United States District Court, W.D. North Carolina, Charlotte Division
DANNY R. HEMBREE, JR., Plaintiff,
FNU BRANCH, et al., Defendants.
D. Whitney, Chief United States District Judge.
MATTER comes before the Court on pro se
Plaintiff's Motion for Reconsideration of Protective
Order, (Doc. No. 82), Motion for Extension of Time to
Complete Discovery and Stay Defendants' Motion for
Summary Judgment, (Doc. No. 91), and Motion for Extension of
Time to Respond to Motion for Summary Judgment, (Doc. No.
se Plaintiff, who is presently incarcerated at the
Harnett Correctional Institution, filed this civil rights
suit pursuant to 42 U.S.C. § 1983 with regards to
incidents that allegedly occurred at the Gaston County Jail.
The Amended Complaint, (Doc. No. 62), passed initial review
on claims against Defendants Branch and Whitlock for the use
of excessive force, against Defendants Allie and Flitt for
medical deliberate indifference, against Defendants Branch,
Carter, Hughes, Kim, Long and Whitlock for unwanted medical
care, and against Defendant Cloniger for supervisory
liability. (Doc. No. 64).
Court entered a Protective Order on motion of Defendants
Branch, Cloniger, Hughes, and Whitlock, on June 5, 2019, to
govern the use of, and access to, Defendants' discovery
that could lead to the breach of facility security, escape
from a correctional facility, cause injury to another inmate,
third parties, or facility personnel, and/or pose a threat to
the orderly running of the jail facility. See (Doc.
Nos. 78, 79).
has filed a Motion for Reconsideration of Protective Order
(Doc. No. 82), arguing that he was not immediately granted
access to discovery materials held by the Superintendent of
Harnett C.I. despite verbal and written requests. He also
complains that his ability to access and possess the
documents and his ability to take notes are restricted by the
Protective Order. He claims that some of the discovery
materials should not be covered by the Protective Order
because they are not truly “confidential security
material.” (Doc. No. 82 at 2). Plaintiff asks that
Defendants be required to certify that all the documents
within the Superintendent's custody are actually
“confidential security material” and that
discovery that does not qualify as such be given to his
possession. (Id.). Plaintiff also seeks a
“Stay” of Defendants' Motion for Summary
Judgment and for an extension of the discovery cutoff date,
because he was not yet allowed to see the documents that
Defendants provided to the Superintendent of the Harnett C.I.
Plaintiff has also filed a Motion for Extension of Time to
Answer Defendants' Motion for Summary Judgment, (Doc. No.
96), alleging that the Defendants transcription of the video
footage (Exhibit A to the Motion for Summary Judgment) is not
accurate, and asks that he be permitted to review the
discovery materials in their original format and to be
permitted to pursue further discovery if needed.
have filed a Response, (Doc. No. 94), explaining that the
materials sent to the Harnett C.I. Superintendent include:
(1) video footage and body camera footage depicting the
interior of the jail; (2) the internal incident report along
with written statements of Defendants Brach, Whitlock and
Hughes; (3) the March 9, 2016 booking records of Plaintiff at
the Gaston County Jail; and (4) the entirety of the
Sheriff's Use of Force policy. (Doc. No. 94 at 2).
Counsel for Defendants has provided Plaintiff with the
relevant documents in alternative formatting to the extent
possible to alleviate security concerns such that “the
pertinent contents of all relevant and non-security materials
are now in Plaintiff's possession.” (Doc. No. 94 at
2). Defendants also oppose an extension of time because
timely responses were provided to Plaintiff's discovery
requests and Plaintiff has already been granted one extension
of the discovery deadline during which he instituted no new
discovery. Defendants argue that the Motion for Stay should
be denied as moot because they filed their Motion for Summary
Judgment before Plaintiff's Motion to Stay was filed or
court has “wide latitude in controlling discovery and
… [t]he latitude given the district courts extends as
well to the manner in which it orders the course and scope of
discovery.” Ardrey v. United Parcel Service,
798 F.3d 679, 682 (4th Cir. 1986). A scheduling
order may be modified “only for good cause and with the
judge's consent.” Fed.R.Civ.P. 16(b)(4).
“Good cause” means that “scheduling
deadlines cannot be met despite a party's diligent
efforts.” Dilmar Oil Co. v. Federated Mut. Ins.
Co., 986 F.Supp. 959, 980 (D.S.C. 1997) (citations
omitted). In deciding whether additional discovery is
appropriate, courts have considered the following factors:
whether trial is imminent; whether the request to reopen
discovery is opposed; whether the non-moving party would be
prejudiced; whether the moving party was diligent during the
discovery period; the foreseeability of the request based on
the time line set forth by the court; and the likelihood that
the discovery will lead to relevant evidence. See Smith
v. United States, 834 F.2d 166, 169 (10thCir.
1987); Chester v. Adams Auto Wash, Inc., 2015 WL
9222893 at *2 (E.D. N.C. Dec. 17, 2015).
Court has previously granted Plaintiff's request to
extend the discovery deadline and Defendants represent that
he did not submit any new discovery requests. In light of
that fact, and Defense counsel's representation that
Plaintiff has now been directly provided with all relevant
and non-sensitive material, no further extension of time is
warranted. The Court will also deny Plaintiff's Motion
for Reconsideration of the Protective Order in light of the
sensitive nature of the material covered. Plaintiff will,
however, be granted an extension of time to respond to
Defendants' Motion for Summary Judgment until September
9, 2019. This will provide Plaintiff time to view the bodycam
footage and other materials being held by the Harnett
C.I.'s Superintendent The Court asks that the
Superintendent of Harnett CI. to be mindful of the importance
of granting Plaintiff the timely opportunity to review
discovery material under the Protective Order in preparation
of his case.
IS, THEREFORE, ORDERED that
1. Plaintiffs Motion for Reconsideration of Protective Order,
(Doc. No. 82), is DENIED
2. Plaintiffs Motion for Extension of Time to Complete
Discovery and Stay Defendants' Motion for Summary
Judgment, (Doc. No. 91), is DENIED.
3. Plaintiffs Motion for Extension of Time to Respond to
Defendants Branch, Cloniger, Hughes, Long, and Whitlock's
Motion for Summary Judgment, (Doc. No. 96), is
GRANTED until September 9,
4. The Clerk of Court is instructed to mail a copy of this
Order to all parties and to the Superintendent of Harnett