LINDSAY v. GLICK et al, No. 1:2015cv00596 - Document 104 (M.D.N.C. 2016)
Court Description: MEMORANDUM OPINION AND ORDER. Signed by MAG/JUDGE JOE L. WEBSTER on 10/25/2016,Plaintiff's Motion to Enter Plaintiff's Rebuttal Evidence into Court Records (D.E. 58 ), Plaintiff's Motion for Partial Summary Judgment (D.E.[68 ]), Plaintiff's Motion for Reconsider Motion to Amend Complaint (D.E. 72 ), Plaintiff's Motion for Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes to William Glick, III (D.E. 75 ), Plaintiff's Motion to Compel Discovery (D.E. 78 ), Plaintiff's Motion for Emergency no Contact Order by Defendants Locklear and Bond (D.E. 99 ), and Defendants' Motion to Deem Response Timely Filed (D.E. 103 ) are DENIED. Plaintiff's Motio n for an Order Extending Limitations of Length of Brief to Refile Partial Summary Judgments (D.E. 81 ) is DENIED. Plaintiff will be allowed to file a supplement to his current motion for partial summary judgment (D.E. 89 ), to make any other arguments, limited to 10 pages. Plaintiff will have 21 days to file this supplement and Defendant will have 21 days to file a response. Plaintiff's Motion for Subpoena (D.E. 48 )is GRANTED in part, and DENIED in part. Defendants shall pro duce documents specified in camera inspection to Plaintiff within 14 days of this order. Plaintiff's Motion for an Order Extending Limitations of Length of Brief in Opposition to Dispositive Motions (D.E. 94 ), and Plaintiff's Motion for Court to Intervene (D.E. 97 ) are DENIED as moot. Defendants respond to Plaintiff's Memorandum of Law in Support of Motion for a TRO and Preliminary injunction (D.E. 98 ). Defendants will have 14 days to respond of this order. (Daniel, J)
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LINDSAY v. GLICK et al Doc. 104 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA THE,ODUS LINDSAYJR., Plaintiff, v WILLL{M GLICK, III, et al., Defendants. ) ) ) ) ) ) ) ) ) 1:15CV596 MEMORANDUM OPINION AND ORDER OF UNITED STATES MAGISTRATE JUDGE This matter is before the Court upon several motions: Plaintiffs Motion for Subpoena pocket Entty 48), Plaintiffls motion entitled "Motion to Enter Plaintiffs Rebuttal Evidence into Court Records" (Docket Enuy 58), PlaintifFs motion for paraal summaly judgement (Docket Entry 68), Plaintiffs motion entitled "Reconsider Motion to Amend Complaint" (Docket Entry 72), PlainttfPs motion entitled "Production of Documenrs and Things and Etttty Upon Land for Inspection and Other Purposes to William Glick, III" (Docket Entry 75), Plaintiffs Motion to Compel Discovery (Docket Entry 78), Plaintiffs motion entitled "Motion for an Order Extending Limitations of Length of Brief to Refìle Partal Summary Judgments" (Docket E.ttty 81), Plaintiffls motion entitled "Motion for an Order Extending Limitations of Length of Brief in Opposition to Dispositive Motions" pocket F;ntry 94), Plaintiffs motion entitled "Plaintiff Motion for Court to Intervene" pocket Entry 97), Plaintiffs motion entitled "Memorandum of Law in Support of Motion for a TRO and Preliminary injunction" (Docket Er,tty 98), Plaintiffs motion entitled "Plaintiffis Motion for Emergency no Contact Order by Defendants Locklear and Bond" (Docket Entry 99), and 1 Dockets.Justia.com Defendants'motion to deem response timely filed Q)ocket Entry 103). For the following reasons, the Court will grant krpart and deny in part Plaintiffls Motion for Subpoena (Docket Etttty 48). Defendants shall produce to Plaintiff the specifìc documents hereinafter specified by the Coutt, which wete among the documents reviewed for in days of this order. The Court denies as camera inspection, within 14 moot Plaintiffs motion entitled "Motion for an Order Extending Limitations of Length of Brief in Opposition to Dispositive Motions" (Docket Etttty 94), and Plaintiffs motion entitled "Plaintiff Motion for Court to Intervene." (Docket Entry 97.) The Court further orders Defendants to respond to Plaintiffs motion entitled "Memorandum of Law in Support of Motion for aTRO and Preliminary injunction" (Docket Etttty 98) within 1,4 days of this order. The Courtwill deny Plaintiffs motion entitled "Morion for an Order Extending Limitations of Length of Brief to Refìle ParialsummaryJudgments" pocket Entry 81). However, Plaintiff will be allowed to fìle a supplement to his current motion for pattal summaly judgment pocket Entry 89), to make any other arguments, limited to 10 pages. Plaintiff will have 21 days to file this supplemenr and Defendants will have 21 days to fìle a response. The Court will deny Plaintiff remaining morions. Q)ocket Entries 58, 7 2, 7 5, 7 8, 99, 103). I. Bacþround On July 22, 2015, Plaintiff, a pro se prisonet, fìled a complaint asserting that Defendants were deliberately indifferent to Plaintiffs medical needs by denying Plaintiff access to mental health treatment and protective custody. (See generalþ Compl., Docket Entry 2) Plaintiff atdved at the Albematle Conectional Institution in June 201,4. (Id. at 6.) In August 201.4, Plaintiff alleges that he requested to participate in a mental health psychological 2 rehabilitative treatment program for his Post Traumatic Stess Disorder ("PTSD") resulting from his experience in the military. Qd.) Plaintiff alleges that he was denied program and was assigned to the "Road Squad" for a access to the work assignment. Qd.) Plaintiff states that on sevetal occasions he requested to be temoved from the Road Squad assignment and to be admitted to the mental health psychological rehabilitative treatment program. (Id. at 6- 9.) On October 21,,201,4, Plaintiff states that he was assaulted on the Road Squad bus (Id. at 6.) Plaintiff alleges thataprison staff member failed to do anything about the altercation. (Id.) Subsequently, Plaintiff was assaulted again on Road Squad duty on November 13,2014. Qd. àt1,0.) As a result of this second altercation, Plaintiff was moved to restrictive housing. Subsequently, Plaintiff filed several amended complaints and supplements. Qd.) pocket Entries 25,30,32,33). In his ftst amended complaint, Plaintiff asserts claims against two additional defendants, Monica Bond, Chief Disciplinary Officer, and Victor Locklear, a Disciplinary Hearing Officer. @ocket Ent y 25.) Plaintiff asserts that both violated his Due Process rþhts. Subsequendy, Plaintiff filed a supplementandanamended complaint alleging that Defendants' violated the ¡\mericans with Disabilities Act. (Am. Compl. at2, Docket Entry 32.) Plain:j;ff also alleges that Mr. Spruill, a unit m^na,ge\ "provided assistance on Jantary 21, 2015 at fPlaintiffs disciplinary rehearing]." (Id.at 5) Plaintiff contends that Mr. Spruill told Plaintiff that his disciplinary hearing was "jacked-,rp." Qd. at 5-6.) a .) II. Discussion A. Plaintiffs Motion Entitled "Ordet for Ptoduction of Documents and Things and Entry Upon Land for Inspection and Other Purposes to \William Glick, III" Plaintiff moves the Court to "Order Production of Documents and Things and Entry Upon Land for Inspection, taken Photogtaphs and Othet Purposes" pursuant to Fedetal Rule of Civil Procedure 34. (Docket Entry 75). ,{.ccording to Rule 34, a party may serve on arür otherþarfl a "request within the scope of Rule 26þ)t . . . to produce and permit the requesting pafty ot its representative to inspect, cop!, test, or sample . . . . designated tangible things" that ate "in the responding patty's possession, custody, or control." Fed. R. Civ. P. 3a(a)(t)(,{)-@) (emphasis added). Furthermote, Rule 34"permit[s] entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property object or operation on it." or any designated Fed. R. Civ. P. 3a@)@)(Z). Rule 45 allows for a subpoena to be issued to nonparties to permit the inspection of land. Fed. R. Civ. P. (a)(C). Pursuant to Rule 26þ)Q), the Court must limit the extent or frequency of discovery upon the detetmination that: t Fed. R. civ. P 26þ) states Unless otherwise limited by court ordet, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in conttoversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. Fed. R. Civ. P 26þ). 