Abdo v. USA

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 22-cv-03110-CNS-NRN
NASER ABDO,
Plaintiff,
v.
UNITED STATES OF AMERICA,
LT. KAMMRAD,
LT. INGRAM,
OFFICER BALSICK,
OFFICER QUEZADA,
BUREAU OF PRISONS, and
OFFICE OF LIEUTENANT OR CAPTAIN,
Defendants.
ORDER ON
PLAINTIFF NASER ABDO’S FIRST MOTION TO COMPEL (ECF NO. 173)1
Entered by Magistrate Judge N. Reid Neureiter
This matter is before the Court on Plaintiff Naser Abdo’s First Motion to Compel,
filed August 15, 2024, ECF No. 173. Defendant United States filed a response on
August 26, 2024, ECF No. 179, and Plaintiff filed a reply on October 15, 2024, ECF No.
1 Rule 72(a) of the Federal Rules of Civil Procedure provides that when a pretrial
matter not dispositive of a party’s claim or defense is referred to a Magistrate Judge to
hear and decide, the Magistrate Judge must issue a written order stating the decision.
Within fourteen (14) days after service of a copy of this Minute Order, any party may
serve and file written objections with the Clerk of the United States District Court for the
District of Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(a). Failure to make any
such objection will result in a waiver of the right to appeal the non-dispositive order. See
Sinclair Wyo. Ref. Co. v. A & B Builders, Ltd. 989 F.3d 747, 782 (10th Cir. 2021) (firm
waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418
F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the
interests of justice require review, such as when a “pro se litigant has not been informed
of the time period for objecting and the consequences of failing to object”).
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205. The Court held a Status Conference addressing the subject motion on November
12, 2024. ECF No. 216.
I. 	Factual Background
Plaintiff is a federal inmate at the United States Penitentiary, Administrative
Maximum Facility in Florence, Colorado (“ADMAX”). He seeks monetary relief from
alleged mistreatment on two separate occasions by prison staff when he was engaged
in a hunger strike in June and July 2021. See generally ECF No. 24 (Second Amended
Complaint).
Certain of Plaintiff’s claims survived Defendants’ motion to dismiss and the case
moved into discovery. The surviving claims are: Claim 1 (battery) and Claim 2
(intentional infliction of emotional distress), which arise from a June 25, 2021 use of
force against Plaintiff after he resisted prison staff during a hunger strike medical exam;
and Claim 14 (battery), which arises from a use of force against Plaintiff at
approximately 6:00 p.m. on July 2, 2021, after he allegedly became combative toward
prison staff who were attempting to transition him from four-point restraints to
ambulatory restraints. See generally ECF No. 115.
Plaintiff asserts that he was on a hunger strike to protest prison conditions.
Because his health was compromised, a “use of force” team was assembled to facilitate
treatment. ECF No. 24 at 10. Plaintiff admits that he refused to be weighed – passively
“sliding [his] legs from the scale.” Id. at 8. Plaintiff says he was in full body restraints at
all times and never attacked or kicked the staff. But, Plaintiff alleges that the staff was
“incensed” by Plaintiff’s refusal of medical care and used cuffs as weapons to cause him
pain, “hog-tied” him, and caused nerve pain that lasted for weeks. Id. Later, on the forty-
second day of his hunger strike, Plaintiff says that he was unnecessarily put in 4-point
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restraints, with each limb chained to bars on the bed. Id. at 11–14. Plaintiff says these
4-point restraints were used to torture him, that he was left in these restraints for seven
to eight hours, and there were no interventions to relieve his pain or respond to his
pleas so as to “teach [him] a lesson.” Id. at 11. Plaintiff says that even after he was
transitioned to ambulatory restraints, staff continued to misapply restraints—intentionally
targeting his injured wrist. Id.
II. 	Plaintiff’s First Motion to Compel
Plaintiff served Defendant with written discovery requests in March 2024. ECF
Nos. 116 (Plaintiffs First Set of Production Requests), 117 (Plaintiff’s First Set of
Interrogatories). He served a second round of interrogatories in May 2024. ECF No.
138. Per Defense counsel, Defendant responded with written responses and produced
over 1,000 pages of documents and several video files. See ECF Nos. 179-1
(Defendant’s Second Supplemental Responses to Plaintiff’s First Set of Production
Requests), 179-2 (Defendant’s First Supplemental Responses to Plaintiff’s First Set of
Interrogatories). Defendant also provided a privilege log. See ECF No. 179-3.
Plaintiff’s First Motion to Compel challenges Defendant’s responses to Requests
for Production (“RFP”) Nos. 3, 4, 6, and 8–14 and Interrogatory Nos. 1–4. See ECF No.
