FRANK D. WHITNEY, Chief District Judge.
Pro se Plaintiff Joshua Lee Blackwell, a pre-trial detainee incarcerated at the Lincoln County Detention Center, in Lincolnton, North Carolina, originally filed this action on April 22, 2016, pursuant to 42 U.S.C. § 1983. In the First Amended Complaint (Doc. No. 35), filed on September 16, 2016, Plaintiff generally alleges that he received constitutionally inadequate medical care during his most recent confinement in the Lincoln County Detention Center, which began in December 2015. Defendant Lt. Alan Houser is the Jail Administrator for the Lincoln County Sheriff's Office. Defendant Judy Humphries, the jail's nurse, and Defendant John Piland, the jail's doctor, are not employed by the Sheriff or Lincoln County. Pursuant to this Court's original scheduling order entered on August 8, 2016, the discovery completion deadline was December 6, 2016. (Doc. No. 26). On January 5, 2017, the Court granted Defendants' motion for extension of time to file dispositive motions. (Doc. No. 92). Dispositive motions are now due by February 4, 2017. Plaintiff has filed numerous motions related to discovery that are now pending. Furthermore, Defendants have filed a motion to dismiss based on Plaintiff's refusal to sit for his deposition at the jail. The Court will address the parties' motions in turn.
The Court first considers Defendants' motion to dismiss based on Plaintiff's refusal to allow his deposition to be taken. Defendants' brief in support of the motion shows that on November 16, 2016, Plaintiff was served by mail with a Notice of Deposition, scheduling his deposition at the jail for 9 a.m. on November 29.
In response, defense counsel asked Detention Officer Charlie Greene to go back to Plaintiff's cell with a message: The Notice of Deposition he had received was sufficient to require his attendance; three attorneys had made the trip and were ready to proceed; and that if he continued to refuse, the Defendants would file a motion to dismiss his lawsuit. (
FED. R. CIV. P. 37(d) allows the district court to dismiss an action if a party "fails, after being served with proper notice, to appear for that person's deposition." Here, Plaintiff was served by mail with "proper notice" some 13 days before the scheduled date. That alone was sufficient to require he present himself for deposition.
Fed. R. Civ. P. 37(a) authorizes the filing of a motion to compel where a party has failed to satisfy their discovery obligations. Where the motion is granted, subsection (a)(5)(A) requires the Court to award the moving parties "reasonable expenses incurred in making the motion, including attorney's fees," unless "(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust." Here, Plaintiff's refusal was not substantially justified, and Plaintiff's indigent pro se status is insufficient to "make an award of expenses unjust."
The Court next considers Plaintiff's Motion for Depositions, filed on October 27, 2016, in which Plaintiff requests to take the depositions of the following persons: Defendant Houser, Defendant Humphries, Defendant Piland, Plaintiff's mother June Blackwell, Plaintiff's sister Ruby Boggess, and "Officer Stephens," who is identified as an officer at the Lincoln County Detention Center. Plaintiff also states that he "comes to the court requesting to proceed with these depositions as indigent." (Doc. No. 54 at 1-2). Thus, he either seeks for the Court or Defendants to pay for the costs of the proposed depositions.
Civil litigants, including pro se litigants, generally bear their own deposition costs.
The Court next considers Plaintiff's Motion to Compel Discovery, filed on December 2, 2016, in which Plaintiff seeks an order from the Court requiring Defendants Houser, Humphries, and Piland to answer the Interrogatories and Requests for Production of Documents that Plaintiff has provided to each Defendant. The Court denies the motion for the reasons stated in Defendants' opposition brief, in which Defendants assert that the motion is moot because Defendants have since responded to the discovery requests from Plaintiff.
The Court next considers Plaintiff's Motion for Extension of Time to Respond to Discovery, filed on December 8, 2016. In his motion, Plaintiff explains that he refused to sit for his deposition scheduled for November 29, 2016, because Defendants had not yet complied with Plaintiff's discovery requests. Plaintiff seeks "an extension of time to respond to discovery since the Defendants' attorneys [have] failed to comply with discovery." (Doc. No. 67 at 2). Plaintiff's motion is denied as moot since the Court is requiring, through this Order, Plaintiff to sit for his deposition at a time to be determined.
