Owens v. Degazio

          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 ...