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. 186) 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.
186) is DENIED.
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 Discovery (Doc. 120)
arguing Defendants failed to respond to Duncan's Second
Request for Production of Documents. Duncan's motion also
asserted Defendants had not produced all available video
surveillance footage in their possession. (Doc. 120, p. 2).
On July 8, 2019, the Court denied in part and granted in part
Duncan's Motion to Compel Discovery (Doc. 120). (Doc.
164). Defendants were ordered to “supplement their
responses to document request numbers 4, 5, 6, 7, 9, and 10,
or certify that no responsive documents exist, on or before
July 29, 2019.” (Doc. 164).
now seeks to hold Defendants in contempt of this Court's
Order (Doc. 164) for failing to produce the CD referenced in
Defendants' Supplemental Response Number 4, for failing
to provide complete records in relation to Supplemental
Response Number 5, and for “ignoring” the
“videotapes and documents aspect of the Request for
Production, to which the Court ordered a certified
response.” (Doc. 186). Duncan attaches Defendants'
Supplemental Response to Plaintiffs' Second Request for
Production of Documents (Doc. 186-3, p. 1) and Chain of
Custody Forms (Doc. 186-3, pp. 4-12). Duncan contends
Defendants have not provided chain of custody logs for Item
Numbers POL-17-00001 through POL-17-00049. (Doc. 186-2, p.
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).
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.
Duncan seeks to hold Defendants in contempt of this
Court's order (Doc. 164) for failing to supplement their
discovery responses to Duncan's Second Request for
Production of Documents. (Doc. 186). However, on July 29,
2019, Defendants issued supplemental discovery responses to
Duncan in compliance with this Court's order. (Doc.
186-3, pp. 1-3). Defendants stated:
No. 4: Please produce copies of any and all
photographs taken by Lieutenant Stephen Coggins on January
13, 2017, that show any areas inside or around the B-2
housing unit, secured or main corridors, and outside ...