated as a failure to . . . answer, or respond.” Rule 37 (a)(5)(A) – (C)
provide as follows:
(A) If the Motion is Granted (or Disclosure or Discovery is Provided After Filing).
If the motion is granted – or if the disclosure or requested discovery is provided after
the motion was filed – the court must, after giving an opportunity to be heard, require
the party or deponent whose conduct necessitated the motion, the party or attorney
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advising that conduct, or both to pay the movant’s reasonable expenses incurred in
making the motion, including attorney’s fees. But the court must not order this
payment if:
(i)
(ii)
(iii)

the movant filed the motion before attempting in good faith to obtain
the disclosure or discovery without court action;
the opposing party’s nondisclosure, response, or objection was
substantially justified; or
other circumstances make an award of expenses unjust.

(B) If the Motion is Denied. If the motion is denied, the court may issue any
protective order authorized under Rule 26(c) and must, after giving an opportunity
to be heard, require the movant, the attorney filing the motion, or both to pay the
party or deponent who opposed the motion its reasonable expenses incurred in
opposing the motion, including attorney’s fees. But the court must not order this
payment if the motion was substantially justified or other circumstances make an
award of expenses unjust.
(C) If the Motion is Granted in Part and Denied in Part. If the motion is granted in
part and denied in part, the court may issue any protective order authorized under
Rule 26(c) and may, after giving an opportunity to be heard, apportion the reasonable
expenses of the motion.
ANALYSIS
A.

Request for Admission Nos. 12 and 13.
REQUEST FOR ADMISSIONS NO. 12. Admit the plaintiff produced authentic
documents marked exhibit’s P - S, attached with his Amended Complaint, from
medical service Wexford Health, Inc.
RESPONSE: This particular request for admission is incorrectly directed to this
Defendant. This Defendant has no authority or permission to review, analyze or
comment upon the Plaintiff’s medical records at any time.
REQUEST FOR ADMISSIONS NO. 13. Admit the documents stated in Request No.
12, above, both nurses and/or doctors diagnosed the plaintiff with first degree
chemical burns.
RESPONSE: See Response to Request for Admission No. 12.
In his Motion to Compel, Plaintiff first argues that Defendant Andrew Hudson’s response

to Plaintiff’s Requests for Admission is insufficient and needs to be supplemented. (Document No.
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65.)
In Response, Defendants argue that Defendant Hudson does not have “the opportunity to
touch, review or interpret any of the Plaintiff’s medical records.” (Document No. 84, p. 2.)
Defendants note that Exhibits P - S are medical records and “[t]hese medical records are under the
care, custody and control of Wexford Health, Inc., a vendor of the WV DOC.” (Id.) Defendants
contend that Defendant Hudson “has no background or understanding to enable him to respond to
Request No. 12 admitting that Exhibits P - S are authentic documents.” (Id.) Additionally,
Defendants claim that Defendant Hudson “has no expertise in which to admit Request for Admission
No. 13 concerning an alleged diagnosis that the Plaintiff sustained first degree chemical burns.” (Id.)
Defendants further note that correctional officers are not required to review or interpret medical
records as part of their job responsibilities. (Id.) Defendants advise Plaintiff that “Wexford Health,
Inc., may admit the authenticity of such documents or interpret what the documents reveal.” (Id.)
Defendants, therefore, argue that Defendant Hudson should not be required to supplement his
responses to No. 12 and 13 of Plaintiff’s Requests for Admission. (Id.)
In Reply, Plaintiff argues that “prison officials cannot claim they do not know the answer
unless they state that they have made a good-faith effort to secure the information, or materials
necessary to provide an admit or deny to the request.” (Document No. 95, p. 1.) Plaintiff states that
he “has provided defendants with the documents in question,” and “defendants did not make a good
faith effort to secure the information to provide complete answers.” (Id.) Plaintiff contends that
Defendants could have taken the medical records to Wexford Health, Inc., to have them state
whether they are authentic. (Id.) Plaintiff further asserts that Defendants could have spoken directly
with the health care professional that made the diagnosis. (Id.)

