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Gary L. Harpool v. M. Beyer

October 25, 2011


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge



Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court are: 1) plaintiff's motion for a default judgment as to all defendants, filed on June 2, 2011; 2) plaintiff's motion to compel discovery, filed on August 8, 2011, to which he filed an "amendment on August 15, 2011, and to which defendants filed their opposition on August 24, 2011; 3) plaintiff's "informative" motion, filed on August 25, 2011; 4) plaintiff's motion in limine, filed on August 31, 2011; 5) plaintiff's motion for a court order requiring witnesses be brought to trial, filed on October 14, 2011.

Plaintiff's Allegations

The allegations of the first amended complaint, as previously set forth in the order and findings and recommendations, filed May 24, 2011, have been modified by the order filed on June 29, 2011, wherein defendants Palwick, Koelling and Seuber were dismissed for plaintiff's failure to exhaust administrative remedies (adopting the f&rs filed on May 24, 2011). On April 29, 2009, defendant Correctional Officer (C/O) Beyer ordered plaintiff to pack his property for a move to a different housing unit despite plaintiff's explaining to him that he had physical limitations and qualifying disabilities under the Americans With Disabilities Act (ADA) and that he had been ordered by the chief medical officer not to lift more than two pounds. First Amended Complaint (FAC), p. 3. Plaintiff tried to move several boxes to show defendant Beyer the chrono showing he had had recent surgery on the ulnar nerve in his left hand, which had caused atrophy of the muscle. Id. In doing so, he re-injured his ulnar nerve causing extreme pain and more muscle atrophy. Id. at 4. Plaintiff asked to speak to a lieutenant or sergeant; instead, defendant Beyer hand-cuffed him, placed him in Administrative Segregation and issued false misconduct charges against him alleging he was delaying a peace officer and refusing to move. Id., at 3-4, 15, 25-29.

As to defendant C/O Carter, plaintiff claims that the day before, on April 28, 2010, he made false allegations against plaintiff to defendant Correctional Sergeant Fowler which led to defendant Fowler's threatening to move plaintiff if he were disrespectful toward any C/O. FAC, p. 4. Defendant Carter accused plaintiff of "snitching on the C/O's" by writing inmate grievances and Men's Advisory Council (MAC) Reports to the associate warden. Id. Plaintiff therefore alleges retaliation by these three defendants for his grievances resulting in false disciplinary charges in violation of his First Amendment rights. Id. He also alleges that plaintiff violated his rights under the ADA. Id. Plaintiff seeks injunctive relief and money damages. Id., at 11.

Motion for a Default Judgment (Entry of Default)

No entry of default has been made concerning the defendants at issue; therefore, the undersigned construes plaintiff's motion as one for entry of default and default judgment per se.

Plaintiff is correct that defendants Beyer, Carter and Fowler should have filed their "answer or a motion under Rule 12" within 60 days of December 13, 2010.*fn1 Motion, p. 1. Instead, a motion to dismiss for failure to exhaust administrative remedies was filed timely on behalf of now former defendants Koelling, Palwick and Seuber, but as to the three remaining defendants it was simply conceded that plaintiff had administratively exhausted his claims as to them. In footnote 5 of the Order and Findings and Recommendations, filed on May 24, 2011, the undersigned stated the following:

Plaintiff appears to believe that defendants have failed to comply with the court's order of December 7, 2010, directing service of the first amended complaint by filing a motion to dismiss on behalf of the defendants instead of an answer. Opp., pp. 1-2. As the defendants waived service of the summons (docket # 27), they were permitted 60 days from December 13, 2010, to file either an answer or a Rule 12 motion on behalf of defendants, which they did, but only as to some of the defendants. It does appear that defendants Beyer, Carter and Fowler should have filed an answer, since those three defendants concede administrative exhaustion as to the claims against them. Defendants' position that Rule 12(a)(4)(A) permits them an additional 14 days following adjudication of a Rule 12 motion unless the court sets a different time (Reply, pp. 2-3) is not well-taken with regard to those parties (defendants) who are not the subject of such a motion. While the remaining defendants are not remiss in having filed a nonenumerated Rule 12(b) motion, the other defendants on behalf of whom no such motion was filed, at least by the time of the filing of the reply, should have filed an answer and will be directed to do so immediately or will be found to be in default.

Defendants Beyer, Carter and Fowler were therein subsequently ordered to file an answer within seven (7) days or be found in default. The answer was filed two days later, on May 26, 2011. Thus, while plaintiff is correct that an answer on behalf of these defendants should have been filed earlier, which the undersigned has previously recognized, and his frustration with defendants, or their counsel, is understandable, the court did permit defendants the opportunity to file an answer, within a very narrow timeline. Plaintiff was aware of this when he filed this motion as is evidenced in the motion and should also be aware that the court would be highly unlikely to find the defendants in default after complying with this order. The motion for entry of default will be denied.

Motion to Compel

In the original motion, plaintiff moved, under Fed. R. Civ. P. 37, for a response to all of his discovery requests propounded upon the defendants. See Motion to Compel (MTC), pp. 1-4. In his "amendment" to his motion to compel, filed subsequently, plaintiff conceded that the defendants had submitted responses to: his requests for admissions directed toward all defendants; his "first set of interrogatories" propounded upon all defendants and his requests for production of documents directed to all defendants, which he received on or about August 8, 2011. AmMTC, p. 1. However, plaintiff contended that the responses were vague, ambiguous and evasive, and plaintiff argued that defendants had yet to respond to his "Depositions by written questions" which he had served on the defendants. Id.

Citing Fed. R. Civ. P. 37(a)(4), which states that "an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond," plaintiff argues that he is entitled to his expenses in bringing the motion, including a reasonable attorney's fee, should he prevail on his motion. AmMTC, p. 2. Of course, plaintiff, who is not an attorney, cannot qualify for attorney's fees. Plaintiff argues that sanctions should be imposed for the defendants' alleged failure to respond to plaintiff's discovery motions and to the court's scheduling order. Id., at 3. He also, in ...

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