Harrison v. Nicholson

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION CIVIL CASE NO. 1:20-cv-00244-MR

MARQUIS DECHANE HARRISON, ) ) Plaintiff, ) ) vs. ) ) BRANDON NICHOLSON, ) ORDER ) Defendant. ) _______________________________ ) THIS MATTER is before the Court on Plaintiff’s pro se Request for Deposition by Oral Examination [Doc. 25], Motions for an Order Compelling Discovery [Docs. 25-1, 30], and Motion for Appointment of Counsel [Doc.

29].

I. BACKGROUND The incarcerated pro se Plaintiff filed the Complaint pursuant to 42 U.S.C. § 1983 alleging that Defendant Brandon Nicholson, an officer at the Henderson County Jail, used excessive force against him on October 28, 2017. The Amended Complaint survived initial review. [Docs. 10, 11]. On December 7, 2020, the Court entered a Pretrial Order and Case Management Plan setting the discovery cutoff date as April 5, 2021 and the deadline for filing dispositive motions as May 5, 2021. [Doc. 17].

Several pro se Motions are presently pending. The Plaintiff filed a Request for Deposition by Oral Examination and a Motion for an Order Compelling Discovery, both of which were docketed on March 12, 2021. [Doc. 25]. He filed another Motion for an Order Compelling Discovery [Doc.

30] and a Motion to Appoint Counsel [Doc. 29], both of which were stamped by the prison on April 9, 2021 and docketed on April 14, 2021, after the discovery cutoff date.1 In the Request for Deposition by Oral Examination, the Plaintiff alleges that the Defendant “tailored” his Interrogatory response “for the betterment of their2 position” and lied by claiming that he has no knowledge of the incident and by denying the existence of video footage. [Doc. 25 at 3]. The Plaintiff therefore seeks “an oral deposition by remote means recorded via video or deposition by video conference” which the Plaintiff states he will arrange. [Id. at 3-4].

In the first Motion for an Order Compelling Discovery, the Plaintiff asks the Court to compel the Defendant to produce video footage of the incident,

In the second Motion for an Order Compelling Discovery, the Plaintiff again requests to inspect and copy the unedited video footage. [Doc. 30 at 1]. The Plaintiff alleges that Defendant Nicholson brought a video to the deposition, but that the video “skipped several times, indicating that it has been edited.” [Id. at 1-2]. The Plaintiff contends that “actual video footage of the attack” exists that would show other officers were present and watched the incident. [Id. at 2]. The Plaintiff asks the Court to compel the Defendant to produce the entire original unedited video and to sanction the Defendant for tampering with evidence and for failing to produce it. [Id.].

In his Motion for Appointment of Counsel, the Plaintiff asserts that: a trial has been set;3 the issues in the case are complex; the Plaintiff’s imprisonment greatly limits his ability to “navigate through trial;” a trial will likely involve conflicting testimony that counsel would be better able to present; and the Plaintiff has limited access to a law library and limited knowledge of the law. [Doc. 29 at 1].

Defendant Nicholson has filed Responses to the discovery Motions. [Docs. 28, 31]. As to the Plaintiff’s deposition request, counsel for Defendant Nicholson agrees to make available whomever the Plaintiff wishes to depose by remote means. As to the Plaintiff’s Motions to Compel, counsel for Defendant Nicholson asserts that he informed the Plaintiff in the discovery responses that a video is available but that a Court order was needed under North Carolina law, N.C. Gen. Stat. § 132-1.4A to produce the video.

Counsel for Defendant Nicholson asserts that he provided the Plaintiff a proposed protective order and a self-addressed stamped return envelope for the Plaintiff to return the signed protective order.4 Rather than signing and returning the proposed protective order or returning it with edits, however,

The Plaintiff has not replied and the time to do so has expired.

II. DISCUSSION The Court will first address the Plaintiff’s request for the appointment of counsel. There is no absolute right to the appointment of counsel in civil actions such as this one. Therefore, a plaintiff must present “exceptional circumstances” in order to require the Court to seek the assistance of a private attorney for a plaintiff who is unable to afford counsel. Miller v. Simmons, 814 F.2d 962, 966 (4th Cir. 1987). The Plaintiff has failed to demonstrate the existence of extraordinary circumstances that would warrant the appointment of counsel, and therefore, this request is denied.

Second, the Plaintiff seeks to compel depositions and the production of video footage. The Plaintiff does not certify that he attempted in good faith to resolve the discovery disputes before engaging the Court’s assistance as required by Federal Rule of Civil Procedure 37(a)(1). See also LCvR 7.1(b) (this Court’s local civil rules require that a non-dispositive civil motion “must show that counsel have conferred and attempted in good faith to resolve areas of disagreement or describe the timely attempts of the movant to confer with opposing counsel;” motions that fail to do so “may be summarily denied.”). Furthermore, Defendant Nicholson indicated in his Response, to which the Plaintiff did not reply, that counsel is willing to facilitate the Plaintiff’s requests for depositions and video footage, but that the Plaintiff has failed to take the required actions to obtain the same. Further, to the extent that the Plaintiff seeks video footage from the incidents inside the shower, defense counsel explains that no such video exists. The Plaintiff’s Motion to Compel as to that matter is therefore moot. Moreover, the Plaintiff’s Motion with regard to depositions is too vague to support relief because the Plaintiff failed to identify the individuals whom he seeks to depose; therefore, that Motion is denied. The Plaintiff’s request for sanctions is likewise denied because he has failed to demonstrate that any basis for imposing sanctions against the Defendant exists.

The Court further notes that the discovery deadline has now expired, the Plaintiff has not sought an extension of the discovery deadline, and no good cause for an extension is apparent from the Plaintiff’s Motions. See generally Fed. R. Civ. P. 6 (in general, the court may extend time for good cause: (a) with or without a motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or (b) on motion made after the time has expired if the party failed to act because of excusable neglect); Fed. R. Civ. P. 16(b)(4) (a scheduling order may be modified “only for good cause and with the judge’s consent.”).

In sum, the Plaintiffs discovery motions are denied.

IT IS, THEREFORE, ORDERED that the Plaintiffs Request for Deposition by Oral Examination [Doc. 25], Motions for an Order Compelling Discovery [Docs. 25-1, 30], and Motion for the Appointment of Counsel [Doc.

29] are DENIED.

IT IS SO ORDERED.

Signed: May 26, 2021 Martifi Reidinger ee Chief United States District Judge AS