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West v. Sergeant Temple

United States District Court, M.D. Georgia, Macon Division

June 9, 2015

KEVIN WEST, Plaintiff,
v.
Sergeant TEMPLE, Defendant.

ORDER

STEPHEN HYLES, Magistrate Judge.

Currently pending before the Court are Plaintiff's motion to appoint counsel (ECF No. 46), four motions to compel discovery (ECF Nos. 50-51, 56, 59), two motions for leave to file a deposition upon written questions (ECF No. 55, 61), two motions for an order to subpoena (ECF Nos. 54, 60), a motion seeking an order to demand inspection (ECF No. 62), a motion for an extension of time to complete discovery (ECF No. 66), and two motions to amend (ECF Nos. 48, 65). For the reasons explained below, Plaintiff's motion to appoint counsel is denied, his discovery motions are denied, and his motions to amend are granted in part and denied in part.

BACKGROUND

Plaintiff alleges that on July 30, 2013, he was being taken to court by Sergeants Copeland and Sirmans. Compl. 5. The transport bus stopped at Dooly State Prison to let inmates on and off the bus. According to Plaintiff, Copeland and Sirmans directed Plaintiff and the other inmates who were not staying at Dooly State Prison to exit. Id. While Plaintiff was off the bus, Defendant Sergeant Temple, "for no reason, " allegedly slammed Plaintiff, who was in waist chains, leg irons, and handcuffs, onto the concrete. Id. Another unidentified officer then dragged Plaintiff by his leg irons, while Defendant Temple "held [Plaintiff's] arms on the ground and had his knee in [Plaintiff's] back[, ]" which left Plaintiff's elbows and fingers "badly" scraped. Compl. 5. Plaintiff thereafter asked Defendant Captain Williams for a grievance form, but was refused one. Plaintiff believes that the assault "would have never happened, " but for Copeland and Sirmans ordering Plaintiff to exit the bus.

Plaintiff originally brought this action against Sergeants Copeland, Sirmans, Temple, and Captain Williams for failure to provide him with grievance forms and for cruel and unusual punishment. Compl. 5. After preliminary review, only the claim against Sergeant Temple for a violation of Plaintiff's Eighth Amendment right to be free of excessive force was allowed to proceed. Order 1-2, Apr. 28, 2014, ECF No. 21. Defendant Temple thereafter moved to dismiss for, inter alia, failure to state a claim and qualified immunity. Br. in Supp. of Mot. to Dismiss 3-9, ECF No. 25-1. In response, Plaintiff filed a motion to amend his complaint (ECF No. 29) in addition to his opposition to the motion to dismiss (ECF No. 30). After the motion to dismiss was fully briefed, Plaintiff also moved to amend his complaint to add as a defendant the unidentified "John Doe" officer that he alleges dragged him across the ground at Dooly State Prison. Second Mot. to Am. 1-2, ECF No. 33.

Plaintiff's motion to amend his complaint was denied as futile; additionally, Defendant's motion to dismiss for failure to state a claim and qualified immunity was also denied after briefing and recommendation by the undersigned. Order 5, Feb. 23, 2015, ECF No. 38. Subsequently, Plaintiff filed a new motion to appoint counsel (ECF No. 46), as well as several motions to compel discovery (ECF Nos. 50-51, 56, 59), motions for leave to file depositions upon written questions (ECF No. 55, 61), motions for an order to subpoena (ECF Nos. 54, 60), as well as a motion to demand inspection (ECF No. 62), a motion for extension of time to complete discovery (ECF No. 66) and two motions to amend (ECF Nos. 48, 65). Defendant responded to motions to compel, with briefing in opposition, general objections, and provided documents per Plaintiff's discovery requests. Def.'s Objs. & Resps. to Pl.'s First Interrogs., ECF No. 58-1. These motions are now ripe for review.

DISCUSSION

I. Motion to Appoint Counsel

This is Plaintiff's third motion to appoint counsel. As was previously explained to Plaintiff, under 28 U.S.C. ยง 1915(e)(1), the district court "may request an attorney to represent any person unable to afford counsel." However, there is "no absolute constitutional right to the appointment of counsel" in a section 1983 lawsuit. Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987). Appointment of counsel is a privilege that is justified only by exceptional circumstances. Lopez v. Reyes, 692 F.2d 15, 17 (5th Cir. 1982). In deciding whether legal counsel should be provided, the Court considers, among other factors, the merits of Plaintiff's claim and the complexity of the issues presented. Holt v. Ford, 682 F.2d 850, 853 (11th Cir. 1989). Plaintiff has set forth the essential factual allegations underlying his claims and the Court will determine whether Plaintiff's allegations support a colorable legal claim. This process is routine in pro se prisoner actions and therefore "exceptional circumstances" justifying appointment of counsel do not exist. Accordingly, Plaintiff's third motion to appoint counsel (ECF No. 46) is denied.