4 (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ü) the patty seeking discovery has had ample opportunity information by discovery in the action; or to obtain the (üi) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. MacDerrzid Printing So/¡., L.L.C. u. E.L Du Pont De Nemours dz Co., No. 1:10MC37,2012WL 7341.46, at x2 (À4.D.N.C. Mar 6,2012) (citing Fed. R. Civ. P. 26þX2XC)). Hete, Plaintiff requests that the Court order Defendants to allow Plaintifls designee access to Albemade Corectional Institution for the purpose of inspecting a Road Squad bus and to photograph the following items: "Inmates'cutting andf or stabbing devices including a swing blade, bush axe, pitchfork, rake, and all other cutting or stabbing devices." (Docket Et t y 7 5 at 4.) Additionally, Plaintiff desires photographs of the Road Squad bus interior including the inmates holding compartment, correctional officers' compartment, equipmeût storage compartment, and toilet. (1/.) These items are located on the property of the North Carchna Department of Public Safety ("DPS") which is a non-party. Thus, Rule 45 applies to Plaintrffs request. The Court concludes that access to the facility is denied because the photographs Plaintiff seeks are irtelevant. "Relevant information need not be admissible at the rial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence u. ll/olf Shoe Co., No. 3:04 Cy 23231, ." Stoat x2 (D.S.C. Mar 31,,2007). JtrA,2007 WL 1034998, at Relevant evidence is any evidence "having tendency to make the existence 5 of any fact that is of consequence to the determination of the action more probable or less probable than it would be withorit the eviclence." discretion in determination I-nwcoantry Red Cros¡ 97 of kl (citing Fecl. R. Evid. 401). "The trial corlrt has broacl televance for discovery purposes." Id. (citing ll/atson u. 4 tr.2d 482 (4th Cir. 1,992). Plaintiff contends that his experience on the Road Squad which included being in a "hostile environment" around inmates with Road Squad equipment caused him "undue stress [and] triggered PTSD symptoms." (See Compl. at 6,1.4, Docket Entry 2). There is no dispute regarding whether the equipment was used while Plaintrff was on Road Squad duty or whether an altetcaion happened on the Road Squad bus. The issue is whether Defendants were deliberately indifferent to Plaintiffs medical needs by placing him on Road Squad, not whethet he was actually on the Road Squad bus and surrounded by the Road Squad equipment in the hands other inmates. Ptoduction of these photographs will not make any fact needed for determination of this action more or less probable. Thus, the information Plaintiff requests is not relevant. Furthermore, Defendants contend that: the items to which Plaintiff demands access may be in the care and control of Defendant Glick as Superintendent of the pdson, but they are located on and indeed are the property of a non-prry, [DPS], which has strict security protocols and policies for obvious feasons. (Docket Etrtty 82 at 4.) While individuals have been granted entry into ptisons by courts, the undersigned must weigh Plaintifls request against the needs of the case and the DPS's burden to adjust its "stict security protocols and policies" to comply with Plainuffs request. SeeFed. R. Civ. P. 26þ)Q)(Ð; Docket Entry 82 at 4. The Court concludes that the secutity risk in allowing a designated person access to the correction al faclhty to take photos of the equipment and Road Squad bus used to transfer inmates outweighs the minimal potential benefit to 6 Plaintiff. See Daw¡on u. Bath, No. C 4:13-2236-DCN-TER,201.4WL 3349835, at x3 (D.S.C. July 9, 201,4) ("The burden to the security of SCDC institutions that would be caused by ptoduction of [the Use of Force] policy outweighs Plaintiffs benefit in receiving it."); Manriquequ. Huchins, No. 1:09-CV-00456-OWW, 201,1, WL 32901,65, at*20 @,.D. Cal. July 27 , 201,1) ('rWhile the Court recognizes that the blue prints could be relevant and potentially admissible at ttial, the security risk that would be created by giving inmates blue