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Waters v. Stewart

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

February 28, 2017

THOMAS BRADFORD WATERS, Plaintiff,
v.
LAKE CITY POLICE OFC. JOHN STEWART, LAKE CITY POLICE OFC. MARK STRICKLAND, LAKE CITY POLICE OFC. SGT. ANTHONY BACKHUSS, LAKE CITY POLICE OFC. JODY COOPER, ATF AGENT ALAN C. STRICKLAND, Defendant.

          ORDER

          Thomas E. Rogers, III United States Magistrate Judge.

         I. INTRODUCTION

         Plaintiff, who is proceeding pro se, brings this action, alleging violations of his constitutional rights pursuant to both 42 U.S.C. § 1983 and Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Presently before the court is Plaintiff's Motion to Compel (Document # 63). The court previously entered an order directing Defendants to file a sur-reply to this motion addressing the objections discussed by Plaintiff in his reply. Defendants filed the sur-reply (Document # 113) as directed by the court. 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. DISCUSSION

         In his motion to compel, Plaintiff stated that he has not received any responses to his discovery requests to Defendants. In response, Defendants stated that they had served their discovery responses on Plaintiff. Plaintiff filed a reply, arguing that Defendants objected to each of his discovery requests. Plaintiff attached Defendants' discovery responses to his reply and argues that Defendants' objections are without merit. At the court's direction, Defendants filed a sur-reply addressing the issues raised in Plaintiff's reply.

         Before addressing Plaintiff's discovery requests individually, the court will address one objection raised frequently by Defendants. Defendants raise similar objections to many of Plaintiff's requests by stating that the requested documents have been turned over to prosecutors in an ongoing criminal prosecution, and Defendants do not have authority to release materials pertinent to an ongoing prosecution. Here, as Plaintiff notes in his reply, his federal trial is complete. See U.S. v. Waters, 4:15-cr-0158-BHH-1, Judgment (Document # 162). However, it appears that state charges were also brought arising from the March 12, 2015, arrest. Because the status of those state charges is not clear, the court directed Defendants to notify the court of the status of those charges. Defendants state that they have no pending criminal investigation involving Plaintiff, and that the charge that arose out of the matters complained of in Plaintiff's complaint, felon in possession of a firearm, have been adjudicated in federal court as stated above. Defendants note that Plaintiff was convicted of being a felon in possession of a firearm on September 15, 2015, and sentenced to one hundred and twenty months in federal prison on April 15, 2016. Therefore, any concerns regarding the “differences between the discovery privileges available” in criminal and civil cases, Degen v. United States, 517 U.S. 820, 825-26, 116 S.Ct. 1777, 1781-82, 135 L.Ed.2d 102 (1996), have been alleviated now that the criminal prosecution is complete and is not an impediment to producing discovery. See, e.g., U.S. v. Any and All Assets of That Certain Business Known as Shane Co., 147 F.R.D. 99, 101 (M.D. N.C. 1992). As such, any objections raised by Defendants stating “[a]ll investigative materials regarding Plaintiff's criminal case have been turned over to the Solicitor's office and/or the Attorney General's office in an ongoing criminal matter. . . . These Defendants do not have the authority to release materials pertinent to an ongoing prosecution” or “such evidence, if any, would have been turned over to the Solicitor's office, Attorney General's office or Federal Officers in an ongoing criminal matter” are without merit.

         In addition, many of Defendants' objections are to the relevancy of Plaintiff's requests. Thus, it is necessary to understand Plaintiff's allegations in this matter. Plaintiff's case arises from his arrest on March 12, 2015. Plaintiff alleges that Officers Stewart and Strickland used excessive force when they tased him while he was unarmed and face down on the ground. He further alleges that Officers Stewart and Strickland lied about the events that occurred during the arrest, and that Officers Backhuss and Cooper, who were not present during the arrest, conspired with Officers Stewart and Strickland to cover up their actions. Plaintiff alleges that the EMS personnel who responded to the scene also participated in the conspiracy to cover up what actually occurred during the arrest and failed to provide him with proper medical treatment. Plaintiff also appears to allege that all Defendants deprived him of due process in his criminal trial (arising from the arrest on March 12, 2015) by covering up what actually happened during the arrest. See generally Compl. (Doc. # 1) and Am. Compl. (Doc. # 78).

         Rule 26 of the Federal Rules of Civil Procedure provides that evidence is discoverable only if it is relevant to any party's claims or defenses and proportional to the needs of the case. The burden rests with the party resisting discovery to establish that the information is not relevant or proportional to the needs of the case. See Brey Corp. v. LQ Mgmt., L.L.C., AW-11-cv-00718, 2012 WL 3127023, at *4 (D.Md. July 26, 2012) (“[T]he party resisting discovery bears the burden of showing why the discovery requests should not be granted.”) (internal quotation marks and alterations omitted); Eramo v. Rolling Stone LLC, 314 F.R.D. 205, 209 (W.D.Va. 2016). Where a prima facie showing of discoverability has been made by the party seeking discovery, “the burden shifts ... to the resisting party to show ‘lack of relevance by demonstrating that the requested discovery (1) does not come within the broad scope of relevance as defined under Fed.R.Civ.P. 26(b)(1), or (2) is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption of broad discovery.'” Desrosiers v. MAG Industrial Automation Sys., LLC, 675 F.Supp.2d 598, 601 (D.Md.2009) (internal citations omitted).

