Evins v. Adams et al

Filing 41

ORDER denying 38 Motion to Compel. Signed by Honorable Barry A. Bryant on April 25, 2019. (mll)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
HERMAN DAVID EVINS
v.

PLAINTIFF
Civil No. 4:18-cv-4095

CAPTAIN ADAMS, Miller County
Detention Center (“MCDC”); MRS.
WATSON, MCDC; and CORRECTION
OFFICER BROWN, MCDC

DEFENDANTS
ORDER

Plaintiff Herman David Evins proceeds in this action pro se and in forma pauperis pursuant
to 42 U.S.C. § 1983. Currently before the Court is Plaintiff’s Motion to Compel. (ECF No. 38).
Defendants have filed a Response in opposition to the motion. (ECF No. 40).
On November 7, 2018, this Court entered an Initial Scheduling Order which set the deadline
to complete discovery for March 7, 2019. (ECF No. 24). On February 1, 2019, Plaintiff filed his
first Motion to Compel seeking a grievance and video footage. (ECF No. 27). The Court denied
Plaintiff’s motion because he had not attempted to confer with Defendants prior to filing his motion.
(ECF No. 28). In accordance with the Initial Scheduling Order, Defendants filed a Motion to
Summary Judgment on March 14, 2019. (ECF No. 29). Plaintiff filed a response to the motion on
April 15, 2019. (ECF No. 39).
On April 10, 2019, Plaintiff filed the instant Motion to Compel stating:
…I have asked for all of my 2018 requests and Grievances from Miller County
Detention Center and have received only the ones that had nothing to do with this
case. I also would like to receive the evidence I asked for on June 6, 2018 which I
was denied by Cpt. Adams. (see attached request reference #3,016,638)…

1 

(ECF No. 38). Defendants responded to the motion stating they provided copies of Plaintiff’s
grievances with their Notice of Disclosures on December 11, 2018 and were unaware of any
relevant video or photographs. (ECF No. 40). They also represent that any video that did exist was
not preserved and was overwritten in the normal course of the operation of the system at the Miller
County Detention Center prior to Plaintiff’s first request for the video. Id.
Rule 34 provides for the production documents and things within “the responding party’s
possession, custody or control.” Fed.R.Civ.P. 34 (a)(1). Defendants cannot produce video they do
not have in their possession or control. Further, Defendants cannot produce what does not exist.
In addition, the Court notes Plaintiff’s Motion to Compel was filed more than a month after the
discovery cut-off date of March 7, 2019 and Defendants state they have provided Plaintiff with
copies of his grievances.
Accordingly, Plaintiff’s Motion to Compel (ECF No. 38) is DENIED.
IT IS SO ORDERED this 25th day of April 2019.

Barry A. Bryant

/s/
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE

2