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Cooper v. Bower

United States District Court, W.D. Kentucky, Paducah

March 22, 2018


          Michael Cooper, pro se Plaintiff



         This matter comes before the Court upon multiple motions by Plaintiff Michael Cooper. First, he has filed a motion styled as a motion for subpoenas. [DN 176.] Second, Plaintiff has filed a motion to compel and to reconsider. [DN 190.] Third, he has filed a second motion to compel. [DN 204.] Fourth, he has filed a third motion to compel. [DN 205.] Fifth, he has filed a motion styled as a “Motion for Clothing for Trial.” [DN 209.] Sixth, he has filed a Motion for Documents. [DN 212.] Finally, he has filed a “motion to produce documents for trial and produce documents already requested.” [DN 215.] These matters are ripe for adjudication, and their merits are discussed below.

         I. Factual Background

         The following factual background summary is taken from this Court's previous Memorandum Opinion and Order in this matter. [DN 198]:

         Plaintiff is an inmate currently incarcerated at the Kentucky State Penitentiary (“KSP”). From December 2015 to September 2016, Plaintiff filed a Complaint and three Amended Complaints. [DNs 1, 10, 12, 52.] In his initial Complaint, filed December 18, 2015, Plaintiff initiated a pro se 42 U.S.C. § 1983 prisoner civil rights action. [DN 1.] Throughout his additional filings, Plaintiff has alleged that various Defendants[1] violated his right to bodily privacy, contravening the Fourth Amendment; that Defendants engaged in retaliatory conduct in violation of the First Amendment in response to Plaintiff's alleged protected activities; that Defendants utilized excessive force against Plaintiff and subjected him to cruel and unusual punishment, thereby violating his Eighth Amendment rights; that Defendants unlawfully interfered with Plaintiff's legal mail at KSP; and that certain money Plaintiff had in his personal prison account was unlawfully converted by Defendants. Some of Plaintiff's claims were dismissed upon Defendant's motion for summary judgment. [DN 174.] Plaintiff has filed numerous motions in this case, and the Court's disposition on those motions is laid out below.

         II. Motion for Subpoenas

         The first motion at issue is Plaintiff's motion for subpoenas. [DN 176.] Plaintiff requests that the following persons or things be present and/or available at the trial in this matter: (1) Garfield Evans, an individual currently incarcerated at Luther Luckett Correctional Complex; (2) Brandon Bruin, an individual currently incarcerated at KSP; (3) Danny Heggen, an employee at KSP and a Defendant in this action; (4) Shay Carlson, an individual who Plaintiff claims was previously employed at KSP but who now works at Blackburn Correctional Complex; (5) James Beavers, an employee at KSP; (6) Michael Spindler, an employee at KSP; (7) “[a]ll documents plaintiff has [f]iled to the court[] and [e]xhibits;” (8) Allen Franklin, an individual currently incarcerated at KSP; and (9) certain security camera footage taken of Plaintiff and Evans. [See Id. at 1-3.] The Court held a telephonic status conference in this matter on February 22, 2018, wherein many of these matters were discussed and decided. [See DN 200.] Consequently, much of this motion has been rendered moot.

         First, the Court ruled that Defendants are to make available to Plaintiff the aforementioned security camera footage, which Plaintiff previously viewed on August 15, 2017. [See DNs 159-1 and 200.] Importantly though, this Court ruled that, consistent with KSP policies, Plaintiff is not entitled to view any of the footage that is pornographic in nature.[2] [DN 200.] Second, the Court ruled that Plaintiff's request for “[a]ll documents plaintiff has [f]iled to the court[] and [e]xhibits” was vague and overbroad and, as such, could not be granted. However, the Court instructed Plaintiff to make a filing with the Court, should he wish to do so, indicating specifically any documents he wishes to be made available for him at trial. [See DN 200.] Indeed, in two later motions, analyzed in this Opinion below, Plaintiff has done just that. Thus, these first two requests have been rendered moot by the Court's previous order and are hereby dismissed as such. [Id.] Third, with respect to Franklin, Plaintiff indicated to the Court that he no longer wishes to have Franklin present at trial to testify, and so the instant motion is also moot on this point.