173. Plaintiff argues that Defendant acted improperly in (1) making objections to
discovery requests; (2) withholding privileged documents; (3) objecting to productions
as unduly burdensome; (4) denying Plaintiff access to available documents and
information on the basis of relevance and proportionality; (5) narrowing the scope of its
responses; and (6) failing to provide signature pages for its interrogatory responses.
See id.
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At the November 12, 2024 Status Conference, the Court denied Plaintiff’s First
Motion to Compel with respect to RFPs 6, 8, and 13. See ECF No. 216; see also Status
Conference Recording at 2:55:25–3:02:12 (Nov.12, 2024). The Court further denied
Plaintiff’s request for incident reports written by certain officers pre-2018, which
addressed Plaintiff’s motion with respect to RFPs 4 and 11. See ECF No. 216; see also
Status Conference Recording at 2:50:52–2:54:16.
Accordingly, currently before the Court are the portions of Plaintiff’s First Motion
to Compel addressing RFPs 3, 9, 10, 12, 14 and Interrogatory Nos. 1–4. Additionally,
the Court reconsiders its order on Plaintiff’s Motion to Compel with respect to RFP 8, as
described below.
III. 	Analysis
a. 	RFP 3
In RFP 3, Plaintiff seeks “documents and [electronically stored information
(“ESI”)] considered and/or generated by the [Bureau of Prisons (“BOP”)] in disposing” of
the two administrative tort claims related to this action. ECF No. 116 at 3. Plaintiff asks
that the Court “overrule Defendant’s general and conditional objections for lack of
specificity and failure to produce a privilege log.” ECF No. 173 at 12. He then asks for
production of any withheld responsive documents, including those relating to any
investigative documents, emails (especially those pertaining to the requests for
reconsideration). Id. at 12–13. Plaintiff says that the Defendant is willing to produce only
those documents relating to the initial denial, and not with respect to the appeals. Id.
In response, Defendant asserts that it has “located and produced responsive
documents, including the tort claims, final denials, a request for reconsideration, and a
denial of reconsideration, but informed Plaintiff that it withheld privileged material
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pursuant to its objections.” ECF No. 179 at 3. Defendant asserts that Plaintiff’s First
Motion to Compel should be denied with respect to RFP 3 for three reasons: First, the
only documents that have been withheld are privileged documents; Defendant has
searched for and produced documents relating to his appeals/requests for
reconsideration. Id. at 4. There may be other reconsideration requests that Plaintiff says
that he mailed to BOP, but BOP cannot locate them. Id. Second, the only responsive
documents that Defendant has withheld are privileged documents that fall into one of
two categories: (1) communications and attachments between BOP legal counsel and
BOP staff regarding the investigation of Plaintiff’s claims; and (2) printouts from BOP
legal counsel’s online case management system. Id. at 5. Defendant says that it has
properly logged all withheld documents on its privilege log. Id.; ECF No. 179-3. Third,
Defendant argues that Plaintiff has not shown that the Court may compel production of
any privileged documents merely on the ground that a privilege log was not
contemporaneously produced with its responses. Id. at 7. Here, Defendant argues that it
responded timely to the discovery request noting that a privilege log would later be
produced. Id. And, in fact, Defendant did produce a detailed log of withheld documents.
The Court finds that Defendant has properly responded to RFP 3. To the extent
that responsive, non-privileged documents exist and have been located, they have been
produced. The Court has reviewed Defendant’s privilege log, ECF No. 179-3, and it
provides all the information that is required, in that it allows for assessment as to
whether the withheld documents are privileged by identifying the date, author, recipient,
and general subject matter (or contents) of the document. There is no basis to compel
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any further production in response to this request. Accordingly, Plaintiff’s First Motion to
Compel is DENIED with respect to RFP 3.
b. Interrogatory No. 4
Interrogatory No. 4 asks Defendant to identify whether “there exists any written
guidance or unwritten practice or custom . . . relating to the application of pressure or
force on an inmate’s neck.” ECF No. 117 at 3. In response, Defendant stated objections
(vague, ambiguous, overly broad, unduly burdensome), identified a section of a
program statement containing written guidance on the use of restraints around an
inmate’s neck, and stated that neither the Correctional Services Manual nor the
Correctional Services Procedures Manual contain information responsive to
Interrogatory 4. ECF No. 179-2 at 8–10.