The Court next considers Plaintiff's Motion to Present Facts and Injunction Relief, filed on December 8, 2016. In his motion, Plaintiff does not appear to seek any specific action by the Court. Rather, he asks the Court to "take in consideration that all Defendants attorneys' have failed to comply with any of the discovery." The motion will be denied to the extent that Defendants have shown that they have now responded to Plaintiff's discovery requests.
F. Plaintiff's Motion to Subpoena Information, Documents, Audio/Video, (Doc. No. 65)
The Court next considers Plaintiff's Motion to Subpoena Information, Documents, Audio/Video, filed on December 9, 2016. In his motion, Plaintiff seeks discovery through the issuance of subpoenas by this Court of various documents and things, including "all grievances and request of medical facility employees legal mail, and misc."; "Securus Technologies video visitation of Lincoln County Detention Center for the video and audio of all of Plaintiff Joshua Lee Blackwell's visitations from December 6, 2015, to present time"; "all rules, regulations and policies of the Lincoln County Detention Center"; "written statements from the surgeon Dr. Fredrick Hargrove at Graystone Eye in Hickory, North Carolina"; "all video footage and audio of the encounter with Lt. Alan Houser from start to finish" from December 21, 2015 at 4:00 p.m. to 4:30 p.m.; and "all documents also pertaining to the supposed investigation of that day,": "video and audio footage of Plaintiff [] while he was placed in the rubber room at Lincoln County Detention Center" on September 6, 2016, at 9:00 p.m. until September 7, 2016; "video and audio footage of Plaintiff [] and Sgt. R. Jones in the C-Block Dayroom" on November 15, 2016 at 9:40 p.m.; "all copies of instruction on how to use the copier, the functions, the manual guide to the copying machine, and the brand, model, and year of the copying machine" in the intake area of the Lincoln County Detention Center"; and "video and audio of my legal work being searched on my return back to Lincoln County Detention Center from Central Prison by Lt. Alan Houser" in June 2016.
Plaintiff's motion for the issuance of subpoenas by the Court is denied because it was filed after the deadline for discovery.
The Court next considers Plaintiff's Motion for an Order to Compel Discovery, filed on December 16, 2016, and signed by Plaintiff on December 8, 2016. In the motion, Plaintiff seeks an order from the Court compelling Defendant to fully respond to Plaintiff's Interrogatories and Requests for Production of Documents. Plaintiff's motion to compel involves the same discovery requests underlying Plaintiff's first motion to compel, filed on December 2, 2016. Defendants explain in their opposing brief that Plaintiff has now received Defendants' discovery requests and that Plaintiff now seeks an order compelling Defendants to more fully answer five interrogatories, and to respond to requests that Defendants objected to as untimely. The motion also asks for deposition discovery.
Plaintiff's motion is denied for several reasons. First, the motion was signed on December 8, 2016, two days after the period for discovery had already ended. Next, Defendants have shown that they appropriately responded to Plaintiff's discovery requests and that Defendants' objections to various objections were proper. Finally, as to Plaintiff's request for discovery in the form of depositions, the Court has already denied Plaintiff's motion for depositions.
For the reasons stated herein, Defendants' motion to dismiss will be denied to the extent that the Court will not dismiss this action at this time based on Plaintiff's failure to allow his deposition to be taken. However, the Court grants Defendants' alternative motion to compel in that Plaintiff must submit to a deposition, at a time and place to be determined by Defendants. If Plaintiff again refuses to allow Defendants to take his deposition, this matter will be dismissed without further notice to Plaintiff. Plaintiff's pending motions related to his discovery requests are all denied, and this Court will entertain no further motions by Plaintiff regarding discovery, as the deadline for discovery has passed.