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Whiteside v. Parrish

January 9, 2007

NORMAN V. WHITESIDE, PLAINTIFF,
v.
JONDREA PARRISH., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Norah McCann King

OPINION AND ORDER

This is a civil rights action under 42 U.S.C. § 1983 ("Section 1983") brought by plaintiff Norman V. Whiteside ("plaintiff"), who is in the custody of the State of Ohio Department of Rehabilitation and Correction ("ODRC"), and currently housed at the Madison County Correctional Institution ("MaCI"). With the consent of the parties, 28 U.S.C. § 636(c), this matter is before the Court on numerous motions filed by plaintiff, Doc. Nos. 33, 38, 39, 42, 43, 47, 71 and defendants' motion to strike, Doc. No. 70. The Court will address each below.

A. Plaintiff's Motion for Order to Show Cause Supplement, Doc. No. 43, and Plaintiff's Motion to Supplement and for Leave to Do So, Doc. No. 47

In Plaintiff's Motion for Order to Show Cause Supplement, Doc. No. 43, and in Plaintiff's Motion to Supplement and for Leave to Do So, Doc. No. 47, plaintiff requests that this Court accept supplements to three motions pending before this Court, i.e., Doc. Nos. 33, 39 and 42. In opposition, defendants argue that leave to supplement should be denied because the three underlying motions which plaintiff seeks to supplement are without merit. However, defendants do not argue that granting plaintiff's motions to supplement will prejudice them. In this circuit, there is a "strong preference that claims be adjudicated on their merits," Coleman v. Shoney's, Inc., 79 Fed. Appx. 155, 157 (6th Cir. 2003) (citing Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991)), and the Court will not forgo consideration of documents that go to the merits of plaintiff's motions. Therefore, Plaintiff's Motion for Order to Show Cause Supplement, Doc. No. 43, and Plaintiff's Motion to Supplement and for Leave to Do So, Doc. No. 47, are both GRANTED.

B. Plaintiff's Motion for Order to Depose Sgt. Ray Campbell, Doc. No. 33

In Plaintiff's Motion for an Order to Depose Sgt. Ray Campbell, Doc. No. 33, plaintiff asks the Court to order Sergeant Ray Campbell, a guard at MaCI who is not named as a party to this action, to submit to a deposition to be conducted by a "non-stenographic method."

In the Complaint, plaintiff alleges that it was Sergeant Campbell's confiscation of plaintiff's legal materials in April 2003, that effectively denied plaintiff his constitutional right of access to the courts. Complaint ¶¶ 16-23. Plaintiff also alleges that Sergeant Campbell told plaintiff's sister that the two named defendants in this action, Jondrea Parrish and Virginia Workman, ordered him to confiscate plaintiff's legal materials. Moreover, a fellow inmate avers that he heard Sergeant Campbell state that, if he is required to testify in this action, he will testify that he does not recall the incident. Declaration of Edward Clark attached to Plaintiff's Motion for an Order to Depose Sgt. Ray Campbell. Thus, plaintiff requests that he be permitted to depose Sergeant Campbell regarding whether the defendants in this action ordered him to confiscate plaintiff's legal materials in April 2003. Alternatively, plaintiff asks that defendants stipulate that they ordered Sergeant Campbell to confiscate plaintiff's legal materials.

Defendants have not responded to this request for a stipulation in lieu of a deposition.

A non-party can be compelled to attend a deposition only by the proper issuance and service of a subpoena pursuant to Fed. R. Civ. P. 45. Rather than pursue that procedure, however, plaintiff may propound requests for admission, see Fed. R. Civ. P. 33, asking each defendant to either admit or deny that she directed Sergeant Campbell to confiscate plaintiff's legal materials in April 2003.

Accordingly, Plaintiff's Motion for an Order to Depose Sgt. Ray Campbell is DENIED without prejudice to renewal should defendants deny that they ordered Sergeant Campbell to confiscate plaintiff's legal materials in April 2003.

C. Plaintiff's Motion for Order to Depose Madison Correctional Staff, Doc. No. 39, and Plaintiff's Motion for Order to Show Cause, Doc. No. 42

In Plaintiff's Motion for Order to Depose Madison Correctional Staff, Doc. No. 39, plaintiff requests that this Court order Sergeant Campbell, MaCI staff member Marcie Henceroth and the two named defendants in this action to submit to depositions "based upon newly discovered information." Id. at 1. The newly discovered information to which plaintiff refers is his suspension from the Madison Music Association, a group of inmate musicians. Id.

In Plaintiff's Motion for Order to Show Cause, Doc. No. 42, plaintiff asks the Court to order defendants to show cause why he was "put in the hole today and given a bogus charge of forgery for sending this court a document which he believes was signed and/or approved by Sgt. Ray Campbell, without due process and to further a retaliatory agenda." Id. at 1.

In Plaintiff's Motion to Supplement and for Leave to Do So, Doc. No. 47, plaintiff complains that the Rules Infraction Board ("RIB") hearing at which he was found guilty of possessing a forged document was unfair. Similarly, in Plaintiff's Reply to Defendants' Memorandum in Opposition to Plaintiff's Motion to Supplement and for Leave to Do So, Doc. No. 61, plaintiff complains about the RIB hearing and explains in detail why he believes that the evidence was insufficient to support a finding of possession of a forged document. Finally, in Plaintiff's Reply to Defendants' Memorandum in Opposition to Plaintiff's Motions to Depose Staff and for Order to Show Cause, plaintiff complains, again, about his conviction on a charge of ...


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