United States District Court, E.D. Arkansas, Pine Bluff Division
ORDER
KRISTINE G. BAKER UNITED STATES DISTRICT JUDGE
On
December 18, 2018, United States Magistrate Judge Jerome T.
Kearney filed Proposed Findings and Recommendations in this
case recommending that defendants' motion for summary
judgment be granted; that plaintiff Damien Ford's
retaliation claim against defendants be dismissed without
prejudice; and that Mr. Ford's remaining claims against
defendants be dismissed with prejudice (Dkt. No. 85). On
December 28, 2018, Mr. Ford filed a motion for extension and
motion to compel (Dkt. Nos. 86, 88), and on January 15, 2019,
Mr. Ford filed a motion to stay (Dkt. No. 91).
On
February 6, 2019, the Court entered an Order granting Mr.
Ford's motion for extension, denying as moot Mr.
Ford's motion to stay, and directing defendants to
provide to the Court within 10 days of the entry of the Order
a full copy of Mr. Ford's deposition transcript;
defendants' explanation of the events that Mr. Ford
contends occurred in Warden Ball's office; and an
explanation of why Mr. Ford did not possess a complete copy
of his deposition transcript to the extent defendants were
aware of such an explanation (Dkt. No. 93). In the Order, the
Court took under advisement Mr. Ford's motion to compel
and determined that it would set a revised deadline for Mr.
Ford to file any objections to Judge Kearney's Proposed
Findings and Recommendations by separate order after ruling
on the pending motion to compel (Id., at 2). On
March 7, 2019, Mr. Ford filed another motion for extension of
time (Dkt. No. 95), and on April 1, 2019, Mr. Ford filed
objections to the Proposed Findings and Recommendations (Dkt.
Nos. 97, 98, 99).
For the
reasons that follow, the Court denies as moot Mr. Ford's
motion to compel (Dkt. No. 88) and grants Mr. Ford's most
recently filed motion for extension of time (Dkt. No. 95).
After careful consideration of the Proposed Findings and
Recommendations, Mr. Ford's objections, and a de
novo review of the record, the Court adopts the Proposed
Findings and Recommendations in their entirety as this
Court's findings (Dkt. No. 85). The Court addresses each
motion below.
I.
Motion To Compel
On
February 8, 2019, defendants filed a response to order and
response to Mr. Ford's motion to compel (Dkt. No. 94).
Defendants argue that Mr. Ford's motion to compel should
be denied because he did not request a complete copy of his
deposition in discovery or before filing his response to
defendants' motion for summary judgment and because Mr.
Ford failed to include a certification that he conferred or
attempted to confer with defendants prior to filing the
motion as required by Federal Rule of Civil Procedure
37(a)(1) (Id., ¶¶ 11, 14). Defendants
further argue that Mr. Ford's motion to compel should be
denied as moot because defendants have since provided him
with a complete copy of the deposition (Id.,
¶¶ 13-14). In the response, defendants join Mr.
Ford's motion to extend time to file his objections to
the Proposed Findings and Recommendations (Id.,
¶ 15).
Attached
to the response is a complete copy of Mr. Ford's
deposition (Dkt. No. 94-1). Defendants also attached a
declaration of Warden Todd Ball (Dkt. No. 94-2). In the
declaration, Warden Ball avers that, on or around November 8,
2018, Mr. Ford and Senior Assistant Attorney General Renae
Hudson spoke on a conference call regarding details of Mr.
Ford's claims against Arkansas Department of Correction
(“ADC”) defendants (Id., ¶ 3).
Warden Ball contends that Ms. Hudson prepared a declaration
for Mr. Ford to review which clarified matters they discussed
pertaining to his due process claims but that Mr. Ford
reviewed the declaration and refused to sign it
(Id.). Warden Ball asserts that the unsigned
declaration was shredded and that there was no discussion of
Mr. Ford agreeing to accept a shorter deposition
(Id.). Warden Ball contends that Mr. Ford's
claim that Mr. Ford spoke to Ms. Hudson in Warden Ball's
office is false (Id.). Mr. Ford does not dispute in
any filings subsequent to defendants' response
defendants' explanation of the events that Mr. Ford
previously contended occurred in Warden Ball's office.
On
February 11, 2019, defendants provided to the Court a
complete copy of Mr. Ford's deposition in this case.
