Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. This matter is before the court on plaintiff's motion to compel discovery.
In his motion, plaintiff argues that defendant Clark has refused to allow him to view a surveillance tape of the January 19, 2007 riot at CSP-Solano. Plaintiff also argues that defendant Clark has failed to produce responses to plaintiff's requests for admission. (Pl.'s Mot. to Compel at 1-2.)
In opposition to plaintiff's motion to compel, counsel on behalf of defendant Clark argues that plaintiff viewed the only surveillance tape taken of the January 19, 2007 riot on November 6, 2008. He also argues that he served plaintiff with responses to his requests for admission on September 9, 2008. Defense counsel has attached to the opposition a declaration by counsel stating as much, together with a copy of defendant's responses to plaintiff's requests for admission. (Def.'s Opp'n to Pl.'s Mot. to Compel at 1-2; O'Brien Decl. at 1-2; Exs. A & B.)
In reply, plaintiff argues that prison officials showed him the wrong surveillance tape. According to plaintiff, the video he saw was taken in front of the H-Dorm Facility I, but the incident he complains of in this action took place in front of the H-Dorm Facility II. Prison officials have informed him that the video he saw is the only footage taken of the January 19, 2007 incident. However, plaintiff insists that there is additional footage. Plaintiff has attached to his reply a hand-written diagram of the prison, as well as incident reports by defendant Clark and Officer Griggs, which he believes prove that there is additional footage of the January 19, 2007 riot. (Pl.'s Reply at 1-3 & Exs. A-C.)
The court will deny plaintiff's motion to compel. First, it appears that plaintiff has already seen all of the video footage taken of the January 19, 2007 incident. Although plaintiff insists that there is additional film footage, plaintiff has made no such showing to the court. Specifically, plaintiff has submitted Officer Griggs' incident report in which Griggs wrote that he observed the January 19, 2007 riot via the Boesh surveillance camera. However, plaintiff has not demonstrated that the surveillance footage mentioned in the report, regardless of its content, still exists and is available for viewing. This court cannot compel the defendant to produce documents or things that do not exist or are not in his possession or control. See Fed. R. Civ. P. 34(a)(1). See also United States v. Int'l Union of Petroleum & Indus. Workers, 870 F.2d 1450, 1452 (9th Cir. 1989) (a party seeking production of documents bears the burden of showing the opposing party has control over them). Moreover, even assuming for the sake of argument that the surveillance footage mentioned in Officer Griggs' report exists, plaintiff has not demonstrated that it is different from the surveillance footage he has already viewed or that the surveillance footage is taken of the front of the H-Dorm Facility II as plaintiff surmises. Accordingly, the court will not order defendant Clark to produce any further response.
In addition, plaintiff's argument that defendant Clark has not responded to his requests for admission has been rendered moot. Defendant Clark has attached to his opposition to plaintiff's motion to compel a copy of his responses to plaintiff's requests for admission. The responses were timely served, and to the extent that plaintiff did not receive them when defendant Clark initially sent them, plaintiff received them with defendant Clark's opposition to his motion to compel. Accordingly, the court will not order defendant Clark to produce any further response.
In accordance with the above, IT IS HEREBY ORDERED that plaintiff's January 6, 2009 motion to compel (Doc. No. 26) is denied.
© 1992-2009 VersusLaw ...