ROBERT J. CONRAD, Jr., District Judge.
In this matter, filed pursuant to 42 U.S.C. § 1983, Plaintiff alleges that while he was a pre-trial detainee at the Cleveland County Detention Center, detention officer Defendant Rudolf Rodriguez assaulted him. Specifically, Plaintiff alleges that on May 12, 2010, Rodriguez choked Plaintiff and punched him in the face while Plaintiff's hands and legs were restrained. Plaintiff alleges that former Internal Affairs investigator Defendant Darwin Briscoe refused to give Plaintiff access to reports investigating the incident. Plaintiff further alleges that Defendant Alan Norman, the Cleveland County Sheriff at all relevant times, refused Plaintiff's request to remove Defendant Rodriguez from his current position and to reinvestigate the case. Plaintiff has asserted the following claims for relief: (1) an excessive force claim against Defendant Rodriguez; (2) a claim against Sheriff Norman for his failure to fire Rodriguez or to reinvestigate Plaintiff's allegations against Rodriguez; and (3) a claim against Defendant Briscoe for his failing to provide Plaintiff with Internal Affairs records. Defendants filed a motion for summary judgment on all of Plaintiff's claims on May 6, 2013. On July 3, 2013, In accordance with
The Court first addresses the following three motions brought by Plaintiff: (1) Motion for Defendant Darwin Briscoe to Produce Documents, (Doc. No. 12); (2) Motion for the Court to Review Service of Process, (Doc. No. 16); and (3) Motion for Production of Documents from Darwin Briscoe, (Doc. No. 22). As to these three motions filed by Plaintiff, Plaintiff states in these motions that he seeks an order from the Court requiring Defendant Briscoe to prove that Defendant Briscoe was working for Internal Affairs at the time of the investigation into the alleged assault by Defendant Rodriguez.
In response to Plaintiff's motions, Defendants state that they are seeking a stay of discovery until after the Court has ruled on the issue of qualified immunity that Defendants raise in their summary judgment motion. The defense of qualified immunity is "an entitlement not to stand trial or face the other burdens of litigation."
Next, in a "Motion to Move for Production of Documents," filed on April 5, 2013 (Doc. No. 23), Plaintiff states that he would like for the Court to consider certain attachments to the motion in assessing Plaintiff's excessive force claim. Plaintiff essentially states that he wants an Order from the Court entering these attachments as exhibits. Additionally, Plaintiff states that he wants an Order from the Court requiring Defendants to submit their policy on the use of force an officer may apply on an inmate. Plaintiff further states that he "moves court to produce any and all certifications of training the defendant may [have] had as well as officers mentioned in supporting documents, since Plaintiff was in defendants' custody." (Doc. No. 23 at 1).
The Court will deny the motion. First, to the extent that Plaintiff is asking the Court to enter as "exhibits" certain documents that Plaintiff has attached to this motion, the Court need not enter an Order attaching these documents as exhibits. Rather, the Court will simply consider the attached documents as part of Plaintiff's exhibits in opposing Defendants' summary judgment motion. These attached documents include incident reports dated May 12, 2010, filled out by various detention officers and officials at the jail.
Next, as for Plaintiff's Second Motion to Appoint Counsel, the Court will deny the motion for the same reasons that the Court denied Plaintiff's first motion to appoint counsel. The Court will re-evaluate the motion and will consider appointing counsel to Plaintiff, however, if Plaintiff is able to withstand Defendants' summary judgment motion, and if this matter goes to trial.
Next, in support of his Motion for Sanctions against Defendants for Failure to Comply with Court Order, Plaintiff contends that Defendants have failed to comply with Plaintiff's request for depositions as ordered in this Court's pre-trial conference and scheduling order. Plaintiff contends that he requested depositions from Defendants Darwin Briscoe, Alan Norman, and Rudolf Rodriguez on two separate dates—June 13, 2013, and June 26, 2013. Plaintiff states that without these materials he cannot provide adequate defense against Defendants' summary judgment motion. Plaintiff seeks dismissal of Defendants' summary judgment motion as a sanction. Plaintiff further states that, alternatively, he would like for Defendants to produce voluntarily to the Court all reports and surveillance videos surrounding the incident, including incident reports made by staff, e-mail correspondences between the former sheriff and investigating officers, and Defendants' criminal background histories.
Plaintiff's motion for sanctions will be denied. First, the Court notes that Plaintiff has not filed a motion to compel Defendants to submit to depositions in accordance with Rule 37 of the Federal Rules of Civil Procedure before bringing the pending motion for sanctions.
Next, Defendants Briscoe, Norman, and Rodriguez have filed a motion to strike Plaintiff's "Second Response to Defendant[s'] Motion for Summary Judgment," filed on June 13, 2013. Defendants state that Plaintiff's second response is in fact a Surreply, and Plaintiff did not first seek leave from the Court to file such document. Defendants note correctly that neither the Federal Rules of Civil Procedure nor the Local Rules of this district authorize the filing of a Surreply. The Court will deny the motion as unnecessary, however, given that Defendants admit in their motion that Plaintiff simply reiterates arguments he previously made in his first response brief.