Douty v. Rubenstein et al

Filing 73

MEMORANDUM OPINION AND ORDER re: plaintiff's 55 OBJECTIONS AND BRIEF IN OPPOSITION to 49 MEMORANDUM OPINION AND ORDER denying Plaintiff's 40 MOTION for Compelling Discovery and Sanctions, and 71 MOTION for Status Hearing re: 55 OBJECTIONS AND BRIEF IN OPPOSITION; denying plaintiff's 71 Motion for Status Hearing re: 55 OBJECTIONS AND BRIEF IN OPPOSITION; directing that the 12/8/2014 49 MEMORANDUM OPINION AND ORDER is affirmed except that it is modified as more fully set forth herein. Signed by Judge John T. Copenhaver, Jr. on 2/20/2015. (cc: attys; any unrepresented parties; plaintiff) (tmh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
FRED D. DOUTY,
Plaintiff,
v.

Civil Action No. 2:13-32832

JIM RUBENSTEIN, Commissioner,
W. Va. Division of Corrections, and
DAVID BALLARD, Warden,
Mt. Olive Correctional Complex, and
PAUL PERRY, Associate Warden of Security,
Mt. Olive Correctional Complex, and
RONNIE WILLIAMS, Captain,
Mt. Olive Correctional Complex, and
DANIEL HAHN, Lieutenant,
Mt. Olive Correctional Complex, and
ANDREW HUDSON, Corporal,
Mt. Olive Correctional Complex, and
JOSHUA HYPES, Correctional Officer,
Mt. Olive Correctional Complex, and
CHRIS HESS, Corporal,
Mt. Olive Correctional Complex, and
NICHOLAS BOYCHUCK, Correctional Officer,
Mt. Olive Correctional Complex, and
SERGEANT JOE WIMMER, Sergeant,
Mt. Olive Correctional Complex,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending is plaintiff Fred Douty’s appeal of an order
entered by the United States Magistrate Judge on December 8,

2014, filed December 22, 2014, and his motion for a status
hearing concerning his appeal, filed February 18, 2015.1
On December 8, 2014, the magistrate judge entered an
order denying Mr. Douty’s “Motion and Brief in Support for
Compelling Discovery and Sanctions.”

The magistrate judge

concluded that defendants (1) responded timely to plaintiff’s
first request for production of documents, and (2) responded,
albeit late, to his first set of interrogatories and second
request for production of documents.

The circumstances then

before the magistrate judge did not require him to take up the
substance of the discovery disputes surrounding the first

1

Inasmuch as the within ruling resolves the instant
appeal, a status hearing is unnecessary. It is ORDERED that the
motion for a status hearing be, and hereby is, denied.
It is further noted that on January 14, 2015, there was
filed herein a letter from Mr. Douty dated January 12, 2015,
addressed to the undersigned judge, with a copy to defense
counsel, regarding discovery issues related to those dealt with
by the within order. The court has reviewed the letter.
The letter also contends that defense counsel “has filed ex
parte responses and certificate of serves [sic] with the court .
. . .” (Ltr. at 2). The court has audited those responses and
certificates of service, all of which appear to reflect service
upon Mr. Douty. It may be, however, that defense counsel
mistakenly concluded that service was accomplished
electronically through the CM/ECF system, as outlined in section
9.3 of the Administrative Procedures for Electronic Case Filing
(“Procedures”). In pro se cases, however, counsel “must serve .
. . documents on . . . non-electronic pro se parties by
traditional means,” in accordance with section 4 of the
Procedures. Defense counsel should adopt that course if he has
not done so heretofore.
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request for production of documents.

As to the second set of

responses, however, the magistrate judge concluded that Mr.
Douty had not, prior to seeking court intervention, met and
conferred with defense counsel concerning the dispute.
Federal Rule of Civil Procedure 72(a) governs appeals
from rulings of a magistrate judge on nondispositive matters:
When a pretrial matter not dispositive of a
party's claim or defense is referred to a magistrate
judge to hear and decide, the magistrate judge must
promptly conduct the required proceedings and, when
appropriate, issue a written order stating the
decision. A party may serve and file objections to the
order within 14 days after being served with a copy. A
party may not assign as error a defect in the order
not timely objected to. The district judge in the case
must consider timely objections and modify or set
aside any part of the order that is clearly erroneous
or is contrary to law.
Fed. R. Civ. Proc. 72(a) (emphasis added).