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The undersigned finds Plaintiff’s above objection without merit. Rule 36(a)(4) provides that
“[t]he answering party may assert lack of knowledge or information as a reason for failing to admit
or deny only if the party states that it has made reasonable inquiry and that the information it knows
or can readily obtain is insufficient to enable it to admit or deny.” Fed. R. Civ. P. Rule 36(a)(4).
Clearly, Plaintiff seeks Defendant Hudson’s admission of specific facts that are outside Defendant
Hudson’s knowledge and expertise. It is undisputed that Defendant Hudson is a Correctional Officer
at MOCC. Clearly, the authenticity of medical records or a medical diagnosis would be outside the
expected knowledge, experience, and expertise of a correctional officer. Defendant Hudson is not
required to review Plaintiff’s medical records or contact Plaintiff’s health care providers so that he
may answer Plaintiff’s Request for Admission concerning specific facts that are outside his
knowledge and expertise as a correctional officer. It is hereby ORDERED that Plaintiff’s Motion
to Compel as to Request for Admission Nos. 12 and 13 is DENIED.
B.

Third Request for Production of Documents No. 3.
REQUEST FOR PRODUCTION NO. 3. Any and all documents from your oleoresin
capsicum and tear gas supplier from January 1, 2012, to the date of your response.
RESPONSE: Sergeant Richard Toney is in charge of ordering oleoresin capsicum
for the West Virginia Division of Corrections. At this time, a search is still being
made by these Defendants as to what types of documents, if any, might be made
available to the Plaintiff in this civil action. Accordingly, this particular request for
production of documents will be supplemented as soon as practicable, if documents
responsive to this request are located.
In his Motion to Compel, Plaintiff argues that the requested information is relevant.

(Document No. 65, pp. 4 - 5.) Plaintiff explains that the information is relevant as to the following:
(1) “[I]s there a contract between MOCC and/or WVDOC and the oleoresin capsicum/tear gas
supplier, and if so, exactly what are those stipulations?;” (2) Was the use of said chemicals more

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prevalent at certain time than others; and if so, were the policies or customs martial law, state of
emergency, and/or no efforts to temper in affect during those times;” and (3) “[W]hat are the
contents in these chemicals - extracts used in pepper sprays varies widely among manufacturers,
from 12% to 12.6% - and is there any directions, instructions, and/or warnings directly related to the
discharge of canister contents.” (Id., p. 5.) Plaintiff explains that evidence of the habit of a person
or routine practice of an organization is relevant to prove that the conduct of the person or
organization on a particular occasion was in conformity with the habit or routine practice. (Id.)
In Response, Defendants argue that it is not appropriate for them to respond further to
Plaintiff’s above Request for Documents. (Document No. 84, pp. 2 - 3.) Defendants explain that they
disclosed to Plaintiff that Sergeant Richard Toney is in charge of ordering oleoresin capsicum for
the WVDOC. (Id., p. 2.) Defendants state that they “are at a loss as to what type of documents
should be supplied to Plaintiff in this instance.” (Id.) Although Plaintiff “lists numerous reasons
why he believes he ought to be entitled to receive various types of documents involving oleoresin
capsicum,” Defendants argue that “Plaintiff’s request for any and all documents concerning
oleoresin capsicum is so broad and ambiguous that it is impossible for these defendants to respond
to this discovery request in a cogent manner.” (Id., p. 3.)
In Reply, Plaintiff argues that Defendants acknowledge they purchased oleoresin capsicum
from Aerko International. (Document No. 95, p. 2.) Plaintiff states that Aerko’s website states that
it is a “contract aerosol manufacturer.” (Id.) Finally, Plaintiff argues that he is entitled to any
handling or warning instructions that are relevant to the oleoresin capsicum. (Id.)
Regarding Plaintiff’s Request for Production No. 3 seeking documents from Defendants’
oleoresin capsicum and tear gas supplier, the Court deems certain portions of the request to be

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relevant. In his Motion, Plaintiff explains that he is seeking a copy of Defendants’ contract with the
oleoresin capsicum supplier and a copy of the ingredients and product warnings from the oleoresin
capsicum supplier. The undersigned finds that the oleoresin capsicum supplier’s ingredient list and
product warning are relevant to Plaintiff’s claim and should be produced. The Court notes that
Plaintiff alleges that he suffered injuries, such as first degree burns, due to Defendants’ use of the
oleoresin capsicum spray. To the extent Plaintiff is requesting a copy of the contract between the
WVDOC/SRJ and the oleoresin capsicum supplier, the Court finds such a contract to be irrelevant.
To the extent Plaintiff generally requests “any and all documents from your oleoresin capsicum and
tear gas supplier,” the Court finds the request to be overly broad and irrelevant. It is therefore hereby
ORDERED that Plaintiff’s Motion to Compel as to the Third Request for Production Number 3 is
GRANTED in part and DENIED in part. Defendants shall produce the oleoresin capsicum
supplier’s ingredient list and product warning.
C.