prints to the prison greatly outweighs any potential benefit that Plaintiff would receive by obtaining the requested documents"); Siluerstein u. Fed. Bareaa of Prinu, No. CIV.A07CY02471PA.BKMT, 2009 \[1L 1451684, at x3 (D. Colo. May 20,2009) ("fìnd[ing] that the scant extra information which could be extracted by a personal viewing of a specific cell by the fplalintifPs] experts is far outweighed by the burden and expense on the parties and on the prison by allowing a mass site visit'). Thus, Plaintiffs motion entitled "Order Production of Documents and Things and Entry Upon Land for Inspection, taken Photographs and Other Purposes" (Docket Entry 75) is denied. B. Plaintiffs Motion Entitled "Motion to Enter Plaintiffs Rebuttal Evidence into the Court Records" Plaintiff fìled a motion entitled "Motion to Enter Plaintiffs Rebuttal Evidence into the Court Records" pocket Entry 58.) Plaintiff seeks leave to respond to Defendants' answer. Specifically, Plaintiff contends that in Defendants' answer they assert that Plaintiff has not exhausted his administtative remedies. Q)ocket Entry 58 at 2.) Plaintiff desires to tebut Defendants' contention by enteting tebuttal evidence ptoving that he has exhausted his administrative remedies. (Id. ^t 3-4.) 7 ,\ccording to Rule 7(a) only cettain pleadings are allowed. Fed. R. Civ. P.7(a). The Rule expressly states that "[i]f the court otders one, a reply to arrswer" is allowcd. Fcd. R. Civ. Pro.7(a)(7). The Court has not asked Plaintiff to file a reply to Defendants' answer. Thus, Plaintiffs motion entitled "Motion to Enter rebuttal Evidence into the Court Records" pocket Entry 58) is denied. C. Plaintiffs Motion to Compel Plaintiff has also filed a motion to compel certain individuals to adequately respond to discovery requests. (Docket E.ttty 78.) Plaintiff contends that Defendants failed to comply with document request seeking photographs of the Road Squad bus and work equipment. pocket Ettt"y 80 at 1, 1,1,-12.) As discussed eadier, the DPS's burden in maintaining the safety of the facihty outweighs Plaintiffs minimal photographs. See Dawson, 201,4 WL potential benefit from receiving 3349835, at *3; ManriqueT, 201,1 WL these 3290165, at *20; Silverstein,2009 \[1L 1451684, atx3. Plaintiff also asserts that Defendant Brafford failed to adequately respond to Plaintiffs requests for admissions. (Id. at 2.) Plaintiff asserrs that Defendant Btafford's response to Plaintiffs interogatories stating that he "'d[id] not work for NCDPS any longer' and that 'þe] d[id] not have independent recollection of any information asked"' was inadequate. (Id.) Defendant Brafford stated under penalty of pe{ury that he does not have access to the information requested and that he does not have any recollection of the circumstances that Plaintiff asked him about. pocket E.ttry 80 at 15-16,21-23.) Thus, the Cout denies Plaintiffs motion to compel. Garda a. Almieda, No. 103CV06658O\)7WSMSPC, 2007 WL 1395338, at *1 (E.D. CaI. May 10,2007) ("Plaintiffs motion to compel a response is denied. Absent evidence to the conftar!,which has not been I offered, the court and plaintiff must accept defendant's response that she does not have access to the infotmation needed to respond to this interrogatory because she is no longet employed by the California Department of Corections and Rehabilitation"); Carmichael u. Rz7ey, No. C06- 5542RJB/KLS, 2007 WL 3374942, at *6 (\1.D. \Wash. Nov. 6, 2007) (denying the plaintiffs motion to compel the defendants to adequately ansv/er interogatories because "Defendant Riley . . . stated under penalty of perjury that he does not have access to the information requested"). D. Motion to Reconsider mended Complaint Plaintiff has also fìled a motion entitled "Reconsider Motion to Amend Complaint" (Docket Etttty 72). Prevíously, Plaintiff filed two motions, the fìrst entitled Motion to Amend and Supplement Complaints (Docket Ent"y 32), which was filed on December 28, 2015, and a motion entitled "Motion to Arnend Complaints," filed onJanuary'19,201,6. pocket Entry 