Paez v. Nutsch

Filing 36

MEMORANDUM AND ORDER - that Plaintiff's motion to compel discovery (Filing 35 ) is denied. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(LKO)

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4:20-cv-03108-RGK-PRSE Doc # 36 Filed: 01/10/22 Page 1 of 1 - Page ID # 121 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA BENJAMIN PAEZ, 4:20CV3108 Plaintiff, MEMORANDUM AND ORDER vs. M. J. NUTSCH, NSP Troop E. Badge # 321, Defendant. Plaintiff has filed a motion to compel Defendant to subpoena evidence from the Nebraska State Patrol. (Filing 35.) The motion will be denied. Defendant has no obligation to undertake discovery on Plaintiff’s behalf.1 IT IS THERFORE ORDERED that Plaintiff’s motion to compel discovery (Filing 35) is denied. Dated this 10th day of January 2022. BY THE COURT: Richard G. Kopf Senior United States District Judge 1 Plaintiff states Defendant must prove that Plaintiff’s allegations are untrue. This is incorrect. As the court has previously explained, “a plaintiff has the burden of proof in a § 1983 action claiming a Fourth Amendment violation for a warrantless search.” Paez v. Nutsch, No. 4:20CV3108, 2021 WL 2652456, at *3 (D. Neb. June 28, 2021) (citing Der v. Connolly, 666 F.3d 1120, 1127 (8th Cir. 2012)). Defendant has the burden of producing evidence that an exception to the warrant requirement applies, see id., but this burden of production does not mean that Defendant must obtain evidence for Plaintiff.

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