Third Request for Production of Documents No. 4.
REQUEST FOR PRODUCTION NO. 3. The log books, and document, from Mount
Olive Correctional Complex, Quilliams II unit, rotunda (tower) from the date
September 1, 2013, through October 1, 2013.
RESPONSE: The log book for Quilliams II unit from September 1, 2013, through
October 1, 2013, has not been located. Furthermore, even if that particular log book
is located, it may contain information pertaining to other inmates which this Plaintiff
is not entitled to receive. Accordingly, this particular request for production will be
supplemented as soon as practicable, in a redacted format if the subject log book is
located.
In his Motion to Compel, Plaintiff argues that the request information is relevant. (Document

No. 65, pp. 6 - 7.) Plaintiff explains “defendants are required to ensure that appropriate permanent
logs are implemented and maintained to thoroughly document all inmate and staff movement,
activities and incidents.” (Id., p. 6.) Plaintiff contends that the “‘daily log books’ identify
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ranks/names of officers on duty, all inmate and staff movement, unit activities and incidents/unusual
occurrences will be logged.” (Id.) Plaintiff asserts that the “original [daily log book] is turned in at
Central Control at the end of each shift then turned over to the Records Office for filing. (Id.)
Plaintiff states that the”’pass down log books’ include post inventory, incidents/unusual occurrences
and any special orders or notices to be logged.” (Id.) Plaintiff argues that the “segregation
commander turns in completed pass down log books to the Records Office for filing.” (Id.) Plaintiff
claims that “other log books’ are those approved by the segregation commander and associate
warden of security” and “the segregation commander turns in completed ‘other’ logs to the Records
Office for filing. (Id.) Finally, Plaintiff states that he “objects to defendants’ redacting and altering
those aforementioned log books and requests this Court for in-camera review first.” (Id.)
In Response, Defendants argue that they “have responded that the log book for Quilliams II
unit from September 1, 2013 through October 1, 2013 has not been located.” (Document No. 84.,
p. 3.) Defendants state that they “cannot produce a log book which has not been located.” (Id.)
In Reply, Plaintiff contends that Defendants are “unlawfully obstructing plaintiff’s access
to evidence and/or have unlawfully altered, destroyed, or concealed these log books or other material
having potential evidentiary value.” (Document No. 95, p. 2.)
Concerning the “daily log books,” Plaintiff contends that the log books are turned in at
Central Control at the end of each shift and then turned over to the Records Office for filing.
Concerning the “pass down log books” and “other log books,” Plaintiff contends that the segregation
commander turns in completed log books to the Records Office for filing. The undersigned finds that
Defendants should conduct a further search to determine whether these log books exist. If no such
log books exist, or if such log books existed at one time but no longer exist, the Defendants are

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ORDERED to respond with an explanation as to the status of such evidence. To the extent the log
books exist, the undersigned finds that they are relevant and Defendants are ORDERED to
produced them for in camera review. The undersigned finds, however, that any information
contained in the log books concerning other inmates is not relevant to Plaintiff’s claims and should
be redacted. Defendants shall produce a copy of the logs books, a proposed redacted copy and an
un-redacted copy, for the Court’s in camera review.
D.

Request for Production of Documents Nos. 6, 7, 8, 9.
REQUEST FOR PRODUCTION NO. 6. Any and all documents from Mount Olive
Correctional Complex, Quilliams II unit recreation yard insofar that they show the
plaintiff’s image on said recreation yard from the dates September 1, 2013, through
September 30, 2013.
RESPONSE: There are no documents responsive to this particular request for
production of documents.
REQUEST FOR PRODUCTION NO. 7. Any and all documents in Mount Olive
Correctional Complex, Quilliams II unit multipurpose room insofar that they show
the plaintiff’s image on the dates September 5, 2013, and September 16, 2013.
RESPONSE: There are no documents responsive to this particular request for
production of documents.
REQUEST FOR PRODUCTION NO. 8. Any and all documents from Mount Olive
Correctional Complex, Quilliams II unit, non-contact and contact visit rooms on the
date September 16, 2013, insofar that they show plaintiff’s image.
RESPONSE: There are no documents responsive to this particular request for
production of documents.
REQUEST FOR PRODUCTION NO. 9. Any and all documents from Mount Olive
Correctional Complex, corridor’s leading to and from Quilliams II unit, and
correctional hearing officer Brian Greenwood’s office on the dates September 30,
2013, and October 17, 2013, insofar as they show plaintiff’s image.
RESPONSE: There are no documents responsive to this particular request for
production of documents.