33). Ultimately, the ftst motion was construed as a supplement to Plaintiffs previously filed ,\mended Complaint. The second motion entided "Motion to r{mend Complaints," which was deemed moot, included a new claim under the Amedcans 504 of the Rehabilitation ,\ct. with Disabilities r{,ct and Section (Docket Entry 33 at 6.) Plaintiff requests that his Americans with Disabilities Act claim not be dismissed. Q)ocket Ent y 72 at 4-5.) The Fourth Circuit has repeatedly held that "the ADA and Rehabilitation Act generally are construed to impose the same requirements, and because the language of the Acts is substantially the same . . . the same analysis [is applied] to both." Spenceru. Earley278tr. App'* 254, 261, (4th Cit. 2008) (internal citations and quotations omitted); Clinton 1,:1,0CY123,201,4WL 4274251,, at *2 (1\4.D.N.C. Aug. 28,2014). While 9 L. a. Il/os, No. the two statutes have minor differences, in genetal, a plaintiff seeking recovery under eithet statute must allege that (1) he has a disability; (2) he is otherwise qualified to receive the benefits of a public service, program, or activity; and (3) he was excluded ftom participation in or denied the benefits of such service, program, ot activity, or otherwise discriminated against, on the basis of h[is] disability. Id. (nternal citations and quotations omitted). The Court fìnds that Plaintiffs Americans with Disabilities Act claim is frivolous. Plaintiff alleges that he has been denied medical treatment. (See generalþ Compl., Docket Ent"y 2.) However, there is no allegation that Plaintiff has been denied access to a public service, program, or activity on the basis of his alleged disability Harell u. Bishop, No. CIV.A. DKC-13-2722, 2014 WL 3055572, at x6 ("Although the Foutth Circuit cases has P. Md. July 2, 2014) not addressed this issue in a published opinion, unpublished from this circuit and published and unpublished cases from other circuits indicate that a prisoner may not state a claim under the -A.D for a lack of medical treatment."); Brown u. I{/i/son, No. 5:10-CV-181-C, 2012WL 671,9464, at x3 (}1.D. Tex. Dec27,201,2) (finding that the plaintiff failed to state a claim fot relief undet fthe Á,mericans with Disabilities Act or the Rehabilitation Act] because he has not "alleged or shown that he was advetsely tteated solely because of his handicap"). Therefore, Plaintiffs motion entitled "Reconsider Motion to Amend Complaint" is denied. E. Plaintiffs Motion Entitled "Motion for Court to Intervene" Plaintiff filed a motion entitled "Motion fot Court to Intervene." Q)ocket Entry 97.) Plaintiff requests the Court to order the Bertie Correctional Institution to forward Plaintiffs entire legal fìle to him and to "stay matters pending in this court until 6 Septembet 201.6, and any othet relief deemed necessarry." pocket E.try 97 at3.) Plaintiff was involved in another altercation with an inmate on August 5,201,6. (Docket Entry 97 at1,.) This resulted in Plaintiff 10 being held in testrictive housing. (Id. at2.) Plainttff expected to be in restrictive housing until September 6,201.6. (Id.) It appears that this motion is now moot because Plaintiff should have been teleased from testrictive housing over a month ago. Thus, Plaintiffs motion is denied as moot. F'. Plaintiffs Motions to Extend Limitation of Page Length and Plaintiffs Partial SummaryJudgment Brief Plaintiff filed a motion for panalsumm{y judgment on April 28,2016. @ocket Er,try 68.) This pattial summary judgment motion was one of three patttal summaÐ/ judgment motions fìled by Plaintiff in the span of one month. pocket Entdes 54,60,68.) Subsequently, the Coutt encouraged Plaintiff to file one partial summaÐ/ judgment brief encompassing all of Plaintiffs arguments. pocket Etttry 76.) In response, Plaintiff filed a motion fot an extension of the numbet of pages thatcan be filed for his summary judgment brief. (Docket Entry 81.) Before the Coutt addressed Plaintiffs request for anextension of the numbet of pages that can be filed for his partial summary judgment brief, Plaintiff