Case: 4:10-cv-02436-SNLJ Doc.

#: 124 Filed: 03/29/13 Page: 1 of 12 PageID #: 501

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION MARK R. PERRY, Individually & on behalf of a similarly-situated class of current and future inmates, Plaintiffs, v. BARRY MARTIN & DWAYNE DARDEN, & CITY OF ST. LOUIS, MISSOURI, Defendants. } } } } } } } } } }

Cause No. 4:10-CV-2436 (SNLJ) Jury Trial Demanded

MOTION TO COMPEL DISCLOSURE AGAINST DEFENDANT CITY OF ST. LOUIS Pursuant to Fed.R.Civ.P. 37(a) and E.D.Mo L.R. 3.04(A), plaintiff, by and through counsel, Rufus J. Tate, Jr., hereby moves for an Order compelling the City of St. Louis forthwith to completely and accurately disclose or produce the duly requested documents for the following reasons: 1) On or about February 25, 2011, plaintiff filed his pro se complaint against the City of St. Louis (City) Commissioner of Corrections (Eugene Stubblefield) in essence for his tacit authorization of, deliberate indifference to, and/or failure to investigate and/or remedy his corrections officers (Darden and Martin) use of unlawful force against plaintiff on May 8, 2010 [Doc. # 7]; 2) In his capacity as Commissioner, Stubblefield was the Citys policy-making official for all matters concerning the training, supervision, and discipline of City corrections officials relating to the unlawful use of force against inmates and/or failure to protect inmates as alleged by plaintiff. See Ratification Packet [Doc. # 113-3]; 3) Prior to the filing of Stubblefields motion to dismiss, plaintiff steadfastly and specifically requested, inter alia, any and all grievance complaints, or other documents received by

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[Stubblefield] or his agents of St. Louis City Department of Corrections concerning mistreatment of inmates by MartinDardenand any memoranda, investigation files or other documents created in response to such documents sinceStubblefield has been employedby the Department of Corrections. [Doc. # 6-1 1, 35 5, 36 at 1-2, 36 6, 37 14]. Plaintiffs discovery requests were each specifically tailored to adduce evidence of a municipal custom or ratification of sadistic and malicious use of force against inmates in the City; 4) At all pertinent times herein, Stubblefield was represented by legal counsel, and knew precisely what information plaintiff was seeking. Stubblefield knew that the evidence of municipal custom or ratification was within his (Citys) exclusive possession and control; and that without such evidence, plaintiff could not overcome Stubblefields motion to dismiss; 5) Neither Stubblefield, Darden nor Martin ever answered the discovery requests, or even filed a request for a protective order in accordance Rule 26(c); 6) Stubblefield instead mislead the Court by suggesting that plaintiff was proceeding based upon conjecture [Doc. # 30]. However, at the time of his conjecture remarks, Stubblefield specifically knew (i) that Martin and/or Darden had prior disciplinary records, (ii) that grievances against several other corrections officer had been duly filed with the Citys grievance Coordinator for unlawful force and/or failure to protect, and (iii) that Stubblefield had ratified such unlawful conduct by failing to discipline such officers even when he personally acknowledged that disciplinary action was warranted. See, e.g., Doc. 113-3

[Ratification Packet]. Material portions of the ratification packet existed before Stubblefield even filed his motion to dismiss;

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7) Stubblefields false and misleading representations, combined with pro se prisoners severely circumscribed ability to communicate with the outside world and/or to pursue discovery violations directly caused this Court to dismiss Stubblefield with prejudice. See, e.g., Order [Doc. 50] (Plaintiff has failed to meet this burden, thus he fails to state a viable 1983 claim against defendant Stubblefield. Plaintiff has failed to allege personal involvement by

Stubblefield in the alleged wrongful conduct or to allege any knowledge by Stubblefield of any prior complaints of assault by Martin and Darden. As for his failure-to-discipline, all plaintiff has done is speculate and has failed to state how any failure to discipline the correctional officers (after the alleged assault) rises to the level of a constitutional violation for the alleged assault in the first place.). But see Plaintiffs Discovery Requests [Doc. # 6-1 1, 35 5, 36 at 1-2, 36 6, and 37 14] and City Ratification Packet [Doc. # 113-3]; 8) Stubblefield, through counsel, clearly knew that plaintiff was unable to serve as his own advocate, and took unfair advantage of plaintiff. For example, plaintiff pro se filed a strange pleading joining defendants motion to stay plaintiffs own discovery efforts [Doc. # 31, 32] in the midst of Stubblefields then pending motion to dismiss; 9) Stubblefields deceptions, for a time, deprived the Court of its ability to determine whether there was sufficient evidence of tacit authorization, deliberate indifference to, and/or failure to investigate and/or remedy the widespread unlawful use of force and/or failure to protect City inmates; 10) Despite the Courts appointment of counsel more than one year ago, the Citys pre-trial discovery tactics have apparently continued unabated; 11) On January 28, 2013, plaintiff duly filed his putative class action against the City of St. Louis (City) for its municipal custom of failing to deter and correct either the unlawful use of force 3