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In his Motion to Compel, Plaintiff argues that the request information is relevant. (Document
No. 65, p. 8.) Plaintiff explains the foregoing is relevant because : (1) “videos could show the
severity of plaintiff’s injuries, or at least show those injuries;” (2) “establish that plaintiff was taken
to the multipurpose room by Officers Ward and Williams where pictures were taken to document
his injuries for evidence;” (3) “that defendants Hudson, Hypes, Hess, and Wimmer observed the
injuries in question;” and (4) “insidious intent by defendant Hudson on September 30, 2013.” (Id.)
Plaintiff disagrees with Defendants that no documents responsive to his request exists. (Id.) Plaintiff
contends that “Mount Olive is a maximum security facility with numerous video cameras throughout
the complex, which are in plain sight for inmates, staff members, and citizen’s to see and are not
hidden.” (Id.)
In Response, Defendants state that they “stand by their responses to these requests for
production of documents.” (Document No. 84, p. 4.) Defendants continue to argue as follows: (1)
“There are no documents showing plaintiff’s image in the recreation yard from September 1, 2013,
through September 30, 2013;” (2) “There are no documents showing the plaintiff’s image in the
Quilliams II unit multipurpose room from September 5, 2013, to September 16, 2013;” (3) “There
are no documents showing the Plaintiff’s image in non-contact and contact visiting rooms on
September 16, 2013;” and (4) “There are no documents showing the plaintiff’s image in the corridor
leading to and from Quilliams II unit and Correctional Hearing Officer Brian Greenwood’s office
on September 30, 2013, and October 17, 2013.” (Id.) Defendant contends that they “cannot produce
documents which the plaintiff has requested which pursuant to defendant’s search do not exist.” (Id.)
Defendants, however, stated that “if the Court so requires, the defendants will undertake an
additional search to determine if these requested items can be located, and will have an appropriate

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representative sign an affidavit regarding the scope and breadth of the search.” (Id.)
In Reply, Plaintiff requests that sanctions be imposed if “during the course of this action it
becomes known that the defendants unlawfully altered, destroyed, or concealed those security
videos.” (Document No. 95, p. 3.)
The undersigned finds that Defendants have appropriately responded to Request for
Production Nos. 6, 7, 8, and 9. Defendants state that they have conducted a search for the requested
documents, but have been unable to find any document responsive to Plaintiff’s request. The
undersigned notes that defense counsel properly signed the discovery responses certifying that his
responses were complete and correct. Defendants, however, do not dispute Plaintiff’s claim that the
jail is monitored by security cameras at all times. The undersigned finds that Defendants should
conduct a further search to determine whether any photographs or videos exist. To the extent the
photographs or videos exist, the undersigned finds that they are relevant and Defendants are
ORDERED to produced them. If no such photographs or videos exist, or if such photographs or
videos existed at one time but no longer exist, the Defendants are ORDERED to respond with an
explanation as to the status of such evidence. If the Defendants wish to seek the entry of a Protective
Order concerning these photographs or videos, they should submit a proposed Protective Order for
entry by the Court.
The undersigned acknowledges that the West Virginia Division of Corrections’ policy
provides that audio and video material received by inmates in the mail from an attorney will not be
processed or provided to the inmate. Specifically, the policy memorandum provides as follows:
After receiving advice from Senior Assistant Attorney General, Charles
Houdeyschell, Jr., our policies regarding receipt of audio/video material from an
inmate’s attorney and the court system have changed as follows:

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Audio/Video material received in the mail from an attorney:
This material will no longer be processed. Instead, the material will be returned to
the attorney, advising him/her that arrangements may be made to meet with the
inmate personally to review the material. The attorney must take the audio/video
material with him/her when leaving the facility.
Audio/Video material received in the mail from a court:
These items may be picked up at the State Shop after the package is opened in the
inmate’s presence to verify that they were mailed for a court. The material will be
documented on the inmate’s Personal Property record and will be counted as part of
allowable compact disks.
Therefore, it is hereby ORDERED that defense counsel shall hand-deliver a copy of the DVD in
question, with proper labeling to indicate that the DVD is evidence in Civil Action No. 2:13-cv32832 in the United States District Court for the Southern District of West Virginia, and shall review
the DVD with the Plaintiff in person, at some point prior to the conclusion of the discovery period.
Thereafter, in accordance with the policy memorandum discussed above, it is hereby ORDERED
that the DVD shall be documented as part of the Plaintiff’s Personal Property in the State Shop, and
the Defendants or their agents at MOCC, shall provide the Plaintiff with access to review the DVD
as necessary during the course of this litigation.
E.

Request for Production of Documents Nos. 10 and 11.
REQUEST FOR PRODUCTION NO. 10. Any and all documents concerning the
extraction video of inmate Samuel Ramsey # 49810, from Quilliams II unit, pod 4,
cell 412, on the date September 1, 2013.
RESPONSE: There is no extraction video of inmate Samuel Ramsey # 49810 from
Quilliams II unit, pod 4, cell 412, on September 1, 2013. Furthermore, even if such
an extraction video existed, the Plaintiff in this civil action would not be entitled to
receive the same as it pertains to other inmates and not himself.
REQUEST FOR PRODUCTION NO. 11. Any and all documents concerning the
extraction video of inmate Roger Dwayne Smith # 44876, from Quilliams II unit,
pod 4, cell 413, on the date September 1, 2013.
RESPONSE: There is no extraction video of inmate Roger Dwayne Smith # 44876
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from Quilliams II unit, pod 4, cell 413, on September 1, 2013. Furthermore, even if
such an extraction video existed, the Plaintiff in this civil action would not be
entitled to receive the same as it pertains to other inmates and not himself.
In his Motion to Compel, Plaintiff argues that the extraction videos concerning Inmate
Ramsey and Inmate Smith are relevant. (Document No. 65, p. 10.) Plaintiff alleges that the videos
contain “evidence directly related the facts and defenses in this case.” (Id.) Plaintiff explains that
the videos prove that he was “quoting the State and U.S. Constitutions,” not yelling obscenities as
stated by Defendants. (Id.) Plaintiff states that Defendant Wimmer filed an Incident Report charging
Plaintiff with “a rule violation alleging plaintiff was yelling and screaming obscenities while
defendants extracted Inmate Smith #44876 from his cell.” (Id.) Plaintiff alleges that “after
correctional hearing officer Brian Greenwood reviewed the video in question, he found the plaintiff
‘not guilty’ because that video clearly showed plaintiff only quoted the Constitutions.” (Id.) Plaintiff
further states that the “video established that it was defendant Wimmer who yelled sexual threats
to the plaintiff.” (Id.) Plaintiff further argues that “defendants are not being frank when they claim
those requests for production do not exist.” (Id.) In support, Plaintiff attach a copies of an Incident
Report involving Inmate Roger Smith dated September 1, 2013. (Document No. 65-1, p. 8.)
In Response, Defendants argues that Plaintiff is not entitled to the extraction videos of
Inmates Samuel Ramsey and Roger Dwayne Smith. (Document No. 84, p. 6.) Defendants explain
that “[i]t is the policy of the Mount Olive Correctional Complex that it does not produce information
concerning any aspect of one inmate’s incarceration to another inmate.” (Id.) Defendants further
argue that there are no extraction videos regarding Inmate Roger Dwayne Smith and Inmate Samuel
Ramsey. (Id.)
In Reply, Plaintiff requests that sanctions be imposed if “during the course of this action it

