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Rouse v. Byars

United States District Court, D. South Carolina, Florence Division

May 20, 2016

DEVODUS ROUSE, Plaintiff,
v.
WILLIAM R. BYARS, JR., Defendant.

          ORDER

          Thomas E. Rogers, III United States Magistrate Judge

         I. INTRODUCTION

         This action arises from an assault against Plaintiff on February 26, 2013, while he was incarcerated within the South Carolina Department of Corrections (SCDC) at the Lee Correctional Institution. Plaintiff brings this action pursuant to 42 U.S.C. § 1983, alleging that Defendant William R. Byars, Jr., Director of the SCDC, is liable for the constitutional violation of his “agents, employees and contractors under the legal doctrines of respondeat superior and non-delegable duty” for their failure to protect him from a known risk of harm. Am. Comp. ¶ 2. Plaintiff also asserts a state law claim of negligence. Presently before the court is Plaintiff’s Second Amended Motion For Leave to Amend Proposed Second Amended Complaint (Document # 89).[1] 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. FACTUAL ALLEGATIONS

         At all times relevant to this action, Plaintiff was incarcerated at LCI. He alleges that he was placed in the Special Management Unit (SMU) for thirty days as a result of allegedly inappropriately touching a female corrections officer. Am. Comp. ¶ 7. Immediately prior to his commitment to SMU, Plaintiff met with Associate Warden Nolin as to his knowledge of a passage into a crawl space above the Kershaw Dormitory ceiling constructed by members of a prison gang known as “Folk Nation, ” in order to retrieve contraband thrown over the prison’s walls. Am. Comp. ¶ 8. Associate Warden Nolin promised Plaintiff that he would investigate and give consideration as to the time he would spend in SMU in exchange for the information he provided. Am. Comp. ¶ 9. Within hours of receiving Plaintiff’s information, prison administration discovered the crawl space and made it no longer accessible to the Folk Nation members to access the roof of the Kershaw dormitory to retrieve contraband “throw-overs.” Am. Comp. ¶ 10.

         On February 26, 2013, Plaintiff was released early from SMU and placed in the mental health dorm under the guard of Corrections Officer Eve McKinney, who was friends with Poston, the officer Plaintiff was accused touching inappropriately. Am. Comp. ¶¶ 6, 14. Officer McKinney spoke to two known Folk Nation inmates and then left her post unattended for over thirty-five minutes. Am. Comp. ¶ 15. The two Folk Nation inmates to whom McKinney was speaking and five other Folk Nation inmates assaulted Plaintiff, stabbing him twenty-five times and beating him severely in Officer McKinney’s absence. Am. Comp. ¶ 15. No correctional officers intervened in the assault and Plaintiff returned to his cell on his own. Am. Comp. ¶ 22.

         After approximately ninety minutes, correctional officers discovered Plaintiff, who was bleeding profusely and virtually unresponsive. Am. Comp. ¶ 24. After another significant delay, Plaintiff was moved to the Medical Clinic, and then to Carolina Pines Hospital, where it was determined that Plaintiff had collapsed lungs bilaterally, and severe soft tissue injuries to his left ear, left eye, and eyelid. Am. Comp. ¶¶ 25-27.

         Plaintiff alleges, inter alia, that “Defendant’s administrative personnel, knowing that Plaintiff would be at risk for harm by Folk Nation members after he provided information as to their ceiling passage and “throw-over” activities deliberately or, at a minimum with deliberate indifference” and “possibly intentionally, based upon the relationship (an inaction) of Corrections Officers Poston and McKinney” “failed to properly protect [Plaintiff] from assault by those individuals.” Am. Comp. ¶¶ 33, 34.

         III. PROCEDURAL HISTORY

         Plaintiff filed this action on October 8, 2013. The scheduling order provided a deadline to amend pleadings of February 10, 2014, and a discovery deadline of June 10, 2014. See Scheduling Order (Document # 7). Counsel for Plaintiff asserts that he did not receive any responses to his written discovery requests until after a protective order was entered on August 26, 2014. See Confidentiality and Protective Order (Document # 30). Although numerous motions were filed by Defendant to extend the dispositive motions deadline, neither party moved to extend the deadlines to amend pleadings or to complete discovery. Despite the expiration of the amended pleadings deadline, Defendant did not object to Plaintiff’s first motion to amend, and the amended complaint was filed August 12, 2015. See Amended Complaint (Document # 63). Further, it appears both parties continued to engage in discovery past the June 10, 2014, deadline. Counsel for Plaintiff asserts that although several depositions were completed in June of 2015, others, including the deposition of Officer McKinney, were not completed until November 19, 2015. Counsel for Plaintiff states that Officer McKinney’s deposition had been scheduled for June 16, 2015, but had to be canceled because of a death in McKinney’s family.

         On September 17, 2015, Defendant Byars filed his motion for summary judgment (Document # 67). Thereafter, on October 4, 2015, as referenced in footnote 1, Plaintiff filed a motion to amend his amended complaint, in which he sought to add as defendants Mark McCall, Steve Nolan, and Eve McKinney. See Motion to Amend Amended Complaint (Document # 70). Within the same motion, he also sought an extension of time to depose those he wished to name as defendants, as well as two witnesses, and to conduct additional written discovery. He argued that he needed this additional discovery in order to supplement his response to Defendant’s motion for summary judgment. Then, on October 14, 2015, Plaintiff filed an Amended Motion to Amend Amended Complaint (Document # 74), wherein he asked to add the SCDC as a defendant in addition to those individuals named in the previous motion. Finally, on January 7, 2016, Plaintiff filed the present Second Amended Motion for Leave to Amend Proposed Second Amended Complaint (Document # 89). Therein, he stated that he has completed the depositions of Associate Warden Steve Nolan and Corrections Officer Eve McKinney on November 19, 2015. He stated,

Based upon those depositions, it has been determined that the proper Defendant in this matter is Corrections Officer Eve McKinney and further that the evidence does not conform to the impleading of Warden Mike McCall, Associate Warden Steve Nolan, or present Defendant William R. Byars, Jr. For that reason, Plaintiff by undersigned counsel moves the Court for leave to amend his proposed Second Amended Complaint naming Corrections Officer Eve McKinney as the sole Defendant in this matter. Defense counsel has objected to the inclusion of the S.C. Department of Corrections based upon Eleventh Amendment grounds.

         Second Amended Motion for Leave to Amend Proposed Second Amended Complaint p. 1. Defendant filed a response in opposition (Document # 90), arguing that Plaintiff has failed to show good cause to amend his amended complaint outside the scheduling order deadline, to which Plaintiff filed a reply (Document # 92). In his reply, Plaintiff argued that if his motion to amend is granted, he will not need to conduct any further discovery. If the motion is denied, he seeks an additional ninety days to depose current Defendant, former Director William R. Byars, Jr., and former Warden Mike[2] McCall as well as to conduct additional written discovery.

         IV. ...


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