II. Discovery Motions

Plaintiff filed ten discovery motions. Four motions seek to compel discovery (ECF Nos. 50-51, 56, 59), two motions seek leave to file a deposition upon written questions (ECF No. 55, 61), two motions seek an order to subpoena (ECF Nos. 54, 60), one motion seeks an order to demand inspection (ECF No. 62), and one motion seeks an extension of time to complete discovery (ECF No. 66). First, Plaintiff's motions to compel seek the court's intervention in obtaining answers to his interrogatories and requests for production. Additionally, Plaintiff requests sanctions in the amounts of $150.00, $200.00, and $100.00 from Defendant on the grounds that he did not receive timely answers from opposing counsel and that there was no substantial justification for not answering the requests. See First Mot. Order Compel Disc., ECF No. 50; Second Mot. Order Compel Disc., ECF No. 51; Third Mot. Order Compel Disc., ECF No. 56. Second, Plaintiff's motions for leave to file deposition upon written questions seek leave of the court to depose an unspecified witness, to gain unspecified information which Plaintiff contends is very relevant and would greatly assist him in litigating his case. Mot. Leave File Dep., ECF Nos. 55, 61. Third, Plaintiff's seeks a court order issuing a subpoena to Defendant which would require him to provide requested documents, including a copy of log book entries at the Dooly State Prison on July 30, 2013, and the Georgia Department of Corrections (GDOC) numbers of the inmates on the transport bus at the time of the incident. First Mot. Order Subpoena, ECF No. 54. Plaintiff submitted identical motions for the former purpose on both May 3, 2015 and May 6, 2015. Second Mot. Order Subpoena, ECF No. 60. Additionally, Plaintiff filed a letter requesting a subpoena to the GDOC in order to obtain his medical records. Letter, Apr. 23, 2015, ECF No. 49. Fourth, Plaintiff's motion to demand inspection seeks the authority to inspect Dooly State Prison where Plaintiff contends that there is a surveillance camera which captured the events on July 30, 2013. Mot. Demand Inspection, ECF No. 62. Defendant states that the only video of the incident is from a hand-held camera and has provided Plaintiff the opportunity to review such video. Def.'s Objs. & Resps. to Pl.'s First Req. Prod. Docs. 6, ECF No. 58-2. Finally, Plaintiff seeks an extension of the discovery deadline. For the reasons explained in detail below, Plaintiff's motions to compel discovery (ECF Nos. 50-51, 56, 59) are denied, his motions for leave to file deposition upon written questions (ECF Nos. 55, 61) are denied, his motions for order to subpoena (ECF Nos. 54, 60) are denied, his motion to demand inspection (ECF No. 62) is denied, and his motion for an extension of the discovery deadline is denied.

A. Motions to Compel Discovery

Plaintiff filed two motions to compel discovery on April 27, 2015, pursuant to Federal Rule of Civil Procedure 37(a). One motion seeks an order compelling answers to his interrogatory requests, and one seeks an order compelling the production of documents. See generally, First Mot. Order Compel Disc. 1; Second Mot. Order Compel Disc. 1-2. Each motion seeks sanctions, in the form of "reasonable expenses" of litigating the motion to compel, against Defendant for failing to respond to Plaintiff's requests. However, Defendant responded to Plaintiff's requests on April 23, 2015. See Def.'s Objs. & Resps. to Pl.'s First Interrogs. 11; Def.'s Objs. & Resps. to Pl.'s First Req. Prod. Docs. 6. Although Plaintiff's service was likely improper, Defendant's counsel timely served responses to the requests within the 30-day period and three day extension through mail service. See Fed.R.Civ.P. 6(a)(1)(C), 33(b)(2). Therefore, Plaintiff's contentions that Defendant did not respond and that Federal Rule of Civil Procedure 37(a)(4) entitles him to a reasonable fee assessment for the delay in answering is misguided. Plaintiff's first two motions to compel (ECF Nos. 50, 51) are consequently denied.

Plaintiff filed two additional motions to compel discovery - one on May 2, 2015 and one on May 5, 2015. (ECF Nos. 56, 59.) These two motions seek the same relief - Plaintiff asks Defendant to "fully" answer his interrogatory request numbers 3, 4, 6, 9, 20, and 24. Defendant has responded to each of these interrogatory requests. Def.'s Objs. & Resps. to Pl.'s First Interrogs. 5-7, 9-10. The fact that Plaintiff disagrees with the content of some of Defendant's responses is not a ground for compelling discovery. See, e.g., Gray v. Faulkner, 148 F.R.D. 220, 223 (N.D. Ind. 1992) ("The fact that a party may disbelieve or disagree with a response to a discovery request, however, is not a recognized ground for compelling discovery, absent some indication beyond mere suspicion that the response is incomplete or incorrect."); Rong Ran v. Infinite Energy, Inc., No. 1:07-cv-249-MMP-AK, 2010 WL 148240, at *1 (N.D. Fla. Jan. 12, 2010) ("Defendants have responded to Plaintiff's ...


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