         Fourth, after discussing with Plaintiff the potential witnesses Bruin, Beavers, and Spindler, the Court concluded that none of these men possess personal knowledge of any of the facts or claims at issue in this case and, consequently, cannot be subpoenaed to testify at the trial in this matter. See Fed.R.Evid. 602 (explaining that “[a] witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”). Thus, Plaintiff's motion is hereby expressly denied with respect to Bruin, Beavers, and Spindler.

         Fifth, the Court held that Carlson could be subpoenaed to testify at the trial in this matter, and ordered a blank subpoena form to be sent to Plaintiff so that he could subpoena Carlson to testify, should he choose to do so. Plaintiff was also advised that he was required to tender the appropriate fees inherent in subpoenaing a non-party witness to testify. See Johnson v. Hubbard, 698 F.2d 286, 289-90 (6th Cir. 1983), abrogated on other grounds by L & W Supply Corp. v. Acquity, 475 F.3d 737 (6th Cir. 2007). Therefore, Plaintiff's motion is granted on this count. Sixth, the Court noted that the witness fees could be waived with respect to Evans, as he is currently incarcerated, and the Court indicated that it would issue an order and writ of habeus corpus ad testificandum as to Evans. Therefore, Plaintiff's motion is granted on this count. Finally, Heggen is a Defendant in this case and so will be present at trial. Consequently, there is no need for Plaintiff to subpoena him to testify. He may cross-examine Heggen at trial should he wish to do so. The motion is moot on this point.

         III. Motion to Compel

         The second motion at issue is Plaintiff's motion to compel. [DN 190.] In this motion, Plaintiff asks that he be permitted, along with Bruin and Evans, to come to the Court in person, along with various unspecified documents and grievances, in order to argue his case. The Court has already denied Plaintiff's request for similar relief, which this Court framed at that time as a motion to reconsider. [See DN 198, at 7-8 (discussing Plaintiff's request to escorted, with witnesses and documents, to the Court to argue his case).]

         In essence, Plaintiff's motions for summary judgment and default judgment were both denied by this Court on September 18 and October 11, 2017. [See DNs 171, 172, respectively.] And in his motion styled as a “motion to counter strike, ” Plaintiff asked to be brought to the Court to argue those motions again, along with unspecified documents and witnesses. [DN 194.] The Court denied that motion, framing it as a motion to reconsider. [DN 198.] Now again, Plaintiff asks to be brought before the Court with documents and witnesses (this time identifying the witnesses as Bruin and Evans) to argue his case. It is unclear exactly which issue, motion, or claim Plaintiff wishes to argue before the Court this time, but in any case it is clear that the motion must be denied.

         First, if the instant motion pertains to rehashing the arguments already denied on the merits, [DN 171, 172], and upon reconsideration, [DN 198], then the Court will not address it again, as the motion is not properly before the Court as a procedural matter. Second, in the instant motion Plaintiff claims that he “was assaulted by another staff member [on] July 13th, ” presumably of 2017, and so if this motion is an attempt to be brought before the Court to discuss that matter, the Court must still deny the motion. The July 13, 2017 date was raised by Plaintiff before in a separate motion to reconsider. [See Pl. Motion to Reconsider, DN 189, and this Court's denial of that Motion, DN 198.] At that time, Plaintiff claimed that on July 13, 2017, he had been assaulted by unnamed KSP officials. [DN 189, at 2-3.] The Court instructed Plaintiff that while it took such allegations very seriously, “the proper course of action is laid out in KSP's inmate handbook…If, after having exhausted his administrative remedies with respect to any such assault, the issue has not been remedied to Plaintiff's satisfaction, he may seek redress within the court system.” [DN 198, at 13.] The Court went on to note that “this case has nothing to do with an alleged assault occurring in 2017, and the time has passed for Plaintiff to amend his Complaint for a fourth time, ” and so “this case is an inappropriate forum in which to litigate such an issue.” [Id.] Thus, to the extent Plaintiff wishes to litigate matters that are irrelevant to this case, the Court must deny the motion.