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becomes known that the defendants unlawfully altered, destroyed, or concealed those security
videos.” (Document No. 95, p. 3.)
The undersigned finds that Plaintiff’s Motion to Compel should be granted as to the
extraction video of Inmate Smith and denied as to the extraction video of Inmate Ramsey. Based
upon a review of Plaintiff’s claims and a review of the record, the undersigned finds that the
extraction video of Inmate Smith is relevant. A review of the Incident Report prepared by Joe
Wimmer on September 1, 2013 (DOUTY 0005) reveals that Plaintiff was allegedly yelling
obscenities during the extraction of Inmate Smith. A further review of the record reveals that
Andrew Hudson deployed two one second burst of oleoresin capsicum because Plaintiff was yelling
obscenities causing a disturbance within the pod. (DOUTY 0007). Plaintiff contends that he was not
yelling obscenities during Inmate Smith’s extraction and Defendants used excessive force by
deploying the bursts of oleoresin capsicum. Therefore, the undersigned finds that the video of
Inmate Smith’s extraction is clearly relevant. The undersigned notes that Plaintiff fails to explain
how or why the video of Inmate Ramsey’s extraction is relevant and his conclusory claim of
relevancy is insufficient. According, it is hereby ORDERED that Plaintiff’s Motion to Compel is
DENIED as to Request for Production No. 10 and GRANTED as to as to Request for Production
No. 11.
Concerning Defendants’ claim that the extraction video of Inmate Smith does not exist, the
Court ORDERS Defendants to conduct a further search. A review of the Incident Report involving
Inmate Roger Smith dated September 1, 2013, reveals that the extraction and decontamination of
Inmate Smith was videoed by Nicholas Boychuck. (Document No. 65-1, p. 8.) If no such video
exists, or if such photographs or videos existed at one time but no longer exist, the Defendants are

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ORDERED to respond with an explanation as to the status of such evidence. To the extent the video
concerning Inmate Smith exists, Defendants are ORDERED to produced it by hand-delivering a
copy of the DVD in question, with proper labeling to indicate that the DVD is evidence in Civil
Action No. 2:13-cv-32832 in the United States District Court for the Southern District of West
Virginia, and shall review the DVD with the Plaintiff in person, at some point prior to the conclusion
of the discovery period. Thereafter, in accordance with the policy memorandum discussed above,
it is hereby ORDERED that the DVD shall be documented as part of the Plaintiff’s Personal
Property in the State Shop, and the Defendants or their agents at MOCC, shall provide the Plaintiff
with access to review the DVD as necessary during the course of this litigation. If the Defendants
wish to seek the entry of a Protective Order concerning the video, they should submit a proposed
Protective Order for entry by the Court.
F.

Request for Production of Documents Nos. 12, 13, and 14.
REQUEST FOR PRODUCTION NO. 12. Any and all documents concerning
Plaintiff’s violation report hearing for docket no. MOC-13-0914-E; and MOC-130915-E, conducted on the date September 16, 2013.
RESPONSE: Incident reports for MOC-13-0914-E and MOC-13-0915-E, as they
pertain to the Plaintiff herein are attached hereto, respectively, as Exhibits B and C.
REQUEST FOR PRODUCTION NO. 13. Any and all documents concerning
Plaintiff’s violation report hearing for docket no. MOC-13-1028-G, conducted on
September 20, 2013.
RESPONSE: The incident report for MOC-13-1028-G, as it pertains to the Plaintiff
herein is attached hereto as Exhibit D.
REQUEST FOR PRODUCTION NO. 14. Any and all documents concerning
Plaintiff’s violation report hearing for docket no. MOC-13-1080-G; and MOC-131081-G, conducted on the date October 17, 2013.
RESPONSE: The incident report for MOC-13-1080-G and MOC-13-1081-G, as they
pertain to the inmate herein are attached hereto as Exhibits E and F.
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In his Motion to Compel, Plaintiff complains that although “defendants did produce paper
documents, they have failed to produce the audio-recordings from the aforementioned requests.”
(Document No. 65, p. 11.) Plaintiff contends that “[t]hose records are relevant evidence in which
plaintiff has direct communication, verbally, with defendants Hudson, Hypes, and Wimmer
regarding facts and defenses at issue. (Id.)
In Response, Defendants argue that they have produced the incident reports for all the
incident numbers requested by Plaintiff. (Document No. 84, p. 6.) Defendants explain that “[t]hese
paper documents set forth in detail what transpired between the plaintiff and various correctional
officers during the requested time period.” (Id.) Defendants state that “plaintiff did not request audio
recordings in his request for production of documents, and it is not the policy of the Mount Olive
Correctional Complex to produce audio records to an incarcerated inmate.” (Id.)
In Reply, Plaintiff argues that Policy Directive 325.00(V)(B)(18) provides that “the hearing
proceedings shall be recorded by a stenographer, magnetic tape, or digital recording” and “hearing
recordings shall be retained for a period of two (2) years.” (Document No. 95, p. 3.) Plaintiff alleges
that the hearings “are well within this two year retaining period” and “defendants are in possession
of them.” (Id.)
Although Plaintiff failed to specifically request the audio recordings, the undersigned notes
that Plaintiff is proceeding pro se and should be granted some leeway. The undersigned finds that
the audio recordings are relevant as they involve the underlying facts concerning Plaintiff’s
excessive force and battery claims. According, it is hereby ORDERED that Plaintiff’s Motion to
Compel is GRANTED as to Request for Production Nos. 12, 13, and 14. Defendants are
ORDERED to produced the audio recordings by hand-delivering a copy of the recording in

