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Duncan v. Nunez

United States District Court, W.D. Louisiana, Alexandria Division

November 12, 2019

MARCO DAMON DUNCAN, Plaintiff
v.
JOSE NUNEZ, ET AL., Defendants

          DRELL JUDGE.

          MEMORANDUM ORDER

          JOSEPH H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE.

         Before 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.

         Because Defendants have produced the supplemental discovery responses ordered by the Court, Duncan's Motion for Contempt (Doc. 186) is DENIED.

         I. Background

         Duncan initiated this litigation pursuant to Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics[1] (Docs. 1, 16, 20) alleging that he was subjected to excessive force when he was incarcerated at the United States Penitentiary in Pollock, Louisiana.

         Duncan 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).

         Duncan 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. 1).

         II. Law and Analysis

         Federal 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).

         “A 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. 1999)).

         Here, 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 ...

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