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McDougald v. Esham

United States District Court, S.D. Ohio, Western Division

February 21, 2018

JERONE MCDOUGALD, Plaintiff,
v.
LIEUTENANT ESHAM, et al., Defendants.

          ORDER AND REPORT AND RECOMMENDATION

         Karen L. Litkovitz, United States Magistrate Judge

         Plaintiff Jerone McDougald, an inmate at the Southern Ohio Correctional Facility ("SOCF") proceeding pro se, brings this civil rights action under 42 U.S.C. § 1983 alleging that prison officials violated his Eighth Amendment rights in relation to several incidents where he was directly and indirectly exposed to pepper spray. (See Docs. 5, 7, 8). This matter is before the Court on defendants' motion for summary judgment (Doc. 51) and plaintiffs response in opposition. (Doc. 69). This matter is also before the Court on plaintiffs motion for an order compelling discovery. (Doc. 68).

         I. Background

         A. Plaintiffs allegations

         Plaintiffs complaint and amended complaints allege that he was directly exposed to OC ["oleoresin capsicum"]/pepper spray on July 22, 2015 and August 21, 2015. He also alleges that on February 5, 2016, February 23, 2016, March 7, 2016, March 28, 2016, and March 31, 2016, he was exposed to passive or secondhand pepper spray that resulted in breathing difficulties, swelling of his mucous membranes, a runny nose, burning eyes, and headaches. (Docs. 5, 7, 8). Plaintiff alleges that he requested medical treatment following the pepper spray exposure but was denied by defendants Lt. Eshem[1]; Correctional Officer ("CO.") Andre; Sgt. Bailey; CO. Crabtree; CO. Distel; Lieutenant Dyer; Warden Erdos; CO. Grooms; CO. Hale; Lt. Joseph; CO. Keating; Mrs. Lightle; CO. Queen; CO. Stone; CO. Porter; CO. Mullens; and Lt. Smith.[2]

         Plaintiff asserts Eighth Amendment claims against defendants for the alleged pepper spray incidents.

         B. Pleadings Background

         Plaintiff filed a motion for leave to proceed in forma pauperis in this action on April 27, 2016. (Doc. 1). Thereafter, the Court granted plaintiff leave to submit amended complaints.

         (Doc. 6). On October 4, 2016, the Court recommended that plaintiffs additional motions for leave to amend be denied. (Doc. 25). On November 30, 2016, the District Court adopted this Court's recommendation. (Doc. 26). On July 17, 2017, defendants Andre, Bailey, Crabtree, Distel, Dyer, Erdos, Eshem, Grooms, Hale, Joseph, Keating, Lightle, Queen, and Stone filed their first motion for summary judgment. (Doc. 51). In light of a discovery order granting plaintiffs motion to compel, the Court granted plaintiff until February 7, 2018 to file a response in opposition to defendants' motion for summary judgment. (Doc. 59). On February 5, 2018, plaintiff filed a response in opposition to defendants' motion for summary judgment, which solely requests additional discovery. (See Doc. 69).

         C. Discovery Background

         The Court entered a calendar order on September 16, 2016 setting an initial discovery deadline of March 19, 2017. (Doc. 22). On February 21, 2017, plaintiff filed his first motion for an order compelling defendants to produce documents for inspection and copying and compelling defendant Ron Erdos to fully answer interrogatories. (Doc. 29). In response, defendants explained that they had been working in good faith to comply with plaintiffs discovery requests, but needed additional time to gather all of the necessary information and documentation. (Doc. 33). On March 3, 2017, the Court issued an order denying plaintiffs motion to compel and granting both parties' requests for additional time to complete discovery. (Doc. 35). The Court entered a modified discovery deadline of June 15, 2017. (Id.).

         On June 9, 2017, plaintiff filed a second motion for an order compelling defendants to produce documents for inspection and copying and compelling defendant Erdos to fully answer interrogatories. (Doc. 47). On November 13, 2017, the Court ordered defendants to file a response to plaintiffs motion to compel. (Doc. 55). Defendants did not timely comply with this order, and on December 21, 2017, the Court granted plaintiffs second motion to compel and ordered defendants to respond to plaintiffs first request for production of documents and first set of interrogatories. (Doc. 59).

