Berry, Jr. v. Orr et al

Filing 42

ORDER : The 31 Motion to Compel is GRANTED IN PART, as follows: (1) within 14 days from the date of this Order defendant Orr shall produce (a) a photo of a cannister of the type of chemical agent administered on the date in question, (b) a copy of any instructions pertaining to said chemical agent, and (c) any excerpts in the LSP Employee Manual pertaining to the documentation required in unit logbooks. Plaintiffs Motion to Correct an Error 39 is GRANTED. Signed by Magistrate Judge Richard L. Bourgeois, Jr on 05/10/2022. (ELW)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
WILLIE E. BERRY, JR. (#354431)

CIVIL ACTION

VERSUS
21-27-JWD-RLB
JOHN ORR, ET AL.
ORDER
Before the Court is plaintiff’s Motion to Compel (R. Doc. 31). Also before the Court is
plaintiff’s Motion to Correct Error (R. Doc. 39). The Motion to Compel is opposed. See R. Doc.
36. The plaintiff seeks for the requests for admissions propounded to defendant Tucker to be
deemed admitted, and to compel the defendants to produce the following: (1) appropriate
responses to interrogatories addressed to defendant Tucker; (2) an exact number of Rule 21
infractions for which the plaintiff has been accused of from January 2016 through January 2021;
(3) Main Prison/CBD shower roster for February 27, 2020; (4) Time-Clock cards from all four
tiers; (5) a photo of the kind of gas canister the plaintiff has been sprayed with and any
instructions regarding the maximum amount to be dispensed; (6) LSP employee manual
pertaining to documentation of uses of force; (7) Copies of LSP’s ATU and EMT employee
assignment/roster for February 27, 2020; (8) a picture of LSP Main Prison/CBD lower right tier
as viewed from the desk and vice versa; and (9) appropriate responses to
Admissions/Interrogatories by defendants Orr and Jones.
On or about October 1, 2021, the plaintiff propounded discovery requests to each of the
defendants. See R. Docs. 16-20. At various times in November of 2021, the defendants
responded to the plaintiff’s discovery requests. See R. Docs. 23, and 25-29. The plaintiff filed the
instant Motion to Compel on December 15, 2021. Supplemental responses were then filed by the

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defendants. See R. Docs. 32-35, and 39. On January 5, 2022, the plaintiff filed a Supplement to
Motion to Compel wherein he acknowledged that three requests referenced in the instant Motion
have been satisfied. A Motion to Correct Error was subsequently filed by the plaintiff to correct a
mistake in identifying one of the three requests that has been satisfied. See R. Doc. 39.
The plaintiff’s Motion to Correct Error will be granted. The plaintiff’s Motion to Compel
will be granted, in part, as set forth below.
Admissions propounded to defendant Tucker
With regards to the admissions propounded to defendant Tucker the plaintiff’s Motion,
seeking to have the admissions deemed admitted, is moot. Defendant Tucker’s Motion to
Withdraw Deemed Admissions (R. Doc. 23) has been granted by separate order.
Appropriate responses to interrogatories addressed to defendant Tucker
On November 16, 2021, defendant Tucker responded to the interrogatories propounded to
her by the plaintiff. See R. Doc. 25. The plaintiff’s instant Motion lacks any detail or specificity
as to how defendant Tucker’s responses are not appropriate. Moreover, a review of defendant
Tucker’s Answers to Interrogatories reveals that the objections and responses were made in good
faith, and the Court does not note any obvious reason for defendant Tucker to amend her
responses.
Number of Rule 21 Infractions from January 2016 through January 2021
With regards to this request defendant Jones objected on the grounds that the request was
unduly burdensome, seeks irrelevant information, and was more appropriately suited for an
interrogatory rather than a request for production. Without waiving the objections, defendant
Jones stated that the plaintiff has had more than 100 disciplinary reports filed against him for
sexual offenses against female individuals. See R. Doc. 26. Defendant Jones later produced a