complied with the Court's request by filing a single paraal summaly judgment motion which Plaintiff named "Plaintiffs Refiled Motion forParttal SummaryJudgment p.E. 54,60,68)." (Docket Entry 89.) Because this paria,I summaq/ judgment motion combines Plaintiffs pervious three summary judgment motions (Docket Entries 54, 60,68), PlaintifPs April 28,201,6, summary judgment motion pocket Entry 68) is denied. Concerning Plaintiffs motion entitled "Motion for an Otder Extending Limitations of Length of Brief to Refile Partial Summary Judgments" (Docket E.rtty 81), the Court notes that Plaintiff requests that the page limit for his summary judgment bdef (Docket Entry 89) 1,1 be extended to 75 pages. (Docket Entry 81 at 4.) Since Plaintiff has already fìled a new partial summaly judgment motion the Court will deny Plaintiffs request. However, the Court will allow Plaintiff to file an additional 10 pages to supplement his current pafital summary judgment brief. Q)ocket Entry 89.) Plaintif|s last motion requests that the page length for his response to Defendants' dispositive motions be extended to 20 pages. @ocket Er,try 94 at 2.) The United States District Court for the Middle Disttict of Noth Carolina Local Rules stte that "þ]riefs in support of motions and responsive briefs are limited in length to 20 pages, and reply briefs are limited to 10 pages." L.R. 7.3(d). Therefote, the Local Rules allow responses to dispositive motions to be 20 pages long which the Court concludes is sufficient for Plaintiffs response brief. Id. Thus, Plaintiffls motion entitled "Motion for an Order Extending Limitations of Length of Bdef in Opposition to Dispositive Motions" (Docket Entry 94), is denied as mool G. Plaintiffls Motion for Subpoena Additionally, Plaintiff fìled a motion requesting that the Court order Defendants to produce several documents.2 The Coutt ultimately detetmined that Plaintiffs discovery request was overboard and unduly burdensome. (Docket Entry 83 2 at2.) However, the Court Plaintiff requests that the court order Defendants to produce: medical tecotds, prisons policies, logs, schedules, corespondence, memoranda, emails, reports, summaties of meetings or conferences, summaries of hearing or repotts of investigations ot negotiations, opinions or reports of consultants, photographs, pamphlets, drafts, letters, any marginal comments appearing on any document, and all other writings ot tangible things in the possession, custody or control of John Herring, and North Carohna Department of Public Safety, Division of Prisons, until date of trial to litigate Plaintiff['s] case. (Docket E.ttty 48 at2.) 12 ordered defendants to produce for in îamera inspection prison policies related to inmates being assigned to the Road Squad, the teatment of inmates with mental impaitments, the use of pepper spray on inmates, and assigning inmates to restrictive housing as a disciplinaÐ/ measure. pocket Entry 83.) Plaintiff is prohibited from obtaining documents protected by attorney-client privilege3 ot the considered work product.a Plaintiff is also prohibited from obtaining documents that threaten the safety of the prison.s The Court has teviewed all of the documents submitted by Defendants. The Court finds that the following documents are not ptivileged, nor do they pose a threat to the safety of the prison: 1,. Email chain from Cordelia McBride to Tanya Turner (8.S. 0588-89) 3 The attorney-client privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and þ) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attotney was infotmed (a) by his client þ) without the presence of strangers (c) fot the purpose of securing primarily either (i) an opinion on law or (ü) legal services or (Ð assistance in some legal proceeding, and not (d) fot the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and þ) not waived by the client. Moore u. DAN Holdings,Inc.,No. 1:12CV503,201.3 a !7L 1833557,at*3 (I\4.D.N.C. Apr.30,201,3) "The work product doctrine applies to material 'prepared because of the prospect of litigation when