United States District Court, W.D. Louisiana, Alexandria Division
H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE
the Court is a Motion for Contempt (Doc. 177) filed by
pro se Plaintiff Marco Damon Duncan
(“Duncan”) (#37679-048). Duncan is an inmate in
the custody of the Federal Bureau of Prisons incarcerated at
the United States Penitentiary in Florence, Colorado.
Defendants have produced the supplemental discovery responses
ordered by the Court, Duncan's Motion for Contempt (Doc.
177) is DENIED AS MOOT.
initiated this litigation pursuant to Bivens v. Six
Unknown Agents of the Federal Bureau of
Narcotics (Docs. 1, 16, 20) alleging that he was
subjected to excessive force when he was incarcerated at the
United States Penitentiary in Pollock, Louisiana.
previously filed a Motion to Compel or Show Cause (Doc. 102)
arguing that Defendants failed to comply with the Court's
March 19, 2019 minute entry order (Doc. 89) regarding
discovery. Specifically, Duncan alleged video he was allowed
to view did not contain the specific video footage from
January 13, 2017 detailed in his discovery request. (Doc.
102). Duncan sought to compel the specific video requested
and the name of the John Doe defendant requested in
discovery. Id. A hearing was conducted on July 8,
2019, at which the Court denied in part and granted in part
Duncan's Motion. Defendants were ordered to
“produce the transportation video from FCI Oakdale, and
any other video from either Oakdale or Pollock on January 13,
2017, that includes Duncan, OR shall certify in a sworn
discovery response that no such video exists.” (Doc.
now seeks to hold Defendants in contempt of this Court's
Order (Doc. 164) for failing to produce “original
copies of the videotape footage from the B-2 housing unit on
January 13, 2017, specifically the long version of the video
footage showing the incident that occurred there and the
plaintiff's email video.” (Doc. 177). Duncan
further asserts Defendants fails to state or certify that no
such video exists. Id.
Law and Analysis
Rule of Civil Procedure 37(b)(2) provides that when “a
party . . . fails to obey an order to provide or permit
discovery, including an order under Rule 26(f), 35, or 37(a),
the court where the action is pending may issue further just
orders.” Fed.R.Civ.P. 37(b)(2)(A). A party commits
contempt when he violates a definite and specific order of
the court requiring him to perform or refrain from performing
a particular act or acts with knowledge of the court's
order. Travelhost, Inc. v. Blandford, 68 F.3d 958,
961 (5th Cir. 1995). Contempt is committed only if a person
violated a court order requiring in specific and definite
language that a person do or refrain from doing an act.
Martin v. Trinity Industries, Inc., 959 F.2d 45, 47
(5th Cir. 1992).
movant in a civil contempt proceeding bears the burden of
establishing by clear and convincing evidence (1) that a
court order was in effect, (2) that the order required
certain conduct by the respondent, and (3) that the
respondent failed to comply with the court's
order.” Test Masters Educational Services, Inc. v.
Singh, 428 F.3d 559, 581-82 (5th Cir. 2005). The
evidence must be “‘so clear, direct and weighty
and convincing as to enable the fact finder to come to a
clear conviction, without hesitancy, of the truth of the
precise facts of the case.'” Id. at 582
(quoting Piggly Wiggly Clarksville, Inc. v. Mrs.
Baird's Bakeries, 177 F.3d 380, 383 (5th Cir.
seeks to hold Defendants in contempt of the Court's Order
(Doc. 164) to produce video surrounding the January 13, 2017
incident that includes Duncan, or a certification that no
such video exists. (Doc. 177). However, on July 29, 2019,
Defendants issued supplemental discovery to Duncan in
compliance with this Court's Order. (Doc. 178-1, pp.
1-2). Defendants' supplemental discovery responses
11. Please produce original copies of any and all videotape
footage that show the plaintiff either before, during, or
after he was medically assessed inside of the holding cell
located in the R&D ...