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question, with proper labeling to indicate that the audio recording is evidence in Civil Action No.
2:13-cv-32832 in the United States District Court for the Southern District of West Virginia, and
shall review the audio recording with the Plaintiff in person, at some point prior to the conclusion
of the discovery period. Thereafter, in accordance with the policy memorandum discussed above,
it is hereby ORDERED that the audio recording shall be documented as part of the Plaintiff’s
Personal Property in the State Shop, and the Defendants or their agents at MOCC, shall provide the
Plaintiff with access to review the audio recording as necessary during the course of this litigation.
If the Defendants wish to seek the entry of a Protective Order concerning the audio recording, they
should submit a proposed Protective Order for entry by the Court.
G.

Request for Production of Documents No. 15.
REQUEST FOR PRODUCTION NO. 15. Any and all documents concerning the
violation report hearing for inmate James Mullins, docket no. MOC-13-0925-G,
conducted on the date September 16, 2013.
RESPONSE: Objection. The Plaintiff herein, is not entitled to receive the incident
report/violation report hearing for another inmate.
In his Motion to Compel, Plaintiff argues that he “is not requesting any paper documents,

but specifically the audio-recording, which is relevant evidence pertaining to facts and defense in
this case.” (Document No. 65, p. 11.) Plaintiff contends that “[i]n the said recording, during this
hearing is an MOCC guard admitting to enforcing martial law, and that defendant Ballard, or other
supervisors, ordered and/or declared said policy or custom (note: audio-recordings from disciplinary
hearings are retained for a period of two (2) years.)” (Id., pp. 11 - 12.) Plaintiff argues that this is
not protected information as the plaintiff has put this at issue before the bar.” (Id., p. 12.)
In Response, Defendants argue that they “cannot produce a violation report for Inmate James
Mullins as that report has nothing whatsoever to do with this plaintiff’s case.” (Document No. 84,
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p. 6.) Defendants further contend that Plaintiff “did not request audio recordings in his request for
production of documents, and it is not the policy of the Mount Olive Correctional Complex to
produce audio recordings to an incarcerated inmate.” (Id.)
In Reply, Plaintiff again argues that Policy Directive 325.00(V)(B)(18) provides that “the
hearing proceedings shall be recorded by a stenographer, magnetic tape, or digital recording” and
“hearing recordings shall be retained for a period of two (2) years.” (Document No. 95, p. 3.)
Plaintiff alleges that the hearing is “ well within this two year retaining period” and “defendants are
in possession of them.” (Id.)
The undersigned notes that Plaintiff alleges that Defendants implemented “martial law” and
improperly allowed staff discretion to use chemical agents and other riot control weaponry. Plaintiff
contends that the above requested audio recording contains evidence proving that correctional
officers were acting under “martial law” at the time of his injuries. The undersigned finds this audio
recording could contain potentially relevant information. Defendants are ORDERED to produced
the audio recording involving Inmate James Mullins to the Court for in camera review.
Based upon the foregoing, it is hereby ORDERED that Plaintiff’s Motion to Compel
(Document No. 65.) is GRANTED in part and DENIED in part. Defendants are ORDERED to
produce any documents responsive to the requests as specifically directed above to the Plaintiff on
or before April 24, 2015.
In accordance with Rule 72(a) of the Federal Rules of Civil Procedure, the parties are hereby
notified that the rulings set forth above may be contested by filing objections to this Order within
14 days. If objections are filed, the District Court, United States District Judge John T. Copenhaver,
Jr. presiding, will consider the objections and modify or set aside any portion of the Order which

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it finds to be clearly erroneous or contrary to law.
The Clerk is hereby directed to mail a copy of this Order to Plaintiff, who is acting pro se,
and to counsel of record.
ENTER: April 6, 2015.
R. Clarke VanDervort
United States Magistrate Judge

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