The United States

Court of Appeals for the Tenth Circuit has observed as follows:
Rule 72(a), and its statutory companion, see 28
U.S.C. ' 636(b)(1), place limits on a party's ability
to seek review of a magistrate judge's non-dispositive
order. . . .
In [sum] . . . , the district court was required
to Adefer to the magistrate judge's ruling unless it
[was] clearly erroneous or contrary to law.@
Allen v. Sybase, Inc., 468 F.3d 642, 658 (10th Cir. 2006)
(emphasis added)(quoted authority omitted).

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A decision is clearly erroneous when, following a
review of the entire record, a court Ais left with the definite
and firm conviction that a mistake has been committed.@

United

States v. United States Gypsum Co., 333 U.S. 364, 395 (1948).

A

decision is Acontrary to law@ when it Afails to apply or
misapplies relevant statutes, case law or rules of procedure.@
Transamerica Life Ins. Co. v. Lincoln Nat'l Life Ins. Co., 592
F. Supp.2d 1087, 1093 (N.D. Iowa 2008).
In his appeal, Mr. Douty first contends that
defendants responded ex parte to his “Motion and Brief in
Support for Compelling Discovery and Sanctions.”

The

defendants’ response to that motion, however, attaches a
certificate of service certifying it was sent to Mr. Douty.
While Mr. Douty requests the court to make inquiry of his place
of incarceration concerning his receipt of the response from
defendants, it is his obligation to seek that information and,
if he so desires, present it to the court for consideration.
Second, Mr. Douty appears to concede, as the
magistrate judge noted, that the defendants responded to certain
of his requests for production of documents.

He takes issue,

however, with the substance of those responses.

For example, he

challenges the defendants’ assertion that the documents he
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requests concerning the use of force are confidential.

The

court notes that the defendants may not simply label otherwise
discoverable material as “confidential” and unilaterally shield
it from discovery.

If defendants wish to rely upon a recognized

privilege for withholding the subject documents, they are
directed to file a privilege log, on or before March 5, 2015, in
compliance with Federal Rule of Civil Procedure 26(b)(5)(A)(ii).
The magistrate judge may then assess whether the claims of
privilege are well taken.

Absent compliance with the rule, or

some recognized ground for nondisclosure, the documents should
be produced.
Third, Mr. Douty challenges defendants’ response to
one request for production in which he sought “electronically
stored information from staff, officers, administrator’s or
bodies concerning investigations, depositions, hearings and/or
findings” over a three-year period.

(Appeal at 12).

The

subject time period is too broadly drawn and would, as
defendants noted in their response to the request, “include
hundreds of pages of documents involving every instance of
alleged force used at” the facility.

(Appeal at 12-13).

For

that reason, Mr. Douty’s request for production is overbroad and
insufficiently tailored.
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Fourth, Mr. Douty requested the time sheet for
defendant Andrew Hudson for September 1 to September 2, 2013.
In response, defendant Hudson refers plaintiff to his response
to Mr. Douty’s request for admission number 23, in which he
states that he worked 18 hours during the two-day period.

He

then notes “there is no reason whatsoever to produce the
timecard.”

(Appeal at 23).

Defendant Hudson is required,

however, to produce the time sheet inasmuch as it may lead to
admissible evidence.

See In re ASI Reactivation, Inc., 934 F.2d

1315, 1324 (4th Cir. 1991) (“Discovery is generally permitted if
it may lead to admissible evidence.”).

For example, the time

sheet may reveal a variance with defendant Hudson’s admission or
some other type of information that might warrant further
inquiry.

Having reviewed the balance of Mr. Douty’s appellate
contentions respecting the magistrate judge’s order, the court
concludes that they are not meritorious.

It is, accordingly,

ORDERED that the December 8, 2014, order appealed from be, and
hereby is, affirmed except that it is modified only to the
extent of defendant Hudson’s obligation to produce his time
sheet and defendants’ obligation to produce a privilege log for
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review in the event that they continue to withhold otherwise
discoverable documents as “confidential.”
The Clerk is directed to forward copies of this
written opinion and order to all counsel of record and any
unrepresented parties.
DATED:

February 20, 2015

John T. Copenhaver, Jr.
United States District Judge

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