         Following the Court's order granting the motion to compel, defendants submitted a status report on the discovery issues outlined above on December 27, 2017. Defendants aver that they complied with plaintiffs discovery requests in accordance with the Court's December 21, 2017 Order. (Doc. 63 at 1). Defendants explained that on July 18, 2017, they sent plaintiff a letter that included defendant Erdos' interrogatory responses and defendant Eshem's interrogatory responses as an attachment. (Id.). Defendants stated that on December 4, 2017, they sent plaintiff a document with an updated response to his request for production of documents. (Id.). Defendants indicated that on December 21, 2017, they complied with the Court's order and resent plaintiff the following documents: Defendant Warden Erdos' Responses to Plaintiffs First Set of Interrogatories (originally mailed on July 18, 2017); Defendant Lt. Eshem's Response to Plaintiffs First Set of Interrogatories (originally mailed on July 19, 2017); and Defendants' Updated Response to Plaintiffs Request for Production of Documents (originally mailed on December 4, 2017). (Id. at 2).

         On February 1, 2018, plaintiff filed a third motion for an order compelling discovery. (Doc. 68).

         II. Motion to Compel (Doc. 68) and Fed.R.Civ.P. 56(d) Declaration Requesting Additional Discovery (Doc. 69).

         Plaintiff asks the Court to compel defendants to produce additional discovery. (Doc. 68).

         Plaintiff requests that defendants be compelled to produce the following documents for inspection and copying: (1) any and all incident reports, conduct reports or copies involving the incidents on February 5, 2016, February 23, 2016, March 7, 2016, March 28, 2016, and March 31, 2016 as mentioned in the complaint; (2) SOCF rules and regulations on the use of OC spray; (3) DVR footage of incidents on February 5, 2016, February 23, 2016, March 7, 2016, March 28, 2016, and March 31, 2016 as mentioned in the complaint; (4) DVR footage of an incident on August 21, 2015 in the H-corridor en route to the J-2 housing unit at 4:30-5:30 p.m.; (5) DVR footage of an incident on July 22, 2015 at 5:00-5:30 p.m. showing plaintiff being escorted to the shower with his cuffs on; and (6) the Correctional Institutional Inspection Committee use of force checklist. (Doc. 68). In addition to his motion to compel, plaintiff asserts as his only argument in opposition to defendants' motion for summary judgment that additional discovery is needed. (See Doc. 69).

         In their status report on discovery, defendants represent they have fully complied with the Court's December Order and produced all requested discovery. (Doc. 63). Instead of specifically responding or objecting to defendants' status report, plaintiff has filed another motion to compel discovery, generally reiterating the need for certain items of discovery.

         Plaintiff has not identified whether defendants have objected to certain items; whether they have simply failed to comply with the request; or whether they have indicated that certain items he is requesting, such as DVR footage of certain events, do not exist. (See, e.g., Doc. 33 at 4: "If DVR footage exists as to alleged claims Plaintiff brings herein, he will be able to review same under institutional rules; however, he is not permitted to keep footage.")- Plaintiff has not attached to his motion defendants' responses to his discovery requests which he believes are deficient to enable the Court to discern what deficiencies actually exist. See S.D. Ohio Civ. R. 7.2(e). Without any clarification from plaintiff on the deficiencies in defendants' discovery responses, the motion to compel is denied.

         Plaintiff also appears to seek an extension of time to respond to the motion for summary judgment based on alleged discovery denials. Attached to his "motion opposing summary judgment of defendants" is plaintiffs declaration pursuant to Fed.R.Civ.P. 56(d). (Doc. 69 at 2). In his declaration, plaintiff requests: (1) any and all incident reports, conduct reports involving disputed incidents on February 5, 2016, February 23, 2016, March 1, 2016, [3] March 28, 2016, and March 31, 2016 as mentioned in his complaint; (2) SOCF rules and regulations on the use of OC spray; and (3) DVR footage of incidents on February 5, 2016, February 23, 2016, March 7, 2016, March 28, 2016, and March 31, 2016 as mentioned in his complaint. (McDougald Declaration, Doc. 69 at ¶ 4). Plaintiff alleges, "This discovery material is relevant due to the documentation of how much OC spray plaintiff was exposed to, was the force excessive, and whats (sic) the rules governing the use of OC spray and the DVR footage capturing these unlawful encounters, and was plaintiff denied medical care after the fact." (Id. at ¶5).

