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McFadden v. Bittinger

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

November 18, 2016

Bernard McFadden, Plaintiff,
v.
Edward Bittinger, Captain and/or Disciplinary Hearing Officer at Kershaw CI, and Tony Smith, Captain of Kershaw CI, in their individual or personal capacities, Defendants.

          ORDER

          MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE.

         The Plaintiff, a prisoner proceeding pro se, seeks relief pursuant to Title 42, United States Code, Section 1983. This matter is before the Court upon four Motions to Compel filed by the Plaintiff. (Dkt. No. 36; Dkt. No. 42; Dkt. No. 46; Dkt. No. 50.) For the reasons set forth herein, Plaintiff's First Motion to Compel (Dkt. No. 36) and Third Motion to Compel (Dkt. No. 46) are granted in part and denied in part; Plaintiff's Second Motion to Compel (Dkt. No. 42) is dismissed as moot; and Plaintiff's Fourth Motion to Compel (Dkt. No. 50) is denied.

         Rule 37 of the Federal Rules of Civil Procedure provides that if a party fails to respond to discovery, the party seeking discovery may move for an order compelling production. The decision to grant or to deny a motion to compel discovery rests within the broad discretion of the trial court. See Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922, 929 (4th Cir. 1995) (“This Court affords a district court substantial discretion in managing discovery and reviews the denial or granting of a motion to compel discovery for abuse of discretion.”) (citations omitted); LaRouche v. Nat'l Broad. Co., 780 F.2d 1134, 1139 (4th Cir. 1986) (“A motion to compel discovery is addressed to the sound discretion of the district court.” (citation omitted)).

         Before turning to a discussion of each individual motion, the undersigned will briefly review Plaintiff's allegations. Plaintiff alleges that Defendants violated his First Amendment rights “via retaliation for exercising his right of access to court, reasonably causing a chilling effect when instituting disciplinary charges and denying him privileges.” (Dkt. No. 1 at 3 of 6.) Plaintiff alleges that in March of 2014, after he requested copies, “one law library officer Nathan Branham charged [Plaintiff] with abuse of privileges.” (Id.) Plaintiff asserts he has filed many grievances and lawsuits and that “many inmates and staff of Kershaw are/were aware of Plaintiff's legal activities prior to Officer Branham's filing charges of abuse of privileges against Plaintiff.” (Id.) Plaintiff alleges that Defendants Smith and Bittenger were involved in the disciplinary process on that charge and denied him visitation, canteen, and use of the phone for 90 days. (Id. at 3-4 of 6.) Plaintiff contends that “the sole intentions Mr. Smith and Mr. Bittinger had when ordering” these sanctions against Plaintiff was “to cause a chilling effect or otherwise to prevent him from requesting copies in a timely manner that would have allowed him to file additional discovery in light of a court-ordered deadline” in a different federal case. (Id. at 4 of 6.)

         In addition to his claim that Defendants violated his First Amendment rights, Plaintiff alleges that prior to his disciplinary hearing in March of 2014, Defendant Smith “informally resolved two white inmates Norman Olson, #163378, and his former roommate Dennis Brown with extra duty for more serious charges of possession of contraband, ” while “offering Plaintiff (20) days of good time with (10) days loss of privileges for less severe charges of abuse of process.” (Id.) Plaintiff contends that he, as a black inmate, was punished more severely than white inmates whose charges were more serious than Plaintiff's charges. (Id. at 4-5 of 6.)

         A. First Motion to Compel (Dkt. No. 36)

         In his First Motion to Compel, Plaintiff complains about nearly all of the Defendants' Responses “to Plaintiff's Discovery Styled as ‘Requests for Production, and Upon Inspection, Requests for Interrogatories and Admissions with Declaration in Support.'” (See Dkt. No. 36; Dkt. No. 36-1.) Defendants filed a Response in Opposition to Plaintiff's First Motion to Compel. (See Dkt. No. 38.)

         In his “Argument #1, ” Plaintiff complains that, contrary to Defendants' assertions, he has not received the documents Bates Labeled SCDC 1 through SCDC 103. (See Dkt. No. 36 at 1 of 8; see also Dkt. No. 36-1.) The undersigned has no way to verify whether or not Plaintiff did, in fact, receive such documents. Accordingly, Defendants shall file documents Bates Labeled SCDC 1 through SCDC 103 with the Court, and they shall send another copy of these documents to Plaintiff.