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against plaintiff and similarly-situated City inmates and/or the Citys custom of failing to protect inmates from a known risk of harm by other corrections officers or their surrogates [Docs. # 114, 115]; 12) To establish the alleged municipal custom(s), on January 31, 2013, plaintiff issued subpoenas to various City officials, including, but not limited to, the Grievance Coordinator, Director of Personnel, and Chairman of the Public Safety Committee; 13) On March 4, 2013, the City filed its (overdue) response/objections to each of the aforementioned subpoenas [Responses attached as Doc. # 124-1 (Grievance Coordinator), 124-2 (Personnel Response), and 124-3 (Public Safety Response)]; 14) On March 4, 2013, at 6:48 PM, plaintiff attempted to resolve the discovery dispute in good faith by sending an e-mail to the Citys counsel [Doc. # 124-4 (Good Faith Letter)]; 15) On March 5, 2013, at 11:56 AM, the Citys counsel responded by requesting additional time until March 11, 2013, to modify the response. As of this writing, no modification has been served upon plaintiffs counsel; 16) The Citys inmate grievance policy [Doc. 124-5 at 1 (Grievance Policy)] was first implemented at least as early as 2003; and revised by Stubblefield prior to the unlawful assault upon plaintiff Perry. The grievance policy specifically requires that the Grievance

Coordinator collect, electronically track and preserve all inmate grievances by Classification Number. Id. at 16-21 (describing Grievance Tracking System). Classification g(1) specifically refers to Excessive use of force. Id. at 19. Classification g(7) specifically refers to Abuse by Staff. Id. at 19. Finally, classification h(4) specifically refers to failure to protect. Id. at 20;

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17) In response to RFP 1 which sought A report or compilation of any and all grievance files (non-redacted) since 2003 relating to inmate complaints of excessive or unnecessary force, and/or failure to protect, the Grievance Coordinator responded: Objection: Overly broad and not reasonably calculated to lead to the discovery of admissible evidence to the extent that it inquires into a time period beyond that relevant to Plaintiffs Complaint. Further, to whatever extent Plaintiff may be requesting confidential employment information about an inmate or employee who is not a party to this lawsuit, there is a fundamental right of privacy in personnel records. Even though there have been times when the courts have permitted limited discovery of confidential personnel records, this would only occur to put matters at issue in the pleadings, which does not apply herein. See Doc. 124-1 (Grievance Coordinator Response). 18) The City Grievance Coordinators objection is not well-taken because the information requested is (i) within the exclusive possession and control of the Grievance Coordinator, (ii) the Citys Inmate Grievance Policy requires the coordinator to compile and track the information requested as a matter of course, (iii) the Court has already entered a protective order in this case to prevent improper disclosure of employee identifying information [Doc. # 107-1, 110], (iv) the disposition of prior excessive force and/or failure to protect grievances is clearly relevant to the alleged unlawful municipal custom and/or ratification theory at issue, and (v) City policy already mandates that the Grievance Coordinator make a public report of the requested grievances each year to the City Board of Aldermen Public Safety Committee. See Doc. # 124-5 at 4 (Inmate Grievance Policy) (External Review Committee: An independent and external committee acting under the authority of the St. Louis City Public 5

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Safety Committee of the Board of Alderman, to monitor the Inmate Grievance Procedure and other aspects or conditions of confinement within the Division of Corrections.); 19) The Grievance Coordinators withholding of the requested information without this Courts intervention would effective allow the City Grievance Coordinator to unilaterally exclude any evidence of tacit authorization, deliberate indifference to, and/or failure to investigate and/or remedy the widespread unlawful use of force and/or failure to protect City inmates. Such an exclusion would also deprive plaintiff of his ability to prove

numerosity and typicality of claims for purposes of Rule 23(a) relating to class actions; 20) Since 2003, the City Inmate Grievance Policy directs the City Board of Aldermen or its designee to monitor and review the City inmate grievances. Accordingly, plaintiff directed the following document request to the Hon. Craig N. Schmid, Chair of the Public Safety Committee, i.e., the City Board of Aldermen designee: RFP 1: Any and all reports, findings, transcripts, and/or analyses (written or electronic) issued by or received by the Public Safety Committees External Review Committee since 2003 relating to the Division of Corrections. *** RFP 2: To the extent not already provided, any and all reports, findings, transcripts and/or analyses (written or electronic) issued by or received by the Board of Alderman (or committee) since 2003 concerning or pertaining to inmate abuse, excessive force, failure to protect, inadequate training or supervision within the Division of Corrections. *** RFP 3: A report or compilation of any and all judgments, settlement agreements, consent decrees and/or payments involving the Division of Corrections since 2003 and 6