Although Mr. Ford refused to accept a full copy of the
deposition from ADC staff purportedly because it was not in a
brown envelope and had not come directly from the Attorney
General's Office, defendants attached a complete copy to
their response in opposition to Mr. Ford's motion to
compel (Dkt. No. 94-1, Dkt. No. 94-2, at 2). According to
defendants' certificate of service, counsel for
defendants certified that she mailed the response and
attached documents, including the complete copy of Mr.
Ford's deposition, to Mr. Ford on February 9, 2019 (Dkt.
No. 94, at 6). The Court is satisfied that Mr. Ford received
the complete copy of the deposition because Mr. Ford included
the complete copy in the objections he filed on April 1, 2019
(Dkt. No. 97, at 20-86). Thus, the Court denies as moot Mr.
Ford's motion to compel (Dkt. No. 88).
II.
Objections To Proposed Findings And Recommendations
As
discussed supra, the Court granted by prior Order
Mr. Ford's December 28, 2018, motion for extension (Dkt.
Nos. 86, 93). In the Order, the Court determined that it
would set a revised deadline for Mr. Ford to file any
objections to Judge Kearney's Proposed Findings and
Recommendations by separate order after ruling on the pending
motion to compel (Dkt. No. 93, at 2).
On
March 7, 2019, Mr. Ford filed a second motion for extension
of time and memorandum of law in support of his motion for
extension of time (Dkt. Nos. 95, 96). In the motion, Mr. Ford
requests an additional 30-day extension (Dkt. No. 95, at 1).
Mr. Ford represents that, at the time he filed the motion, he
had problems with the law library and that he had been
working on a 76-page brief in support of a summary judgment
motion in a different case (Id., at 1-2). On April
1, 2019, Mr. Ford filed objections to Judge Kearney's
Proposed Findings and Recommendations (Dkt. No. 97), as well
as a statement of disputed material facts (Dkt. No. 98) and a
statement of undisputed material facts (Dkt. No. 99).
The
Court determines that Mr. Ford's second motion for
extension of time was not necessary because the Court had not
yet set a revised deadline for Mr. Ford to file objections to
Judge Kearney's Proposed Findings and Recommendations.
Nevertheless, the Court grants Mr. Ford's motion for
extension (Dkt. No. 95) and deems his objections and
documents filed on April 1, 2019 (Dkt. No. 97), timely.
From
the Court's review of Mr. Ford's filing, it appears
that Mr. Ford may have intended to file a response to
defendants' motion for summary judgment rather than
objections to Judge Kearney's Proposed Findings and
Recommendations. However, on November 29, 2018, Judge Kearney
entered an Order directing Mr. Ford to respond to
defendants' motion for summary judgment within 15 days of
the entry of the Order (Dkt. No. 79). On December 13, 2018,
Mr. Ford filed a declaration in opposition to defendants'
motion for summary judgment (Dkt. No. 83). After considering
defendants' motion for summary judgment, brief in
support, and statement of facts, as well as Mr. Ford's
response, Judge Kearney filed Proposed Findings and
Recommendations on December 13, 2018 (Dkt. No. 85)
(“This matter is before the Court on Defendants'
Motion for Summary Judgment, Brief in Support[, ] and
Statement of Facts . . . Plaintiff filed a Response in
opposition to the Motion . . . .”). Accordingly, the
time to supplement Mr. Ford's response in opposition to
defendants' motion for summary judgment had expired by
the time Mr. Ford filed his objections, statement of disputed
material facts, and statement of undisputed material facts
(Dkt. Nos. 97, 98, 99). The Court therefore considers these
filings as objections to Judge Kearney's Proposed
Findings and Recommendations.
Mr.
Ford makes several objections (Dkt. Nos. 97, 98, 99). Many of
the objections reiterate arguments Mr. Ford set forth in his
amended complaint (Dkt. Nos. 13, 97, 98, 99). He also argues
that, “though he was not timely according to the
ADC's inmate grievance procedure AD 14-16, he was timely
for purposes of exhaustion according to the PLRA . . .
” (Dkt. No. 97, at 8). He disputes that “Gary
Nalls, the disciplinary serving officer claiming that Mr.
Ford only gave him the names of two (2) witnesses” and
argues that he “actually gave him five” (Dkt. No.
98, at 2). Mr. Ford further disputes several of Disciplinary
Hearing Officer Justine Minor's findings (Id.,
at 3). Mr. Ford objects to defendants' statement of
undisputed material fact number 39 that Mr. Ford
“admitted that[, ] during his disciplinary hearing[, ]
testimony was provided by the major that he participated in
the assaults at the Delta Unit” (Id., at 4).
Mr. Ford submits that “defendants are trying to take
Mr. Ford's words out of context” and that his
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