United States District Court, E.D. California
ORDER
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE
Plaintiff
is a state prisoner, proceeding without counsel, with a civil
rights action pursuant to 42 U.S.C. § 1983. On October
7, 2019, the undersigned granted plaintiff thirty days to
file an amended motion to compel regarding his request for
inspection of things and request for production of documents
addressed in his July 16, 2018 motion to compel. (ECF No.
134.) Pending before the court is plaintiff's amended
motion to compel regarding his request for inspection of
things and request for production of documents. (ECF No.
137.)
Background
This
action proceeds on the original complaint against defendants
Bettencourt, Blessing, Brady, Burke, Defazio, Drake,
Eldridge, Guffee, Lebeck, Martnicek, Martinez, Matthews,
Mercado, Murillo, Okoroike, Rashev and Schultz.[1]
The
gravamen of this action is plaintiff's claim that on
February 18, 2015, several defendants used excessive force
against him. The pending motion to compel seeks documents and
evidence related to those alleged incidents of excessive
force.
Request
for Production of Things
Request
No. 1
In
request no. 1, plaintiff asks defendants to produce
photographs of the “personal bike glove” worn by
defendants DeFazio, Blessing, Brady, Lebeck, Burk,
Bettencourt and Rashev. (ECF No. 137 at 10.)
Defendants
opposed request no. 1 on the grounds that it was
unintelligible and vague as to the term “personal bike
glove.” (ECF No. 143 at 3.) In the opposition to the
motion to compel, defendants state that they do not wear
“bike gloves” as part of their required uniforms.
(Id. at 4.) Defendants also argue that plaintiff is
requesting that defendants create a document that does not
exist, in this case a photograph, in response to his request.
(Id.) Defendants argue that they are not required to
create documents or photographs in response to discovery
requests. (Id.)
Parties
have an “obligation to construe … discovery
requests in a reasonable manner.” Cache LaPoudre
Feeds, LLC v. Land O'Lakes, Inc., 244 F.R.D. 614,
618 (D. Colo. 2007); see also King-Hardy v. Bloomfield
Board of Education, 2002 WL 32506294 at *5 (D. Conn.
2002) (responding party must give discovery requests a
reasonable construction, rather than strain to find
ambiguity); McCoo v. Denny's Inc., 192 F.R.D.
675, 694 (D. Kan. 2000) (“A party responding to
discovery requests should exercise reason and common sense to
attribute ordinary definitions to terms and phrases utilized
…”) (internal quotation marks omitted).
A party
is not obligated to create documents that do not exist in
response to a discovery request. See Goolsby v.
Carrasco, 2011 WL 2636099 at *8-9 (E.D. Cal. July 5,
2011) (denying plaintiff's motion to compel production of
documents where plaintiff's request required defendant to
“create documents, as opposed to produce already
existing document.”)
In
request no. 1, while plaintiff describes the gloves allegedly
worn by defendants as “bike gloves, ” plaintiff
clearly seeks photographs of the gloves allegedly worn by
defendants on February 18, 2015 when they allegedly used
excessive force against plaintiff. It is not clear whether
defendants are claiming no photographs of “bike
gloves” exist or whether defendants are claiming that
no photographs of any gloves worn by defendants on February
18, 2015 exist. Accordingly, within fourteen days of the date
of this order, defendants shall file an amended response to
request no. 1. If no photographs of the gloves allegedly worn
by defendants on February 18, 2015 exist, then the
undersigned will not order a further response to request no.
1.
Request
No. 2
In
request no. 2, plaintiff asks defendants for photographs of
the work boots worn by defendants DeFazio and Blessing. (ECF
No. 137 at 10.)
Without
waiving objection, defendants responded that no photographs
exist of defendants DeFazio and Blessing's work boots
worn at the time of the February 18, 2015 incident. (ECF No.
143 at 4.)
The
photographs plaintiff seeks in request no. 2 do not exist.
Accordingly, plaintiff's motion to compel as to request
no. 2 is denied. See Goolsby v. Carrasco, 2011 WL
2636099 at *8-9 (E.D. Cal. July 5, 2011).
Request
No. 5
In
request no. 5, plaintiff asks defendants for photographs of
the tower booth taken in front of cell 232 facing the tower
booth. (ECF No. 137 at 11.)
Defendants
responded that no photographs exist of the tower booth taken
in front of cell 232 facing the tower booth. (ECF No. 143 at
5.)
The
photograph plaintiff seeks in request no. 5 does not exist.
Accordingly, plaintiff's motion to compel as to request
no. 5 is denied. See Goolsby v. Carrasco, 2011 WL
2636099 at *8-9 (E.D. Cal. July 5, 2011).
Request
no. 7
In
request no. 7, plaintiff asks defendants for photographs of
each correctional officer defendant who was named as a
participant in the February 18, 2015 beating. (ECF No. 137 at
11.) Plaintiff requests a “close up” photograph,
showing just the defendant's face. (Id.)
Plaintiff requests another photograph from about six feet
away showing the complete body structure, from the face to
the feet. (Id.)
Without
waiving objection, defendants responded that the photographs
sought in request ...