Osha A. Johnson, Plaintiff, v. Lieutenant Christopher Timmons; Lieutenant Desmond Weston; Lieutenant Robinson; Lieutenant McKissack; Captain Damon Greene; and DHO Brown, Defendants C/A No. 5:23-3368-JFA-KDW United States District Court, D. South Carolina Filed October 09, 2024 Counsel Osha A. Johnson, Columbia, SC, Pro Se. Daniel C. Plyler, Rachel Elizabeth Lee, Smith Robinson Holler DuBose and Morgan, LLC, Columbia, SC, for Defendants. West, Kaymani D., United States Magistrate Judge ORDER There are several pending motions before this court filed by Plaintiff. These motions are related to the request to conduct discovery in some form or fashion. Prior to considering the content of these motions, the court draws attention to the procedural timeline regarding discovery in this case. Within the year since this Plaintiff commenced litigation, Plaintiff has filed twenty motions in this case ranging from discovery issues, to requests to show cause, and injunctive relief, as well as several letters related to his claims. After the filing of this case, the Defendants involved in the lawsuit at that time filed separate motions seeking dismissal of Plaintiff's case. After seeking additional time to respond to the pending motions, alleging he was having trouble accessing the law library, Plaintiff instead filed a motion seeking to amend his complaint with a document spanning more than 200 pages. The court granted Plaintiff's motion. Then, after Defendants filed motions seeking dismissal of the supplemental Complaint, the undersigned carefully analyzed Plaintiff's pleadings and recommended that some but not all of Plaintiff's claims, and some but not all of the named Defendants, be dismissed based upon a failure to state a claim. The court ultimately adopted this recommendation on July 22, 2024, allowing two of Plaintiff's claims to go forward. Dissatisfied with this order, Plaintiff appealed. At the same time, Plaintiff has filed several motions, five of which have been filed in the past month. On September 16, 2024, Plaintiff filed two Motions: (1) Motion for Order Compelling Defendants to Produce Documents, and (2) Motion and Notice for Order Requesting the Production of Prisoner. ECF Nos. 138; 139. On September 18, 2024, Plaintiff filed a Motion for Deposition of Non-Party Witnesses. ECF No. 148. On September 23, 2024, Plaintiff filed two Motions: (1) Motion Requesting the Court to Except [sic] Plaintiff's Amended Complaint, and (2) Motion for Extension of Discovery Obstructions by Opposing Party. ECF Nos. 149; 150. The court will now consider these Motions in turn. 1. Motion for Order Compelling Defendants to Produce Documents In his Motion seeking to compel Defendants to produce documents, Plaintiff seeks the following: (1) SCDC policies related to use of force; (2) Defendants’ personnel files; (3) any video of the incident with other inmates and the alleged use of force by one or more Defendants; (4) responses from discovery sent to DHO Brown in April 2024; (5) records or recordings from the disciplinary hearing; and (6) what he terms the “full investigative report.” ECF No. 138. The remaining Defendants filed a response to this Motion on October 7, 2024. ECF No. 155. These Defendants outlined the discovery process followed by Plaintiff as follows. On October 23, 2023, Plaintiff served several sets of interrogatories on Defendants McCullough, Timmons, and Weston. ECF No. 155 at 1-2. These Defendants timely responded to the discovery requests and attached the discovery responses for review. Plaintiff then served discovery requests dated January 1, 2024 upon several Defendants, including DHO Brown, who remains a Defendant in this case. See Exhibit B attached to Defs.’ Response at ECF No. 155-2.[1] Defendants argue that because this court issued a protective order staying discovery on February 2, 2024, those Defendants were relieved of the obligation to respond to this discovery request. ECF No. 155 at 2. Defendants state that after the stay of discovery was lifted, Plaintiff untimely served additional requests for production on September 3, 2024. See Exhibit C attached to Defs.’ Response at ECF No. 155-3. Defendants assert they timely responded to this discovery request on October 3, 2024. See Exhibit D attached to Defs.’ Response at ECF No. 155-4. Defendants now assert that Plaintiff is seeking to compel discovery responses for documents previously produced and/or objected to by Defendants. The court is mindful of the fact that in December of 2023, in response to a motion filed by Plaintiff alleging Defendants did not respond to discovery, Defendants informed the court that they timely responded to Plaintiff's discovery requests in December of 2023, and such facts were reiterated to Plaintiff in the court's text order dated December 7, 2023. ECF No. 74. Further, from February 2, 2024 through the order dated July 22, 2024, there was a stay of discovery in this case. Despite this stay, based on some of the filings by the parties, it appears that Plaintiff continued to try to engage in discovery. The court adopted the recommendation of the undersigned on July 22, 2024, which triggered the end of the stay of the discovery. See ECF No. 112. This order adopted the recommendation that some, but not all, claims should be dismissed, and some, but not all, Defendants should be dismissed. ECF No. 112. The next day, a scheduling order was issued in the case setting forth the deadline for discovery. ECF No. 114. The court is mindful of Defendants’ argument that pursuant to a protective order, Defendant DHO Brown was not required to respond to discovery served on January 1, 2024. However, the court notes that in Defendants’ request for a protective order, they state that Defendants “should not have to respond to Plaintiff's discovery requests until a ruling has been made on their pending Motion to Dismiss.” ECF No. 81 at 4. Since the issuance of the protective order, this court dismissed some but not all of Plaintiff's claims and some named Defendants. However, Defendant DHO Brown remains a defendant for one pending claim in this case. Accordingly, the undersigned directs Defendant DHO Brown to provide applicable responses and/or objections to Plaintiff's discovery requests served on January 1, 2024 on or before November 7, 2024.[2] Additionally, on July 23, 2024, the court received a Motion for Production of Documents and Tangible Things dated July 19, 2024 (during the stay of discovery), totaling more than 80 pages in length. ECF No. 116. The undersigned ultimately denied this Motion in an order dated September 17, 2024. ECF No. 141. Within this order, the undersigned outlined the timeline of discovery requests in this case. ECF No. 141. The court explained that despite there being a stay of discovery, Plaintiff continued to send a variety of discovery requests to Defendants. In responding to Plaintiff's Motion, Defendants asserted that since the issuance of the scheduling order (July 23, 2024), Plaintiff has not served Defendants with any discovery requests. ECF No. 125 at 4. The court denied Plaintiff's Motion as it was sent to the court during a time when there was a stay of discovery in the case; thus, Plaintiff was essentially seeking to compel Defendants to respond to discovery that was sent during the stay. Plaintiff's latest Motion seeking documents is dated September 16, 2024. Within their Response, Defendants indicate they responded to this discovery request on October 3, 2024. See Exhibit D attached to Defs.’ Response at ECF No. 155-4. This response is a letter to Plaintiff indicating they are not bound to respond to the discovery requests because the discovery request was untimely served. Defendants are correct that the Scheduling Order notes that discovery requests shall be served in time for responses to be served by September 23, 2024. However, the court is mindful of the fact that the scheduling order was issued a month prior to this deadline, providing some difficulty for an incarcerated individual to draft and send any additional discovery requests in this time frame. For this reason and keeping in mind the discretion afforded Defendants in scheduling a date to depose Plaintiff, the undersigned finds that Defendants should provide responses or objections to Plaintiff's discovery, to the extent the requests are not duplicative. Without ruling on the discoverability or admissibility of the information Plaintiff seeks, the court directs Defendants to provide Plaintiff responses or objections to the previously requested discovery, attached as Exhibit C to Defendants’ Response, on or before November 7, 2024. As to the specific documents that Plaintiff seeks to compel, the undersigned notes that Defendants have thoroughly responded to Plaintiff as to the video footage requested. It also appears that Defendants have responded or objected to Plaintiff's requests for SCDC policies and officer personnel files.[3] The other discovery sought by Plaintiff (a full investigative report and record of hearing) is not only vague and overly broad, but it appears Defendants have provided the documents that are currently in their possession. Accordingly, other than this court ruling that Defendants need to respond to the pending discovery requests on or before November 7, 2024, the undersigned will not otherwise order Defendants to provide the specific documents Plaintiff has again requested of them to produce. 2. Motion and Notice for Order Requesting the Production of Prisoner In Plaintiff's Motion and Notice for Order Requesting the Production of Prisoner, ECF No. 139, Plaintiff seeks an order directing the South Carolina Department of Corrections to produce him for a physical and mental examination. Rule 35 of the Federal Rules of Civil Procedure allows for a court to order a party “whose mental or physical condition ... is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner.” Fed R. Civ. P. 36(a). This rule does not vest the court with the authority to appoint an expert to examine a party “wishing an examination of himself.” Brown v. United States, 74 F. App'x 611, 614 (7th Cir. 2003). Rather, under appropriate circumstances, Rule 35 allows the court to order a party to submit to a physical examination at the request of the opposing party. Brown, 74 F. App'x at 164; Cabrera v. Williams, 2007 WL2682163 at *2 (D. Neb. Sep. 7, 2007) (denying a prisoner's request for medical examination pursuant to Rule 35). As an initial matter, one purported reason provided by Plaintiff for this request is to assess Plaintiff's claim related to the medical care provided to him, which has already been dismissed. Further the court notes that Plaintiff is not seeking to be examined to receive medical treatment; rather, he states that it would “materially aid the jury.” ECF No. 139 at 3. Here, Plaintiff's remaining claims relate to the alleged use of excessive force by several Defendants and the alleged denial of his due process rights. A physical examination some two years after the events occurred does not appear to serve any cogent evidentiary purpose. Under these circumstances and the case law cited above, Rule 35 does not authorize this court to order that Plaintiff receive the requested examination of himself. Accordingly, Plaintiff's Motion and Notice for Order Requesting the Production of Prisoner, ECF No. 139, is denied. 3. Plaintiff's Motion for Deposition of Non-Party Witness In Plaintiff's Motion for Deposition of Non-Party Witness, ECF No. 148, he seeks to depose the following individuals pursuant to Federal Rule of Civil Procedure Rule 30: (1) Brittney Pondexter; (2) Case Agent Ruby; (3) Behavioral Health Use of Force Reviewer Dave S. Evans; (4) Risk Management Compliance Analyst Lee Davis; (5) Julie Tennant-Caine; and (6) Chief Inmate Grievance Branch Coordinator, McKie. ECF No. 148 at 1. Plaintiff alleges these individuals have knowledge of the circumstances surrounding his lawsuit; however, he only sets forth the reasons he believes Ms. Tennant-Caine and Ms. McKie have any information pertaining to his case. ECF No. 148 at 2-3. Defendants filed a response, objecting to the Motion on two grounds. ECF No. 153. First, Defendants argue that Plaintiff has failed to make any showing that he can pay for the costs of the depositions he requests. ECF No. 153 at 1. Second, Defendants argue that the scheduling order set a discovery deadline, which ended on September 23, 2024.[4] They argue that Plaintiff seeks to depose these individuals outside the discovery period. A party may take an oral deposition of a nonparty by serving a subpoena, in accordance with Federal Rule of Civil Procedure 45 to compel attendance. Here, Plaintiff has not provided all information necessary for issuance of a subpoena. Plaintiff has failed to provide any details as to where the depositions would take place or when he would conduct any such examination. Moreover, as pointed out by Defendants, Plaintiff has not shown that he can afford to pay for the cost of a court reporter or witness fees for any such deposition, which he is still obliged to do despite proceeding in forma pauperis. Polk v. Aldridge, No. 1:22-cv-174, 2023 WL 5153827, at *5 (M.D.N.C. Aug. 10, 2023). Accordingly, Plaintiff's Motion, ECF No. 148, is denied. 4. Motion Requesting the Court to Accept Plaintiff's Amended Complaint On September 23, 2024, Plaintiff filed a Motion Requesting the Court Except [sic] Plaintiff's Amended Complaint. ECF No. 149. After the initial filing of two motions seeking dismissal of the Complaint, Plaintiff sought to amend his Complaint for the first time on November 16, 2023. ECF No. 62. The court granted this amendment, making the operative pleading more than 200 pages of material and information. Defendants then filed two more motions seeking dismissal of the supplemental Complaint. The undersigned, after spending considerable time and effort working through the lengthy pleadings, recommended dismissing all but two of Plaintiff's claims. ECF No. 106. This recommendation was adopted on