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copy of the plaintiff’s Conduct Report from which the plaintiff could ascertain the exact number
of Rule 21 infractions for the dates requested. See R. Doc. 33-2. As such, defendant Jones has
adequately responded to this discovery request, and the plaintiff acknowledges the same. See R.
Doc. 37.
Main Prison/CBD shower roster for February 27, 2020
This document was produced by defendant Orr on December 16, 2021, and plaintiff
acknowledges receipt of the same and that the document produced satisfies his request. See R.
Doc. 34-1 and 37.
Time-Clock cards from all four tiers
Defendant Orr produced a copy of the Main Prison Cellblocks B-Team Post Roster which
contains relevant information that should satisfy the plaintiff’s request. See R. Doc. 27-1.
Photo of gas canister and copy of instructions
In discovery propounded to defendant Orr, the plaintiff request, “Photocopy of “small
fire-extinguisher--------looking” gas-canister, with instructions: detailing the maximum amount
(in grams) advised/permitted to be used on an individual.” Defendant Orr responded, “Defendant
does not know what “________ looking” means. Further objecting, this interrogatory attempts to
expand the policies instituted by LSP. This Request for Production seeks to expand the use of
force policy that is in place. Further responding, Defendant contends the use of force can be
found in the attached Exhibit 2 and 3.” See R. Doc. 27.
Defendant Orr’s objections to this request seem deliberately obtuse. The plaintiff is
clearly requesting a photo of a canister of the same type of chemical agent administered on the
date in question and a copy of the instructions for said chemical agent. As such, defendant Orr
will be ordered to provide the requested photo and a copy of the requested instructions.

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LSP employee manual pertaining to documentation of uses of force
In this request propounded to defendant Orr, the plaintiff requested a copy of LSP’s
employee manual pertaining to what documentation is required within a LSP unit’s logbook.
Defendant objected to request on the grounds that the employee manual would contain
information that is not relevant and goes beyond the plaintiff’s Request for Production. While
that may be true, defendant Orr can provide the plaintiff with any excerpts from the LSP
Employee Manual pertaining to documentation required in unit logbooks, if such information is
found in the LSP Employee Manual. As such, defendant Orr will be ordered to produce any
excerpts in the LSP Employee Manual pertaining to the documentation required in unit logbooks
or state that such information is not included within the employee manual after a review of the
same.
Copies of LSP’s ATU and EMT employee assignment/roster
for February 27, 2020
In response to this request defendant Tucker produced a redacted document titled, “Shift
Report.” See R. Doc. 35-1. Plaintiff acknowledged receipt of the same and that the document
produced satisfies his request. See R. Doc. 39-1.
A picture of LSP Main Prison/CBD lower right tier
as viewed from the desk and vice versa
In response to this request, defendant Tucker stated that she does not possess any
responsive documents to this request. It appears that plaintiff may be asking for specific
photographs to be taken and then provided to plaintiff. Defendant Tucker is not obligated to
create such photographs in response to the plaintiff's production 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

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documents, as opposed to produce already existing documents”); Harris v. Advance Am. Cash
Advance Ctrs., 288 F.R.D. 170, 172 (S.D. Ohio 2012) (“Defendant is not required to create
documents in response to plaintiff's requests for discovery.”). Additionally, the Court is
cognizant that an inmate’s possession of photographs of the layout and view of certain areas of
the prison may jeopardize the safety and security of the facility.
Appropriate responses to Admissions/Interrogatories
by defendants Orr and Jones
No admissions or interrogatories propounded to defendant Orr or defendant Jones could
be located in the record. To the extent the plaintiff is referring to the defendants’ responses to
requests for production, said responses have already been addressed herein.
Accordingly,
IT IS ORDERED that the plaintiff’s Motion to Correct an Error (R. Doc. 39) is
GRANTED.
IT IS FURTHER ORDERED that the plaintiff’s Motion to Compel (R. Doc. 31) is
GRANTED IN PART, as follows: (1) within 14 days from the date of this Order defendant Orr
shall produce (a) a photo of a cannister of the type of chemical agent administered on the date in
question, (b) a copy of any instructions pertaining to said chemical agent, and (c) any excerpts in
the LSP Employee Manual pertaining to the documentation required in unit logbooks.
IT IS FURTHER ORDERED that, in all other regards, the plaintiff’s Motion (R. Doc.
31) is DENIED.
Signed in Baton Rouge, Louisiana, on May 10, 2022.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE