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Sherwood v. Schofield

United States District Court, W.D. Tennessee, Western Division

March 23, 2015

JASON SHERWOOD, Plaintiff,
v.
DERRICK SCHOFIELD, ET AL., Defendants.

ORDER ADDRESSING PLAINTIFF'S PENDING MOTIONS, GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE

JAMES D. TODD, District Judge.

Plaintiff Jason Sherwood, a prisoner acting pro se, who was, at the time, incarcerated at the West Tennessee State Penitentiary ("WTSP") in Henning, Tennessee, filed a complaint pursuant to 42 U.S.C. § 1983 on August 27, 2012. (ECF No. 1.)[1] On September 6, 2012, the Court granted Plaintiff's motion to proceed in forma pauperis and assessed the civil filing fee pursuant to the Prison Litigation Reform Act ("PLRA"), 28 U.S.C. §§ 1915(a)-(b). (ECF No. 6.) On January 3, 2013, the Court issued an order dismissing the case pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii)-(iii) and 1915A(b)(1)-(2); judgment was entered on January 10, 2013. (ECF Nos. 9 & 11.) Plaintiff appealed, and the Sixth Circuit affirmed in part but vacated the judgment and remanded for further proceedings on Plaintiff's Eighth Amendment claim against Defendant Barbee for allegedly depriving him of his daily one hour of recreation outside his cell. Sherwood v. Schofield, No. 13-5099, slip op. at 3-4 (6th Cir. Aug. 1, 2013).

Plaintiff subsequently attempted to amend his complaint to reinstate the claims that were dismissed, including his claims regarding grievances and the claim that the Defendants denied him access to the courts. Plaintiff also sought to assert a new claim concerning the amount of food he was being given. (ECF No. 24.) The Court denied Plaintiff's motion to amend on September 4, 2013. (ECF No. 26.)[2] Plaintiff's motion to reconsider that denial and to add yet another new claim concerning involuntary servitude was also denied. (ECF Nos. 33 & 45.)

On May 12, 2014, Defendant Barbee filed a motion for a 30-day extension of time in which to respond to Plaintiff's discovery requests. (ECF No. 48.) Counsel's accompanying certificate of consultation stated that she had consulted with Plaintiff through a prison counselor and that Plaintiff had no objection to the extension. (ECF No. 48-1.) Therefore, the Court granted the Defendant's motion on May 13, 2014. (ECF No. 49.) Plaintiff subsequently filed an objection to the certificate of consultation (ECF No. 50), stating that he had not authorized any prison counselor to speak for him. Plaintiff also filed a motion asking the Court to order Defendant's attorney to disclose the name of the counselor to whom she spoke. (ECF No. 51.)

While the Court does not doubt that the prison counselor in question told Defendant's attorney that Plaintiff had no objection to the requested extension, the counselor apparently was not authorized by Plaintiff to speak on his behalf. Nevertheless, Plaintiff was not prejudiced by the 30-day extension of time granted to the Defendant in this case. In addition, Defendant's attorney states that she did not record the name of the prison counselor who gave her the inaccurate information (ECF No. 55); therefore, the motion directing her to disclose the name is DENIED.

On July 8, 2014, Plaintiff filed a motion to compel discovery (ECF No. 56); Defendant filed a response in opposition on July 21, 2014 (ECF No. 57). In his motion to compel, Plaintiff asserts that Defendant responded to several of his interrogatories and requests for production of documents with objections instead of answers. Plaintiff also asserts that the answers were not signed, as required by Federal Rules of Civil Procedure 26(g) and 33(b).

In response to Plaintiff's motion, Defendant's counsel states that she mailed the original signature page for the discovery responses to Plaintiff. Defendant also points out that Plaintiff concedes he did not consult with counsel regarding the motion to compel, as required by Federal Rule of Civil Proceure 37(a)(1) and this Court's Local Rules. The Local Rules provide that failure to consult with regard to a non-dispositive motion "may be deemed good grounds for denying the motion." L.R. 7.2(a)(1)(B). While Plaintiff contends that he could not include the certificate of consultation because of the "contentious litigation" and "time constraints" (ECF No. 56 at 3), these are not sufficient reasons for failing to consult prior to filing the motion. Therefore, Plaintiff's motion to compel is DENIED for failure to comply with Federal Rule of Civil Procedure 37(b) and Local Rule 7.2(a)(1)(B).[3]

On January 12, 2015, Plaintiff filed a motion for preliminary injunction (ECF No. 63), to which the Defendant responded (ECF No. 66). Plaintiff contends that prison officials at the MCCX are sending out his legal mail without sufficient postage, even though he has authorized sufficient withdrawals from his inmate trust account to pay for it. However, any such claim is unrelated to this action[4] and is not within the jurisdiction of this Court. The MCCX is located in the Eastern District of Tennessee, and any claims against employees of that facility should be filed in that district.[5] The motion for preliminary injunction is DENIED.

Defendant Barbee filed his motion for summary judgment on September 11, 2014. (ECF Nos. 59 & 60.) Summary judgment is appropriate "if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "[T]he burden on the moving party may be discharged by showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Rule 56(c)(1) provides that "[a] party asserting that a fact cannot be or is genuinely disputed" is required to support that assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations..., admissions, interrogatory answers or other materials;[6] or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

In Celotex Corp., the Supreme Court explained that Rule 56:

mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact, " since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of [his] case with respect to which [he] has the burden of proof.

477 U.S. at 322-23. However, where the party moving for summary judgment also has the burden of persuasion at trial, the initial burden on summary judgment is higher. Under those circumstances, the moving party must show "that the record contains evidence satisfying the burden of persuasion and that the evidence is so powerful that no reasonable jury would be free to disbelieve ...


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