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Waters v. Stewart

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

January 31, 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.

          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 are Plaintiff's Motion for Reconsideration (ECF No. 120), Plaintiff's Motion for Default Judgment (ECF No. 130) pursuant to Fed.R.Civ.P. 37, Plaintiff's Motion to Stay Response to Motion for Summary Judgment (ECF No. 144) and Plaintiff's Rule 56(d) Motion (ECF No. 145). 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

         A. Motion for Reconsideration

         Plaintiff asks the undersigned to reconsider its Order (ECF No. 115) granting in part and denying in part his motion to compel. Specifically, he asks the court to consider his Reply (ECF No. 118) to Defendants' Sur-reply, which was filed after the Order and in which he asks the court to direct Defendants to produce additional information not previously requested in his Requests for Production.

         Rule 54(b) of the Federal Rules of Civil Procedure governs the reconsideration of interlocutory orders, including discovery orders. See McCook Metals LLC v. Alcoa, Inc., 249 F.3d 330, 335 (4th Cir.2001); Quigley v. United States, 865 F.Supp.2d 685, 699 (D.Md.2012). In considering whether to revise interlocutory decisions, district courts in this Circuit have looked to whether movants presented new evidence, United States v. Duke Energy Corp., 218 F.R.D. 468, 474 (M.D. N.C. 2003), or whether the court has “obviously misapprehended a party's position or the facts or applicable law.” Id. Plaintiff offers no new evidence, applicable law or arguments that could not have been raised in Plaintiff's original motion or reply. Furthermore, the court cannot compel a party to produce documents not previously requested from the opposing party. For these reasons, Plaintiff's Motion for Reconsideration (ECF No. 120) is DENIED.

         B. Motion for Default Judgment[1]

         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 number 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.[2]

         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 ...

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