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stemming from complaints of current or former inmates about abuse, excessive force, inadequate training or supervision, failure to discipline, and/or failure to protect. See Public Safety Response [Doc. 124-2]; 21) In response to the three documentary requests reflected in par. 20 above, the Public Safety Committees response substantively mirrored the Grievance Coordinators blanket objection reflected in par. 17 above. See Public Safety Response [Doc. 124-2]; 22) The Citys Public Safety Committees response is not well taken because the Citys Inmate Grievance Policy clearly mandates that the City Board of Aldermen designee monitor Inmate Grievances. See Inmate Grievance Policy [Doc. # 124-5 at 4] (External Review

Committee: An independent and external committee acting under the authority of the St. Louis City Public Safety Committee of the Board of Alderman, to monitor the Inmate Grievance Procedure and other aspects or conditions of confinement within the Division of Corrections.); 23) To permit the City Board of Aldermen to withhold the requested information concerning City inmate grievances would effectively allow the City to unilaterally exclude evidence of tacit authorization, deliberate indifference to, and/or failure to investigate and/or remedy the widespread unlawful use of force and/or failure to protect City inmates. The District Court has recently dealt with an analogous scenario in Rohrbough v. Hall, 4:07CV00996 ERW, 2008 WL 4722742 (E.D. Mo. Oct. 23, 2008) aff'd in part, appeal dismissed in part, 586 F.3d 582 (8th Cir. 2009) (While Plaintiff has introduced evidence of numerous complaints of excessive use of force that have been filed against officers, Plaintiff has introduced no evidence that the Commissioner Defendants had notice of these complaints.); 7

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24) More than one year before defendants physically beat plaintiff, the City had notice of the alleged municipal custom and/or ratification based upon interviews of current and former City corrections officials. See ACLU Report Suffering in Silence [Doc. # 113-1]. That report prompted a City Board of Aldermen inquiry; 25) The City also has notice of the alleged municipal custom and/or ratification as reflected in least 30 separate federal civil rights lawsuits naming Stubblefield as defendant in his capacity as City Commissioner for events transpiring during his tenure and before Martin and Darden physically beat plaintiff. See PACER Report [Doc. # 124-6]; 26) The City Commissioner of Corrections is the Appointing Authority and as such is solely responsible for initiating disciplinary proceedings against wayward corrections officers. The City limits the City Commissioners authority only insofar as it requires that valid disciplinary proceedings occur within the timeline set out in City Disciplinary Policy, i.e., Regulation # 117 [Doc. # 124-7]. The City Director of Personnel has sole responsibility to ensure the City Commissioners compliance with the City Disciplinary Policy. See Ratification Packet at 1 [Doc. # 113-3]. The Personnel Director repeatedly cited Commissioner Stubblefield for his failure to comply with the City Disciplinary Policy. Id. The net effect of Stubblefields repeated failure has been that numerous corrections officers have not been and cannot be disciplined for the widespread unlawful use of force and/or failure to protect City inmates. See id. at 1-2. Because valid disciplinary measures were within Stubblefields exclusive authority and control, his pattern of failing to do so must be deemed as evidence of tacit authorization, deliberate indifference to, and/or failure to investigate and/or remedy the widespread unlawful use of force and/or failure to protect City inmates;

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27) To further develop the ratification theory, plaintiff issued the following discovery request to Richard Frank, the City Director of Personnel:
RFP 1: Any and all written or electronic communications (non-redacted) authored by you or any Department of Personnel officials since January 2005 and directed to Eugene Stubblefield or any other Division of Corrections official concerning or pertaining to the Division of Corrections failure to comply with Regulation #117 (Disciplinary Policy). *** RFP 2: Any and all written or electronic communications (non-redacted) authored by you or your agents since January 2005 directed to office of the Mayor, President of the Board of Alderman, Public Safety 2 Committee of the Board of Alderman, Public Safety Director, and/or the Civil Service Commission in any way referencing Stubblefields or the Division of Corrections failure to comply with Regulation #117 (Disciplinary Policy). *** RFP 3: Any and all pre-disciplinary hearing notice(s) or pre-termination hearing notification(s) issued by Eugene Stubblefield or any other Division of Corrections official since May 2005, and received by you or any other Department of Personnel official. *** RFP 4: Any and all Change in Employee Status forms (written or electronic) issued by Eugene Stubblefield or any other Divisions of Corrections official since May 2005 and received by you or any other Department of Personnel official. *** RFP 5: A true and accurate copy (written or electronic) of Department of Personnel Regulation # 117 and any amendment, modifications, and/or annotations since May 2005. *** RFP 6: Any and all requests (written, electronic or otherwise) from any Division of Corrections official requesting modification or amendment of Regulation # 117 (Disciplinary Policy) for the Division of Corrections. ***