         In “Argument #3, ” Plaintiff complains about Defendants' responses to his Request Numbers 7 and 8. (See Dkt. No. 36 at 2 of 8; Dkt. No. 36-1 at 5 of 14.) In their Responses, Defendants asserted that it was “unclear what document(s) the Plaintiff is requesting.” (Dkt. No. 36-1 at 5 of 14.) In their Response in Opposition to the Motion to Compel, Defendants note that these discovery requests pertain to Warden Reynolds, who is not a party to this litigation. (Dkt. No. 38 at 5 of 9.) Defendants are correct that Warden Reynolds is not a defendant in the case sub judice. (See generally Compl.) In these discovery requests, Plaintiff appears to be asking for discovery related to the Warden's alleged “deliberate indifference” in “refus[ing] to discipline Defendants Smith and Bittinger.” (See Dkt. No. 36-1 at 5 of 14.) Such requests are beyond the scope of discovery. As noted herein, Warden Reynolds is not a defendant, and how she handled Plaintiff's grievances concerning her alleged lack of investigation of officers is not relevant to the case sub judice. See Fed. R. Civ. P. 26(b)(1) (“Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”); see also Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own actions, has violated the Constitution.”) To the extent Plaintiff seeks documents above and beyond what is included within Bates Labeled SCDC 1 through SCDC 103, Plaintiff's motion is denied as to Requests 7 and 8.

         Plaintiff asserts in “Argument #4" that Defendants “have not shown or explained how” the at-issue requests are “overreaching, unduly burdensome, irrelevant, and of no probative value.” (Dkt. No. 36 at 2 of 8.) Presumably the requests Plaintiff references in this argument are Request Numbers 9, 10, and 11. (See Dkt. No. 36-1 at 6-7 of 14.) Request Numbers 9 and 10, and the corresponding responses, are as follows:

9. Produce, seal and deliver to the assigned judges in this case SCDC Form 19-106, Informal Resolution Form dated 7/20/2015 by Defendant Smith for white inmate Freddie Puckett, #358367 on a Level 3 Offense for Possession of Contraband, Offense Code 817.
RESPONSE: Defendants object to this request as overreaching, unduly burdensome, irrelevant, and of no probative value given the claims stated in Plaintiff's Complaint. Plaintiff's request concerns a separate disciplinary incident, removed in space and time from the events alleged in the Complaint, and unrelated to any named Defendant in this litigation.
10. Produce, seal and deliver to the assigned judges on this case SCDC kiosk request #15-833121 dated 9/30/15, Puckett admitting Smith gave a lighter sanction of canteen restrictions and counseling for contraband and/or other charges to white inmate Puckett, #358307.
RESPONSE: Defendants object to this request as overreaching, unduly burdensome, irrelevant, and of no probative value given the claims stated in Plaintiff's Complaint. Plaintiff's request concerns a separate disciplinary incident, removed in space and time from the events alleged in the Complaint, under a different Warden, and unrelated to any named Defendant in this litigation.

(Dkt. No. 36-1 at 6 of 14.) Although Defendants note that Inmate Puckett is not a party to this lawsuit and assert that he “is not referenced in the Plaintiff's Complaint, ” Defendants state that they “have obtained certain documents with regards to Inmate Freddie Puckett and these documents are being produced as a supplemental production to Plaintiff.” (Dkt. No. 38 at 5 of 9; see also Dkt. No. 38-6.) Plaintiff has not asserted any problem with this supplementation. Accordingly, with respect to Request 9 and 10, Plaintiff's First Motion to Compel is denied. As to Request 11, Plaintiff's motion is denied; the request pertains to how Warden Dunlap did or did not discipline Officer Smalls. Neither Dunlap nor Smalls are defendants herein, and Request 11 is beyond the scope of discovery.

         Plaintiff's “Argument #4" also apparently relates to Requests 18, 19, and 20. (See Dkt. No. 36-1 at 9-12 of 14.) Those requests, and the corresponding responses, are as follows:

18. Produce, seal and deliver sworn affidavit or declaration under penalty of perjury showing the ratio of black, white and Hispanic inmates housed in Sycamore and Magnolia A and B, and Hickory C and D wings, to demonstrate that officials generally have a custom or policy of discrimination in housing inmates disguised as a program.
RESPONSE: Defendants object to this request. Under the Federal discovery rules, Defendants are not obligated to create documents not otherwise in existence for the purpose of responding to a party's discovery requests, or to perform Plaintiff's own legal work for him. Defendants further object to the request as overreaching, overly broad, unduly burdensome, and irrelevant. Plaintiff alleges that the named Defendants in this suit were motivated by matters of race or retaliation with regards to specific decisions made in relation to the events of March 11, 2014. The Defendants in this case have no role in making agency-wide decisions about inmate housing, and an affidavit as requested by the Plaintiff would have no evidentiary value in proving Plaintiff's allegations in this case.
19. Produce, seal and deliver sworn affidavit o[r] declaration under penalty of perjury showing the ratio of black, white and Hispanic [inmates] housed in Oak A, B and Palmetto A and B wings to demonstrate officials generally have a custom or policy of discrimination in housing inmates disguised as a program.
RESPONSE: Defendants object to this request. Under the Federal discovery rules, Defendants are not obligated to create documents not otherwise in existence for the purpose of responding to a party's discovery requests, or to perform Plaintiff's own legal work for him. Defendants further object to the request as overreaching, overly broad, unduly burdensome, and irrelevant. Plaintiff alleges that the named Defendants in this suit were motivated by matters of race or retaliation with regards to specific decisions made in relation to the events of March 11, 2014. The Defendants in this case have no role in making agency-wide decisions about inmate housing, and an affidavit such as requested by the Plaintiff would have no evidentiary value in proving Plaintiff's allegations in this case.
20. Produce, seal and deliver sworn affidavit or declaration under penalty of perjury showing the ratio of black, white and Hispanic inmates that work for Kershaw's maintenance crew to demonstrate that officials generally have a custom or policy of discrimination in jobs for prisoners.
RESPONSE: Defendants object to this request. Under the Federal discovery rules, Defendants are not obligated to create documents not otherwise in existence for the purpose of responding to a party's discovery requests, or to perform Plaintiff's own legal work for him. Defendants further object to the request as overreaching, overly broad, unduly burdensome, and irrelevant. Plaintiff alleges that the named Defendants in this suit were motivated by matters of race or retaliation with regards to specific decisions made in relation to the events of March 11, 2014. The Defendants in this case have no role in making agency-wide policy decisions about inmate work crews, and an affidavit such as requested by the Plaintiff would have no evidentiary value in proving Plaintiff's allegations in this case.

(Dkt. No. 36-1 at 9-11 of 14.)

         Plaintiff's first Motion to Compel is denied with respect to Requests 18, 19, and 20. As Defendants have argued, they are not required to create documentation for Plaintiff, nor is the requested documentation relevant to Plaintiff's claims against the Defendants in the case sub judice, Defendants Edward Bittinger and Tony Smith. See Fed. R. Civ. P. 26(b)(1).

         Plaintiff's “Argument #2" relates to his Request No. 15. (See Dkt. No. 36 at 1 of 8; see also Dkt. No. 36-1 at 8 of 14.) Request No. 15, and the corresponding response, are as follows:

15. Produce, seal and deliver to the assigned judges in this case SCDC Forms 19-29A and 19-69 (Officer Hooper's Incident Reports and the related charges, if any, documented on SCDC Forms 19-69 for Olson and Brown for contraband).
RESPONSE: Defendants are in the process of determining if the referenced document(s) exists and if the Defendants have access to them. If so, they will be produced to the Court. The inmate agrees not to receive these documents directly for security reasons.

(Dkt. No. 36-1 at 8 of 14.)

         While the undersigned agrees with Defendants that they have not waived their objections, it is unclear to the undersigned whether documents responsive to Request 15 exist. Accordingly, Defendants shall file a status report within 10 days of the date of this Order indicating whether such documents exist; if they exist, such documents must be provided to the Court within that same ten-day period. Plaintiff's motion is granted with respect to Request 15.

         In his “Argument #5, ” Plaintiff complains about Defendants' response to Request 16 and Request 17. (Dkt. No. 36 at 4 of 8; see also Dkt. No. 36-1 at 8-9 of 14.) In Requests 16 and 17, Plaintiff seeks production of transcribed copies of two disciplinary hearings. (Dkt. No. 36-1 at 8 of 14.) Defendants' responses indicate they are not in possession of a transcript as to Request 16. (Dkt. No. 36-1 at 8 of 14.) To the extent Plaintiff asserts Defendants should be required to transcribe the hearings, the undersigned disagrees. Defendants are not obligated to provide Plaintiff with a transcript that they do not possess. As to Request 17, Defendants' responses indicate the response may be supplemented, as they “are in the process of determining if the referenced document exists in any form.” (Dkt. No. ...


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