Barnett v. Norman, et al.

Filing 135

ORDER DENYING 129 Motion to Compel, signed by Magistrate Judge Gerald B. Cohn on 04/13/2012. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TROAS V. BARNETT,

CASE NO. 1:05-cv-01022-GBC (PC)

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Plaintiff,

ORDER DENYING PLAINTIFF’S MOTION
TO COMPEL

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v.
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Doc. 129
DAVID NORMAN, et al.,

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Defendants.
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/

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On August 9, 2005, Plaintiff, a state prisoner proceeding pro se and in forma pauperis, filed

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this civil rights action pursuant to 42 U.S.C. § 1983. Doc. 1. On March 17, 2010, the Court found

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a cognizable Eighth Amendment claim for excessive force. Doc. 48. On February 10, 2012, Plaintiff

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filed a motion to compel. Doc. 129. On February 27, 2012, Defendants filed an opposition to

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Plaintiff’s motion to compel. Doc. 132. On March 15, 2012, Plaintiff filed a reply. Docs. 133, 134.

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In Plaintiff’s motion, Plaintiff states Defendants failed to provide records of complaints of

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excessive force against Defendants for five years prior to November 4, 2003, the date of the alleged

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incident in this case. Mot. Compel at 9, Doc. 129.

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Under Rule 26 of the Federal Rules of Civil Procedure, “[p]arties may obtain discovery

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regarding any non-privileged matter that is relevant to any party's claim or defense.” Fed. R. Civ. P.

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26(b). Under Rule 37 of the Federal Rules of Civil Procedure, the court may order a party to provide

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further responses to “an evasive or incomplete disclosure, answer, or response.” See Fed. R. Civ. P.

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37(a)(3).
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In response to Plaintiff’s motion to compel, defense counsel submitted a declaration stating

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that after receiving Plaintiff’s discovery request, counsel contacted litigation coordinators at

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California State Prison, Corcoran and California Substance Abuse Treatment Facility and State

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Prison at Corcoran. Defs. Opp’n, Jeffery Decl., Doc. 132. Litigation coordinators advised defense

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counsel that there are no complaints of excessive force against Defendants for five years prior to

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November 4, 2003. See id.

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In responding to Plaintiff's discovery requests, Defendants are required to make a reasonable

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inquiry and their signed discovery responses certify that they have done so. Fed. R. Civ. P. 26(g)(1).

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Defendants made an inquiry and notified Plaintiff that there are no documents responsive to his

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request. Therefore, this court cannot compel Defendants to produce documents that do not exist or

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are not in their possession or control. See Fed. R. Civ. P. 34(a)(1). See also United States v. Int’l

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Union of Petroleum & Indus. Workers, 870 F.2d 1450, 1452 (9th Cir. 1989) (a party seeking

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production of documents bears the burden of showing the opposing party has control over them).

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Accordingly, Plaintiff’s motion to compel is HEREBY DENIED.

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IT IS SO ORDERED.

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Dated:
7j8cce

April 13, 2012
UNITED STATES MAGISTRATE JUDGE

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