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RFP 7: A report (written or electronic) of any and all individuals ever assigned to the Division of Corrections since May 2005. The report should include the full name, date of birth, social security number, last known residential address, last known telephone number, and last known personal e-mail address for each individual. Plaintiff hereby agrees to the entry of a protective order barring the contemplated report from being physically shared with Mark R. Perry or any other inmate and/or limiting the dissemination of the report to counsel for plaintiff and paralegal team. ***

RFP 8: A report (written or electronic) listing each and every Division of Corrections official who has been terminated, suspended or reprimanded in accordance with Regulation # 117 since May 2005. The report should list the corresponding reason(s) for each disciplinary action effected in accordance with Regulation # 117. *** RFP 9: A report (written or electronic) listing each and every Division of Corrections official whose proposed termination, suspension or reprimand was reversed since May 2005 by you or any other Department of Personnel official because the Division of Corrections failed to comply with Regulation # 117. *** 28) The Personnel Directors response substantively mirrored that of the Grievance Coordinator and the Public Safety Committee. Compare Personnel Director Response [Doc. # 124-2] with Doc. # 124-1 and 124-3; 29) The Personnel directors Response is not well-taken because (i) he is also the liaison to and the designated record-keeper of the City Civil Service Commission, the Citys quasijudicial forum for City disciplinary proceedings pursuant to Regulation # 117, (ii) he has a duty to record by name and department each City employee, (iii) he maintains those records electronically, and the records are within his exclusive possession and control, 10

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and (iv) he personally authored the requested documents to Stubblefield (and other City officials) regarding the Commissioners repeated failure to discipline corrections officers within the dictate of Regulation # 117. See Ratification Packet at 1 [Doc. # 113-3]; 30) The Citys willful disregard for Rules 34 and 45 is best captured in the Personnel directors Response to the simple request for A true and accurate copy (written or electronic) of Department of Personnel Regulation # 117 and any amendment, modifications, and/or annotations since May 2005: Objection: Overly broad and not reasonably calculated to lead to the

discovery of admissible evidence to the extent that it inquires into a time period beyond that relevant to Plaintiffs Complaint, and not limited in time and/or scope. Work product and attorney-client privilege. See Doc. 124-2 at 3 (RFP 5); 31) To date, the City has failed to even produce a copy of a duly enacted piece of City legislation, which is clearly within the public realm; 32) To permit the City Personnel director to withhold evidence of Stubblefield or other Commissioners failure to discipline corrections officers within the dictates of Regulation # 117 would be to allow the City to unilaterally exclude evidence of tacit authorization, deliberate indifference to, and/or failure to investigate and/or remedy the widespread unlawful use of force and/or failure to protect City inmates; 33) The City may not bury its head in the sand. Nor may the City continue to throw sand in the eyes of this Court by lodging frivolous objections, and withholding further evidence of which plaintiff already has specific samples of a like quality and kind;

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34) Since 2011, the Citys failure to abide by the minimal dictates of Rules 34 and 45 alone has necessitated this motion to compel, and the reasonable attorneys fees incurred in trying to conduct meaningful discovery in a federal civil rights action; For the foregoing reasons, plaintiff prays for an Order against the City of St. Louis (i) compelling it to forthwith accurately and completely answer the discovery requests directed to each the Corrections Grievance Coordinator, Public Safety Committee, and Personnel Director, (ii) directing the City to pay movants reasonable expenses and attorneys fees incurred, and (iii) awarding any other relief this Court deems necessary and appropriate under the circumstances. Respectfully submitted, THE TATE LAW FIRM, LLC /s/ Rufus J. Tate, Jr. ____ Rufus J. Tate, Jr. MO46993 7751 Carondelet, Suite 803 Clayton, MO 63105-3369 314.726.6495 Office 314.726.0424 Fax tatelawfirm@gmail.com Special Appointed Counsel for Plaintiff Certificate of Service I hereby certify that on March 29, 2013, I delivered by CM/ECF and/or fax an exact duplicate of the foregoing Motion to Compel Production of Documents to: Raymond Flojo, Esq. 1200 Market, room 314 St. Louis, MO 63103 314.622.4956 Fax flojor@stlouiscity.com Counsel for City of St. Louis, Missouri, Barry Martin & Dwayne Darden

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