the prepater faces an actual claim or a potential claim following an actual event or series of events that reasonably could result in litigation ."' M00re, 2013 WL 1,833557 , at x3 (citing Nørionøl Union þ-ire Ins. Co. u. Marø1 Sheet Meral Co., lnc.,967 F.2d 980, 984 (4th Cir. 1992)) (emphasis in origrnal). "The butden rests on the party tesisting discovery to demonstate the applicability of either the attorneyclient privilege or the work ptoduct docffine." Id. Q.ittng Solis u. f-ood Enp'rs l-abor Relalions A:s'n, 644 F.3d 221,, 232 (4th Ctt. 201,1). No. 3: 11,-CV-21,94,2073WL 5202489, at+3 (IVI.D. Pa. Sept. 1,3,201,3) (declining to authorize wholesale disclosure of ptison manuals because doing so "may gtavely impair institutional security"); Ibaneqa. Mi//er, No. CIVS-O6-2668JAM EF'BP, 2009 'üøL 3481,679, at *3 (E,.D. Czl. Oct.22, 2009) (finding that a prison's operating ptocedures document "contains critical prison security information that, if disclosed, could endanger prison staff and compromis e tacttcal responses to ptison alarms"). 5 Robinson u. ll/etryl, 1,3 2 Email chain from Donna Byrd and Cordelia McBride (8.S. 0577). J Email chain from Donna Barringet to Cotdelia McBtide @.S, 05ó5-66) 4. Email chain from Cordelia McBride to Tanya Turner (8.S. 0581-82). 5. Email chain from Ebony Ratliff to Cotdelia McBride @.S. 0673-75). 6. Email chain from Cordelia McBride to Donna Baringer (8.S. 0644-47) 7. Email chain from Cordelia McBride toJeanette Robinson (8.S. 0618-19). 8. Email chain from Ebony Ratliff to McBride Cordelia 9. @.S. 0552-54). Email chain ftom Michael Thompson to Cotdelia McBdde (8.S. 0532-33). 10. Email chain ftom Cordelia McBride to William Glick (8.S. 0523-25) 11. Email chain from Michael Thompson to Cordelia McBride (8.S. 0514-16). 12.Emall chain from William Glick to Lawrence Parsons (8.S. 0469). 13. Email chain from Michael Thompson to Cordelia McBride (8.S. 0509-10) 1.4.F,mail chain ftom Bill Brandhorst to l7illiam Glick @.S. 0470-71) 15. Inmate Request/Information Form (B.S 0660-62). These documents shall be produced by Defendants within 14 days of this order. H. Plaintiffs Motion fot Tempotary Restraining Ordet and Pteliminary Injunction Additionally, Plaintiff filed a motion entitled "MemoÍandum of Law in Support of Motion for a TRO and Pteliminary injunction." pocket Entry 98.) Plaintiff contends that he is presently being denied apptoptiate medical care. (Id.) Plaintiff seeks a temporaq/ restraining otder and a preliminary injunction to ensure that he teceives proper medical care. (Docket E.rtry 98 at 1,.) The Coutt orders Defendants 1,4 to tespond to PlaintifPs motion within I. 1,4 days. Plaintiffs Motion entitled "Plaintiffls Motion fot Emergency no Contact Ordet by Defendants Lockleat and Bond" '{,dditionally, Plaintiff fìled a motion entitled "PlaintifPs Motion for Emergency no Contact Order by Defendants Locklear and Bond" (Docket Entty 99). Plaintiff was allegedly involved in another altercation with an inmate. pocket Entry 100 at 6.) As a result Plaintiff was subject to a disciplinary hearing. Qd.) Mr. Locklear is the disciplinary hearing officer and Ms. Bond reviews disciplinary hearing appeals. (Docket Entry 101 at Plaintiff "objects to defendant Locklea4 and Bond, hearing disciplinary charge þecause] þ]oth defendants [are] named lawsuit." (Docket Entry ot 2.) In this motion teviewing his cuffent in plaintifff's] pending civil 100). The Court finds that Plaintiff has failed to come forward with any evidence indicating that Mr. Locklear ot Ms. Bond violated Plaintiffs constitutional rþhts. Plaintiffs assertion that Mr. Locklear and Ms. Bond will adjudicate and review his disciplinary hearing is insufficient to show bias. Defendants "disposition of the charges against Plaintiff does not in and of itself constitute personal participation in an alleged violation of an inmate's right to due process. Otherwise, every disciplinary hearing officer and reviewing authority would be potential defendant when an inmate was convicted L.eatherøood, No. CIV-10-769-M, 