Plaintiff asks the Court to overrule Defendant’s objection as to broadness
“because the conduct of choking is at the heart of [Plaintiff’s] battery claim,” to compel
Defendant to identify (a) “whether less than formal directives exist,” and (b) “the
existence of any [] prohibitive directives as to applying pressure to inmate’s necks.” ECF
No. 173 at 24.
In response, Defendant states that it has not withheld any non-privileged
information responsive to Interrogatory 4, and argues that Plaintiff has not identified any
additional information responsive to Interrogatory 4 that Defendant could produce. ECF
No. 179 at 11, 12. Defendant states that it interviewed BOP staff regarding this topic,
has supplemented its response to reflect those conversations, and that there is no
additional information to add. Id. at 13. Plaintiff has not provided the Court with any
basis to question this representation, and the Court is persuaded by Defendant’s
argument. No additional response from the Defendant will be required.
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c. 	RFPs 5 and 8
Although the Court already issued a ruling on RFP, it reconsiders its ruling to the
extent described below. The Court also considers RFP 5, which is closely related.
In RFP 5, Plaintiff seeks production of “stationary camera footage for C-Unit, C-
Lower, at the ADX for the hours from 4pm through 3pm” on June 25, 2021. ECF No.
116 at 4. In response, Defendant states that it was “informed by BOP staff that,
pursuant to the BOP’s retention policy for stationary camera footage, that camera
footage was not retained and is no longer available.” ECF No. 179-1 at 11.
In RFP 8, Plaintiff seeks documents and ESI about ADX’s stationary camera
systems, including the different types of video preservation, the durations for which
video footage may be preserved or accessed, and the process by which video is
preserved. ECF No. 116 at 4. Rather than providing documents, Defendant provided a
detailed explanation of the process for the preservation of stationary footage:
The BOP retains stationary camera footage captured at the ADX for 30
days. After 30 days, stationary camera footage is no longer routinely
retained because of space and data storage limitations. After the 30-day
retention period, footage is recorded over.
If prison staff receive a request to retain stationary camera footage, and the
standard 30-day retention period has not expired, communications staff will
review the relevant footage and assess whether the stationary footage
supports the retention request. If the stationary footage does not depict
conduct or events supporting the retention request, the footage is not
retained beyond the standard 30-day retention period.
These rules are different from the rules for staff-operated video camera
footage that may be obtained for a calculated use of force, where there is a
delay before the force is to be used. See BOP Program Statement 5566.06,
Use of Force and Application of Restraints 19 (Aug. 29, 2014). “Calculated
uses of force shall be videotaped following the sequential guidelines
presented in the Correctional Services Manual.” Id. The Captain must
maintain footage from staff-operated video cameras used to record a use
of force incident for a minimum of 2.5 years. Id. at 20.
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ECF No. 179-1 at 15–16. Defendant later supplemented its response to RFP 8 as
follows:
If prison staff receive a request to retain stationary camera footage, and the
standard 30-day retention period has not expired, Special Investigative
Services (not communications staff, as stated in the first supplemental
response) will review the relevant stationary camera footage and assess
whether the footage supports the retention request. If the footage does not
depict conduct or events supporting the retention request, the footage is not
retained beyond the standard 30-day retention period.
Id. at 16–17. This appears to be a comprehensive response to RFP 8. It does not
require additional supplementation, except to the extent there is no explanation of why
the stationary camera footage described in RFP 5 was not retained. Accordingly,
Defendant should supplement its response to RFP 8 and provide an explanation as to
why the stationary camera footage described in RFP 5 was not retained.
d. RFPs 9, 10, and 12
In these RFPs, Plaintiff requests documents and ESI not solely related to the
6:00 p.m. use of force on July 2, 2021, but also other events occurring that day,
including Plaintiff’s hunger strike, medical assessments, restraint checks, and any
misconduct by Plaintiff or staff during those events. ECF No. 116 at 5, 6. By example,
RFP 9 states:
Please provide all documents and ESI, except metadata, generated by the
BOP 	related 	to; 	(A) 	plaintiff’s 	hunger 	strike; 	(B) 	plaintiff’s 	medical
assessments; (C) plaintiff’s restraint checks; and (D) any uses of force
executed against plaintiff, where the documents or ESI was generated at
the ADX on 7-2-21 from 5 am thru 8 pm or was generated based on
incidents that occurred within that timeframe.
ECF No. 116 at 5.
Defendant objected to these RFPs in part because the only surviving claim in the
case relating to events of July 2, 2021 is Claim 14 (battery), arising from the use of force
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at 6:00 pm. ECF No. 179-1 at 18, 21, 26. Therefore, in Defendant’s view, the request for
all documents relating to the hunger strike, medical assessment, restraint checks, and
other uses of force is overbroad and calls for the production of documents that are not
relevant. Id.