         Plaintiff's requests and Defendants' objections are discussed below.

         (1) All relevant documents including handwritten incident reports, supplemental incident reports, affidavits, and investigative notes done by the Defendants John Stewart, Mark Strickland, Anthony Bacchuss and Jody Cooper. These documents would have a Case # of 15-03-0323 or 4:15-CR-158-001BHH.

         Original Objection: Irrelevant, not likely to lead to admissible evidence. All investigative materials regarding Plaintiff's criminal case have been turned over to the Solicitor's office and/or the Attorney General's office in an ongoing criminal matter. Such documents are irrelevant to this civil matter. These Defendants do not have the authority to release materials pertinent to an ongoing prosecution.

         Supplemental Response: In their sur-reply, Defendants attach their supplemental responses to Plaintiff's discovery requests. In their supplemental response to this request, they do not raise any objections. They provided “all materials responsive to this request for production in [their] possession”: an incident report dated 3/12/2015, affidavits of John Stewart and Mark Strickland, a use of force form dated 3/12/15, a search warrant dated 3/13/2015, the judgment in the criminal case, and Lake City Police Department's arrest record for Plaintiff.

         Because it appears that Defendants have responded to this request, Plaintiff's motion is denied as moot with respect to request for production one.

         (2) All documented information handwritten or typed into any system, that is in the possession of Lake City Police Department, that was done or entered by dispatcher “Kimberly Scoot” who worked as the dispatcher on 3/12/15. This information would include the name and address and all other information given by the 911 caller on 3/12/15. Case # 15-03-0323.

         Original Objection: Irrelevant, not likely to lead to admissible evidence. All investigative materials regarding Plaintiff's criminal case have been turned over to the Solicitor's office and/or the Attorney General's office in an ongoing criminal matter. Such documents are irrelevant to this civil matter. These Defendants do not have the authority to release materials pertinent to an ongoing prosecution.

         Supplemental Response: Defendants do not raise an objection. They assert that the Lake City Police Department no longer has a dispatch system and that all calls go through central dispatch in Florence. They assert that no handwritten records of calls were maintained when the dispatch system was dismantled; thus, they have no documents responsive to this request.

         Defendants are directed to provide an affidavit or other sworn statement attesting to the veracity of this response within ten days of the date of this order.

         (3) The recording/audio or the real time 911 call taken by dispatcher “Kimberly Scoot” on 3/12/15 involving Case # 15-03-0323.

         Original Objection: Irrelevant, not likely to lead to admissible evidence. All investigative materials regarding Plaintiff's criminal case have been turned over to the Solicitor's office and/or the Attorney General's office in an ongoing criminal matter. Such documents are irrelevant to this civil matter and pose a security risk to the caller. These Defendants do not have the authority to release materials pertinent to an ongoing prosecution.

         Supplemental Response: Defendants do not raise an objection. They refer to their response to request number two and add that the dispatch system at that time did not record calls.

         Defendants are directed to provide an affidavit or other sworn statement attesting to the veracity of this response within ten days of the date of this order.

         (4) All log book or computer documented information done by dispatcher “Kimberly Scoot” on 3/12/15 revealing the names and place of employment of the two F.C.E.M.S. workers that came to the Lake City Police Department to treat the Plaintiff after he was tased on 3/12/15.

         Original Objection: Irrelevant, not likely to lead to admissible evidence. All investigative materials regarding Plaintiff's criminal case have been turned over to the Solicitor's office and/or the Attorney General's office in an ongoing criminal matter. Such documents are irrelevant to this civil matter and pose a security risk to the caller. These Defendants do not have the authority to release materials pertinent to an ongoing prosecution.

         Supplemental Response: Defendants do not raise an objection. They state they are not in possession of any such documents.

         Defendants are directed to provide an affidavit or other sworn statement attesting to the veracity of this response within ten days of the date of this order.[1]

         (5) The Lake City Police Department's “Weapon's Log” from 3/12/15. This document should show the name and serial number of each weapon checked out by all officers on duty. This document would include which “taser” was checked out by which police.

         Original Objection: Irrelevant, not likely to lead to admissible evidence.

         Supplemental Response: “Lake City Police Department does not have a daily weapons log. Weapons are checked out to an officer and remain with the officer until returned. The Use of Force form indicates that the taser deployed on Plaintiff on 3/12/15 was used by Officer Mark Strickland. The numbers and types of weapons checked out to all other officers are irrelevant. Dissemination of this information would be a security risk for these officers.”

         Plaintiff argues that this information is “highly relevant” because it would show whether Officers Stewart and Strickland were truthful when they stated that Officer Stewart did not have a taser on March 12, 2015. The court agrees that information regarding whether Officer Stewart had a taser on March 12, 2015, is relevant because he was one of the responding officers and Plaintiff alleges that both Strickland and Stewart used their taser on him. The court agrees with Defendants that information regarding other officers' possession of a taser is irrelevant. Nevertheless, Defendants have stated they do not maintain a daily weapons log. Defendants are directed to provide an affidavit or other sworn statement attesting to the veracity of this response within ten days of the date of this order.

         (6) If the Lake City Police Department does not have a “Weapon's Log” I'm requesting that the department “LCPD” disclose information indicating which “taser” which would include the serial number is assigned ...


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