July 22, 2024. ECF No. 112. Plaintiff then appealed this order around the same time he sought to again amend his pleading. ECF Nos. 122; 131. This time, for the reasons outlined in an order dated September 17, 2024, the undersigned denied his Motion. ECF No. 141. Plaintiff's argument now appears to be that, because the scheduling order allowed for the amendment of pleadings through August 22, 2024, the filing of his Motion to Amend/Correct his Complaint, ECF No. 131, should automatically be accepted. ECF No. 149. Plaintiff is incorrect. A party may amend its pleadings as a matter of course no later than 21 days after serving the pleading, or if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion to dismiss, whichever is earlier. Fed. R. Civ. P. 15(a). Plaintiff did not file his initial amended complaint in this time frame after the filing of both motions to dismiss. Nevertheless, and despite the amended complaint spanning a multitude of pages, the court allowed Plaintiff to amend his complaint. Even after being given a second bite of the apple, and after receiving careful consideration of his pleadings, he filed both an appeal of that ruling and a motion to file yet another amended complaint. The court thoroughly explained to Plaintiff via its previous order why his second amended complaint was denied; however, the reasoning bears repeating. Aside from the deficiencies previously pointed out by this court in its previous ruling, ECF No. 141, Plaintiff does not get continual opportunities to bring the same claims against the same parties simply be re-filing long, and often difficult to decipher pleadings, when this court has previously considered and rejected the claims against the same parties. The events giving rise to Plaintiff's causes of action occurred more than two years ago while Plaintiff was incarcerated. The court has endeavored to carefully construe Plaintiff's pleadings, to the extent it can, into discernible causes of action. His contention that his proposed amended complaint contains allegations based on newly discovered facts and theories is without merit.[5] Plaintiff also argues that because he was unsure whether some of his claims were dismissed with or without prejudice, he should somehow be allowed to re-litigate these claims in this case. However, the undersigned does not find this argument compelling either. ECF No. 131 at 1-2. Finally, Plaintiff submits at the end of his motion that if this court would simply adopt his second amended complaint, it would somehow render his appeal moot. ECF No. 149. To the extent this Motion is to be construed as one seeking this court to reconsider its previous ruling, the court declines to do so. For the reasons previously outlined above, the court denies Plaintiff's Motion, ECF No. 149. 5. Motion for Extension of Discovery Obstruction by Opposing Party Finally, on September 23, 2024, Plaintiff filed a Motion for Extension of Discovery Obstruction by Opposing Party. ECF No. 150. Defendants filed a response on October 7, 2024, ECF No. 154, pointing out that Plaintiff began engaging in discovery as early as October 23, 2023. Defendants further argue that, in recent months, Plaintiff has not diligently participated in discovery and provides no explanation for why he did not engage in discovery such that he would complete discovery on or before the discovery deadline. ECF No. 154 at 3. Finally, Defendants point out that Plaintiff's argument that Defendants have not responded to previously requested discovery does not speak to why Plaintiff needs time to serve additional requests or depose Defendants at this juncture. Id. Plaintiff filed his Motion the day the scheduling order set as the deadline for conducting discovery in this case. Plaintiff argues that he will not be able to complete discovery for the following reasons. First, Plaintiff alleges that Defendants are withholding “most” or “all” of the documents he requested, though he does not detail or outline what said documents are. The undersigned finds this curious because, despite his allegations that he does not have the documents he needs, Plaintiff has not previously sought to depose Defendants, despite the multitude of motions he has filed pertaining to both discovery and other issues alike. Plaintiff next alleges that Defendants have been “obstructive” and used “unlawful tactics” by refusing to cooperate with discovery. Plaintiff does not provide any detail as to what these allegations mean or what conduct they refer to, and the court will not undertake to make presumptions about Plaintiff's intentions in accusing Defendants of such conduct. Additionally, as previously pointed out in this order, nearly one year ago, Defendants informed the court that they timely served responses to Plaintiff's discovery requests, and Plaintiff never notified the court that this contention was somehow inaccurate, despite filing dozens of other letters and motions. Plaintiff did, however, send a letter to the court a year ago, explaining his intention to “bring the attorneys of SCDC up on charges of violating the rules of professional conduct.” ECF No. 77. Within this letter, Plaintiff informs the court that he is reviewing video footage (though he contends it is altered), which suggests to the court that Plaintiff has in fact received at least some discovery from Defendants. Moreover, while Plaintiff contends that he plans on deposing Defendants, he has failed to provide this court any information or otherwise demonstrated that even if this court were to extend the discovery deadline, that he has the ability to pay the expenses associated with a deposition or otherwise make the necessary deposition arrangements.[6] For these reasons, and the reasons previously outlined in this order, Plaintiff's Motion, ECF No. 150, is denied. To be clear, the discovery deadline has ended, and all parties have had the chance to engage in discovery. For the reasons outlined above, the undersigned denies Plaintiff's Motions, ECF Nos. 139; 148; 149; and 150. The undersigned grants in part and denies in part Plaintiff's Motion, ECF No. 138. The Motion is granted only insofar as Defendant DHO Brown is instructed to provide responses or objections to the requested discovery outlined in this Motion on or before November 7, 2024, and Defendants are instructed to respond to Plaintiff's Second Request for Production, attached as Exhibit C to Defendants’ Response, on or before November 7, 2024. Because these responses are due after the deadline set for dispositive motions to be filed, the court extends the dispositive motion deadline through December 9, 2024. IT IS SO ORDERED. Footnotes [1] Plaintiff also sought discovery from previously named Defendants who have since been dismissed from this action. [2] The court is mindful of Defendants’ argument that the discovery served at that time was untimely pursuant to Local Rule 26.04; however, given the posture of this case and the fact that discovery continued pursuant to the Scheduling Order dated July 23, 2024, the undersigned now orders DHO Brown to respond to the discovery that was sent prior to the issuance of the protective order. [3] The court notes that Defendants objected to providing personal information of SCDC employees on the grounds that it violates policy and they will not produce the personal information of employees. Exhibit A to Defs.’ Response, ECF No. 155-1 at 67. The undersigned also notes that the requested information does not appear to be reasonably calculated to lead to the discovery of admissible evidence. Further, Defendants agreed to produce non-restricted policies but objected to producing SCDC policies that would be a security breach to the prison system. The undersigned finds this to be an adequate response. See Dawson v. Bush, No. 4:13-cv-2236-DCN-TER, 2014 WL 3349835, at *3 (D.S.C. July 9, 2014) (explaining that courts can limit discovery and that the burden to the security of penal institutions caused by the production of producing a restricted use of force policy outweighs the benefit to Plaintiff's receipt of it); see Nicholas v. Ozmint, No. 8:05-cv-3472-RBH, 2006 WL 2711852, at *5 (D.S.C. Sept. 20, 2006) (denying a motion to compel SCDC to produce restricted policies to inmates, including a use of force policy and a chemical munitions policy). [4] Technically, the court extended it one day, upon leave requested by Defendants to take the deposition of Plaintiff on September 24, 2024. ECF No. 137; ECF No. 141. Defendants have noted that Plaintiff refused to attend his scheduled deposition. See ECF No. 155, n. 2. [5] Interestingly, Plaintiff also continues to file variations of motions, arguing Defendants have not engaged in discovery. Therefore, the court finds it incongruous that Plaintiff argues on the one hand that he is unable to obtain discovery, and on the other hand that he has discovered new facts and theories and that discovery is still ongoing, as his reasons to allow another amendment to his Complaint. [6] A party seeking to depose a witness is responsible for arranging the deposition, including securing a location and retaining a court reporter. Derrick v. Trusdale, No. 9:20-cv-03816-MGL-MHC, 2023 WL 3714360, at *2 (D.S.C. April 28, 2023). Despite being granted in forma pauperis status, such status does not mean Plaintiff's discovery expenses are waived. Id.