         Rule 56(d)[4] governs the procedures to be followed when a party alleges additional discovery is necessary to respond to a motion for summary judgment:

The affidavit or declaration required by the rule must "indicate to the district court [the party's] need for discovery, what material facts [the party] hopes to uncover, and why [the party] has not previously discovered the information." Cacevic v. City of Hazel Park, 226 F.3d 483, 488 (6th Cir. 2000) (citing Radich v. Goode, 866 F.2d 1391, 1393-94 (3d Cir. 1989)). A motion under Rule 56(d) may be properly denied where the requesting party '"makes only general and conclusory statements [in the supporting affidavit or declaration] regarding the need for more discovery and does not show how an extension of time would have allowed information related to the truth or falsity of the [document] to be discovered, '" Ball v. Union Carbide Corp., 385 F.3d 713, 720 (6th Cir. 2004) (quoting Ironside v. Simi Valley Hasp., 188 F.3d 350, 354 (6th Cir. 1999)), or where the affidavit or declaration "lacks 'any details' or 'specificity.'" Id. (quoting Emmons v. McLaughlin, 874 F.2d 351, 357 (6th Cir. 1989)). The importance of complying with Rule 56(d) cannot be over-emphasized. See Cacevic, 226 F.3d at 488. Finally, whether or not to grant a request for additional discovery falls within the trial court's discretion. Egerer v. Woodland Realty, Inc., 556 F.3d 415, 426 (6th Cir. 2009).

Bloodworth v. Timmerman-Cooper, No. 2:10-cv-l 121, 2013 WL 950931, at *1 (S.D. Ohio Mar. 12, 2013).

         The discovery sought by plaintiff set forth in his declaration relates to his alleged exposure to passive or secondhand pepper spray on February 5, 2016, February 23, 2016, March 7, 2016, March 28, 2016, and March 31, 2016. These requests involve incidents where he was not the direct target of the pepper spray. Rather, pepper spray was used on other inmates and allegedly wafted into plaintiffs cell. It is not clear how incident reports, conduct reports, or DVR footage involving the alleged misconduct of other inmates who were pepper sprayed and SOCF rules and regulations regarding the use of OC spray under these circumstances have any relevance to the secondhand pepper spray exposure plaintiff allegedly suffered and the alleged denial of medical care he now claims. Plaintiff has failed to justify a further delay in this case to obtain discovery related to secondhand pepper spray exposure. Moreover, plaintiff has not indicated in his Rule 56(d) declaration that he needs discovery related to the direct pepper spray exposure incidents on July 22, 2015 and August 21, 2015 in order to respond to defendants' motion for summary judgment, which also justifies forbidding additional discovery that would needlessly delay this matter further. Therefore, in addition to plaintiffs third motion to compel, plaintiffs request for a further extension of time to complete discovery under Rule 56(d) is also denied. In light of the resolution of these discovery issues, the Court will now turn to defendants' motion for summary judgment.

         III. Summary Judgment Standard

         A motion for summary judgment should be granted if the evidence submitted to the Court demonstrates that there is no genuine issue as to any material fact, and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). See Celotex Corp. v. Catrett, 477U.S. 317, 322 (1986); Anderson v. Liberty lobby, Inc., 477 U.S. 242, 247 (1986). A grant of summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Satterfield v. Tennessee, 295 F.3d 611, 615 (6th Cir. 2002). The Court must evaluate the evidence, and all inferences drawn therefrom, in the light most favorable to the non-moving party. Satterfield, 295 F.3d at 615; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio, 475 U.S. 574, 587 (1986); Little Caesar Enters., Inc. v. OPPC, LLC, 219 F.3d 547, 551 (6th Cir. 2000).

         The trial judge's function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine factual issue for trial. Anderson, 477 U.S. at 249. The trial court need not search the entire record for material issues of fact, Street v. J. C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989), but must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S.at 251 -52, "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587. "In response to a properly supported summary judgment motion, the non-moving party 'is required to present some significant probative evidence which makes it necessary to resolve the parties' differing versions of the dispute at trial." Maston v. Montgomery Cty. Jail Med. Staff Pers., 832 F.Supp.2d 846, 849 (S.D. Ohio 2011) (quoting Sixty Ivy St Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987)).

         Because plaintiff is a pro se litigant, his filings are liberally construed. Spotts v. United States,429 F.3d 248, 250 (6th Cir. 2005) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972) (stating that the Court holds pleadings of pro se litigants to less stringent standards than formal pleadings drafted by lawyers)); Boswell v. Mayer,169 F.3d 384, 387 (6fh Cir. 1999) (pro se plaintiffs enjoy the benefit of a liberal construction of their pleadings and filings). However, a party's status as a pro se litigant does not alter his duty to support his factual assertions with admissible evidence. Maston, 832 F.Supp.2d at 851-52 (citing Viergutz v. Lucent Techs., Inc., 375 Fed.Appx. 482, 485 ...


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