         Third, Plaintiff also makes statements in the instant Motion indicating that part of his motive for requesting to be brought before the Court is to “present the grievances that are already in the record, in docket no. 35, ” and that “once I [Plaintiff] show my exhibits you will grant my motion for summary judgment & default judgment. Everything is documented in the record.” [DN 190, at 2.] The Court has already reviewed the grievances in the record, and if Plaintiff wishes to discuss them further, i.e., in the trial of this matter, he should identify any such grievances in an exhibit list filed in accordance with this Court's pretrial orders. Also, the Court already denied his motion for summary judgment and default judgment, as well as motions to reconsider those decisions. Accordingly, the Court must also deny his motion insofar as it has attempted to accomplish this as well.

         IV. Motion to be Transported to the Courthouse

         The next motion at issue is one Plaintiff has styled as follows: “Plaintiff Request[s] a[n] order granting himself and witness Garfield Evans to be brought to the courthouse in Paducah.” [DN 204.] Therein, Plaintiff asks, again, for an order from this Court directing prison officials to bring him, along with an individual he plans to call as a witness at trial, Garfield Evans, to the courthouse “to pull certain documents from the docket. Also[, ] witness Evans has documents in his posses[sion] that plaintiff cannot attain any other way due to the ongoing violation here at KSP with the mail room.” [Id. at 1.]

         As an initial matter, the Court makes specific note of the fact that it has denied previous requests by Plaintiff for such an order directing that he be brought to the courthouse numerous times now, including earlier in this same Opinion. It will not now change course and issue such an extraordinary order. Plaintiff will be brought to the courthouse on the morning the trial is to commence, and not before. To be sure though, the exact relief Plaintiff seeks in the instant motion varies slightly from that of other similar motions. Specifically, Plaintiff wishes to identify and review certain documents from this case's docket, and also be permitted access to unidentified documents allegedly in the possession of Evans, who is currently incarcerated at a different institution than Plaintiff. Plaintiff is hereby advised that there is no physical docket wherein hard copies of all filings are kept. The docket is itself electronic and accessed via the internet.

         The Court assumes that Plaintiff's desire to review certain documents from the docket is borne out of his previous request that all documents and filings from the docket be made available to him in advance of trial. Relatedly, this Court issued an Order on February 23, 2018 wherein it instructed Plaintiff that, should he wish to have any docket filings made available to him at trial, he should specifically identify them so that the Court may provide such documents to him on April 3, 2018 before trial commences. In the instant motion, Plaintiff has not identified any specific documents, and so the Court will deny this motion in its entirety. He does, however, list specific documents in two separate motions, analyzed by the Court below. Also, with respect to the unidentified documents allegedly in the possession of Evans, if Plaintiff wishes Evans to bring such documents to the courthouse with him when he testifies at trial, he will need to coordinate such efforts himself with Evans. If, at trial, Plaintiff believes one or more of these documents to bear some relevance to the issues of the case, he may move to have the document(s) admitted.

         Finally, Plaintiff seeks an order from this Court directing KSP mail room staff “to relinquish my [Plaintiff's] legal books which are” as follows: “the Uniform Commercial Codes 2017-2018 ed., ” “Represent yourself in court, 9th ed., ” “101 Law Forms for Personal Use, 10th ed., ” and “The little black [sic: book] of lawyers wisdom.” The Court has no knowledge of these books and is not privy to the precise policies and procedures underlying the Mail Room rules at KSP at it relates to these books. Additionally, the Court has not been made aware of why Plaintiff is allegedly being denied access to these books. At any rate, the Court considers this to be a matter of internal prison policy and directs Plaintiff that, should he wish to retrieve these books, he should follow internal procedures (i.e., file an internal grievance with the prison).

