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Waters v. Stewart

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

January 30, 2018

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.

          REPORT AND RECOMMENDATION

          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 for Default Judgment (ECF No. 130) pursuant to Fed.R.Civ.P. 37. Defendants filed a Response (ECF. No. 131), to which Plaintiff filed a Reply (ECF No. 134). 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. This Report and Recommendation is entered for review by the district judge.

         II. DISCUSSION

         Plaintiff moves for default judgment against Defendants pursuant to Fed.R.Civ.P. 37, arguing that they failed to comply with an Order (ECF No. 115) granting in part his motion to compel and directing them to respond to certain discovery requests. Specifically, the undersigned directed Defendants to respond to Plaintiff's Requests for Production six, eight, twenty, and twenty-two, and to provide an affidavit attesting to the veracity of their supplemental responses to many of the remaining Requests within ten days of the date of the Order. On March 9, 2017, Defendants provided Plaintiff the affidavit of Sgt. Trey Miles, who provided second supplemental responses to the four requests listed above. Plaintiff acknowledges receiving this affidavit. As to Plaintiff's Request for Production No. eight, in which he requested “any and all audio/video records from the Lake City Police Department Police vehicles that was dispatched to 439 South Morris Street, Lake City, South Carolina on 3/12/15 at or about 7:30” (dash cam video) Sgt. Miles averred “we have requested a return of the requested materials from the Federal Prosecutor but, to date, have been unsuccessful in obtaining same. We are continuing the follow up and will supplement this request.” Miles Aff. ¶ 5 (Ex. to Def. Resp.). In addition, the affidavit included a final paragraph stating

These answers are true and correct to the best of my knowledge and I attest to the veracity of these responses. I attach a copy of Defendants' Stewart, Strickland, Backhuss, and Cooper's Supplemental Responses to Plaintiff's Request for Production and incorporate the same into this affidavit.

Miles Aff. ¶ 8.

         Plaintiff complains that, at the time he filed the present motion in July, he still had not received the dash cam video. Plaintiff also complains that Defendants did not provide an affidavit attesting to the veracity of the Defendants' previous discovery responses as directed by the court. For these reasons, Plaintiff asks the court to enter default judgment against Defendants as a sanction for their failure to respond.[1]

         The Court has authority pursuant to Fed.R.Civ.P. (b)(2)(A) to sanction a party for failure to comply with a court order regarding discovery:

(A) For Not Obeying a Discovery Order. If a party or a party's officer, director, or managing agent--or a witness designated under Rule 30(b)(6) or 31(a)(4)--fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following:
(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order ...

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