2011 andreconmendation adopted,No. ffl. of a misconduct charge." Barnelt a u. 4588911, at*'1.4 (\X/.D. Okla. Aug. 10, 2011), report CIV-10-769-M,2011WL4578450 CX/.D. Okla. Sept.30, 201,1), (tÍ[d,557 F. App'x 739 (1,0th Cu. 201,4); Brown u. kior,196 F. App'" 681,684 (10th Cir. 2006) ("standing alone, the allegation that the DHO was biased solely as a result of his being named 15 a defendant in a civil suit by the plaintiff does not rise to a due process violation."). "Ftom a practical standpoint, requiring each staff member who is the subject of a separate lawsuit to disqualify himself from sitting in judgment capacity of the prison staff." Burnett,201,1, of that inmate would heavily tax the working WL 4588911,, atx1,4. Plaintiff insist that Mr. Locklear rctahated against Plaintiff because his "case fwas sent] back for reinvestigation." (Docket Entry 101 at 5.) a parttal Plaintiffls assertion is almost speculative. A reinvestigation of PlaintifPs case is not evidence of retaliation. To the conftat!, this indicates that the prison staff is attempting to reach the correct outcome. Thus, Plaintiffs motion entitled "Plaintiffls Motion for Emergency no Contact Order by Defendants Locklear and Bond" (Docket Entty 99) is denied. J. Motion to Deem Response Timely Filed Lasdy, Defendants fìled a motion to deem their response to a motion filed by Plaintiff (Docket Entty 99) timely. Q)ocket Entry 103:) As explained above, in Plaintiffs motion entitled "Plaintiffls Motion for Emergency no Contact Ordet by Defendants Lockl ear and Bond" (Docket E.ttry 99), Plaintiff "objects to defendant Locklear, and Bond, hearing or reviewing his curent disciplinary charge þecause] þ]oth defendants [are] named in plaintiff['s] pending civil lawsuit." (Docket Ent"y 100). As explained above the Cout denies PlaintifPs motion because it is meritless. Thus, there is no need to consider Defendants' untimely response. Defendants' motion is denied. III. Conclusion For the reasons stated herein, IT IS THEREFORE ORDERED that Plaintiffs motion entitled "Motion to Enter Plaintiffls Rebuttal Evidence into Court Recotds" (Docket t6 Entty 58), Plaintifls motion for partial summary judgement Q)ocket E.rtty 68), Plaintiffs motion entitled "Reconsider Motion to ,\mend Complaint" (Docket E.ttty 72), Plaintiffs motion entitled "Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes to William Glick, III" pocket Entry 75), PlaintifPs Motion to Compel Discovery Q)ocket Entry 78), Plaintiffs motion entitled "Plaintiffs Motion for Emetgency no Contact Order by Defendants Locklear and Bond" (Docket E.rt"y 99), and Defendants' motion to deem response timely filed Q)ocket Entry IT IS FURTHER ORDERED 1,03) arc DENIED. that Plaintiffls motion entitled "Motion for an Order Extending Limitations of Length of Brief to Refile Partial Summary Judgments" (Docket Ent y 81) is DENIED. However, Plaintiff will be allowed to fìle a supplement, to his current motion for parttal summary judgment (Dock Entry 89), to make any othet arguments, limited to 10 pages. Plaintiff will have 21, days to file this supplement and Defendant will have 21' days to file a response. IT IS FURTHER ORDERED 48) is that Plaintiffs Motion for Subpoena (Docket Entry GRANTED in part, and DENIED in patt. Defendants shall ptoduce the documents specified above which were among the documents reviewed for in camerainspection to Plaintiff within 14 days of this otder. IT IS FURTHER ORDERED that Plaintiffs motion entitled "Motion for an Order Extending Limitations of Length of Brief in Opposition to Dispositive Motions" (Docket E.rtty 94), Entry 97) and are Plaintiffs motion entitled "Plaintiff Motion for Court to Intervene" (Docket DENIED as moot. IT IS FURTHER ORDERED that Defendants respond to Plaintiffs motion 17 entitled "Memorandum of Law in Suppott of Motion for a TRO and Preliminary injunction." pocket Etrtty 98.) Defendants will have 14 days to respond of this order L Srmr trf4gistnt*Judp October 25,201,6 Durham, North Carcltna 18
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