         V. Motion for Video Footage, Legal Books, and Documents

         The next motion at issue is Plaintiff's motion styled as a “Request for video footage, legal books, and documents pertaining to this trial also, a request for witnesses and why.” [DN 205.] The Court will address each of Plaintiff's requests in turn.

         A. Video Footage

         First, Plaintiff requests five different pieces of video footage pertaining to various alleged incidents which took place at KSP from 2013 to 2016 and which involve various Defendants in this action. However, by Order of the Court, all discovery was to be completed in this case no later than April 3, 2017. [DN 64.] Additionally, the trial in this matter is scheduled for April 3, 2018, roughly four weeks after Plaintiff filed this motion. [DN 200.] It is far too late in this case for Plaintiff to now seek such discovery from Defendants on the eve of trial, especially where Plaintiff actually sought as early a trial date as possible. The Court agrees with Defendants' characterization of the issue: “[e]ngaging in additional discovery now would unduly disrupt Defendants' trial preparations.” [DN 218, at 1.] See also Mallory v. Noble Correctional Institute, 45 F. App'x 463, 468-69 (6th Cir. 2002) (citing Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1114 (6th Cir. 2001) (“Where the full period for pretrial discovery has run its course, a party should generally be precluded from reopening discovery months after it has closed in a last-ditch attempt to salvage a deficient claim or defense.”); see also Perkins v. Am. Elec. Power Fuel Supply, Inc., 246 F.3d 593, 605 (6th Cir. 2001) (upholding the district court's denial of a motion to reopen discovery where the original discovery period lasted longer than a year and “Plaintiff waited until less than three months prior to the start of trial to file his motion.”).

         Plaintiff drafted a letter to the Court, wherein he alleges that he actually requested this footage during discovery, and so is not asking to reopen the discovery period. [See DN 219.] Plaintiff has filed numerous motions to compel in this case, see, e.g., DNs 44, 79, 80, 124, 190, but none of these motions dealt with the security camera footage Plaintiff now seeks. In short, there is no evidence to suggest that Plaintiff actually sought for or requested any of this footage at any time during the more-than two-year history of this case, and so the Court is not now inclined to reopen discovery mere weeks before trial.

         B. Documents and Things

         Plaintiff also makes requests in the instant motion for certain documents and things [sic throughout]: First, he requests the “x-ray of my back, neck & left should blade.” [DN 205, at 2.] Second, Plaintiff requests the “Medical Report of [D]octor Tangalag give Plaintiff a shot to his left shoulder [sic].” [Id.] In their Response, Defendants instructed the Court that Plaintiff's medical records were sent to him. [See DN 218, at 2 n.1.] Thus, insofar as this x-ray already exists, Plaintiff should be in possession of it. If he is requesting that x-rays be taken, this motion must be denied. The same is true of this medical report.

         Third, Plaintiff requests a document referred to as a “PREA classification.” [Id.] The Court is uncertain as to what Plaintiff refers, i.e., whether it is his classification he seeks, that of another inmate, or the PREA (“Prison Rape Elimination Act”) guidelines for classifications. In short, the request is vague and must be denied.

         Fourth, Plaintiff requests the “confidential report reported to a[d]justment committee. A[d]justment committee tape from Dec. 15, 2014.” [Id.] Again, the Court is uncertain precisely to what Plaintiff is referring, but makes note of the fact that the Adjustment Committee report from that date, and which relates to that occurrence, are filed in the case docket and will be made available to Plaintiff should he wish to review such documents in preparation for trial.

         Fifth, Plaintiff requests “Danny Heggen's PREA assesment tape from Michael Cooper and Garfield Evans.” [Id.] Sixth, Plaintiff requests “[a]ll reports of when Michael Cooper was stripped of [a]ll property and left in a[n] isolation cell.” [Id.] Seventh, Plaintiff requests the “Medical Report/All Medical Reports and Medicine since 2015 to 2018. PREA Risk Assessment & Uniform Citation from Nathaniel Deboe.” [Id.] These three requests appear to be attempts by Plaintiff to reopen discovery mere weeks before trial and, as ...

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