Notwithstanding this objection and others, Defendant produced numerous
documents in response to these requests, including a Psychology Services Restraint
Review Form; Fifteen Minute Restraints Check Form; Two-Hour Lieutenant Restraints
Check Form; Staff Injury Assessment and Follow up; Daily Assignment Roster; Hunger
Strike Daily Update; Staff Memoranda; SENTRY Inmate Profile; 7/2/21 18:35 BEMR
Clinical Encounter; Behavior Management Plan 48 Hour Restraint Review; and Health
Services Restraint Review Form. ECF No. 179-1 at 19. Defendant has also produced
the handheld camera footage for the use of force at approximately 6:00 p.m. on July 2,
2021. Id. Additionally, various emails related to the use of force were also produced. Id.
at 19–20. Defendant has also produced the Office of Internal Affairs investigation from
the 6:00 p.m. use of force. In Defendant’s view, there are no other responsive, relevant
documents to produce, although Defendant has agreed to re-review video of the two-
hour restraint checks at 8:00 p.m. and 10:00 p.m. on July 2, 2021, to consider them for
production. See ECF No. 179 at 15 n.4.
Defendant does concede that it has withheld from production documents and
emails regarding the use of force the morning of July 2, but it argues this material is not
relevant to the 6:00 p.m. use of force. Id. at 15. This is because to succeed on the
remaining claim of battery, Plaintiff must show that the officers intended to cause
Plaintiff harmful or offensive physical contact and that harmful or offensive physical
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contact did occur. Id. In Defendant’s view, the conduct of officers during a different
interaction with Plaintiff on the same day does not make it more or less likely that
officers involved in the 6:00 p.m. use of force acted with the requisite intent. ECF No.
179 at 15–16.
The Court agrees in part with Defendant’s relevance objections. To the extent
that other officers (different from those who were involved in the 6:00 p.m. use of force)
were involved in prior uses of force, the Court does not find the prior uses of force
relevant to the remaining claim of battery that alleged occurred at 6:00 p.m. However, to
the extent that prior uses of force or interactions with Plaintiff involved the same officers
who are being accused of the 6:00 p.m. incident, the Court finds such documents are
potentially relevant, because documents relating to the prior incidents may shed light on
the subjective intent of the officers who were involved at 6:00 p.m.
Therefore, the Court will GRANT IN PART Plaintiff’s First Motion to Compel with
respect to RFPs 9, 10, and 12, OVERRULE IN PART Defendant’s relevance objection
to these RFPs, and require Defendant to supplement the production in response to
these RFPs with documents or emails relating to uses of force from earlier in the day
only to the extent that those uses of force involved the same officers who were involved
in the July 2, 2021 6:00 p.m. use of force. If the various incidents involved different
officers from those who were involved at 6:00 p.m., no supplementation will be required.
In addition, with respect to RFP 9, Plaintiff requests a “narrative account of what
happened to the footage from the two [stationary] cell cameras.” ECF No. 173 at 17.
The Court concurs that Plaintiff is entitled to an explanation of why footage from the cell
cameras is not available and has not been produced. Therefore, Defendant will be
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required to supplement this response with such an explanation. The explanation may be
as simple as the fact that there was no timely request for preservation of that camera
footage and it was destroyed or over-written based on the normal protocols. But Plaintiff
is entitled to some explanation.
e. 	RFP 14 and Interrogatories 1–3
As for RFP 14, Defendant has requested that the BOP search for requested
records, and the Defendant has agreed to supplement the response to RFP 14 as
appropriate. Regarding Interrogatories 1–3, Plaintiff argues that the signature pages for
Defendant’s interrogatory responses do not state the signatories provided their answers
under penalty of perjury. In response, Defendant stated that it would provide corrected
signature pages. Therefore, no ruling is required on these issues at this time.
IV. 	Conclusion
For the foregoing reasons, Plaintiff’s First Motion to Compel (ECF No. 173) is
DENIED IN PART and GRANTED IN PART, as described above. Defendant shall
supplement its response to RFP 8 and provide an explanation as to why the stationary
camera footage described in RFP 5 was not retained. Defendant shall be required to
produce documents and emails relating to the uses of force and other events on July 2,
2021 besides the 6:00 p.m. use of force, only to the extent that these events involved
the same officers who were involved in the 6:00 p.m. use of force. Plaintiff’s motion is
otherwise denied.
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Dated at Denver, Colorado this 10th day of February, 2025
_______________________
N. Reid Neureiter
United States Magistrate Judge
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