Bruesch v. Flanagan et al

Filing 81

ORDER by Magistrate Judge Charles S. Miller, Jr. denying 77 Motion for Discovery. (BG) Distributed on 6/3/2013 (jt).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHWESTERN DIVISION
Nicholas Dodge Bruesch,

Plaintiff,
vs.
Todd Flanagan, et. al.,
Defendants.

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ORDER

Case No. 1:12-cv-083

According to defendants, plaintiff served Defendant Todd Flanagan with a request for
production of “[a]ll recorded video from the A.S. segregation security cameras in conjunction (sic)
with the May 30th 2012 incident mentioned in Complaint.” (Docket No. 78). Defendant Flanagan
responded: “The requested video does not exist.” (Id.).
Dissatisfied with Defendant Flanagan’s response, plaintiff filed motion on May 20, 2013,
to compel production of any video recordings of the May 30, 2012, incident.
Defendants filed a response to the motion on May 21, 2013. They question whether the
incident at issue was ever recorded and further aver that, if by chance the incident had been captured
by a video camera, it has been taped over. Specifically, they aver:
The undersigned counsel, on behalf of Defendants, checked with the North
Dakota Department of Corrections (DOCR) to see if the requested video existed.
Deputy Warden Patrick Branson and Chief of Security Corky Stromme informed the
undersigned counsel that the requested video did not exist.
Deputy Warden Branson explained DOCR videos incidents involving cell
extraction teams. The May 30, 2012 incident that is the subject of Bruesch’s
Amended Complaint did not involve a cell extraction team. The incident occurred
while Bruesch was being escorted back to his cell.
Deputy Warden Branson further explained there are cameras on the
Administrative Segregation tier. At the time of the incident that is the subject of the
Complaint, the footage from the tier cameras was only archived for up to seven days.
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If the incident was captured on a tier camera, the footage would have been taped over
within seven days unless someone burned the footage to a compact disc. Deputy
Warden Branson checked and there is no record of the footage being burned to a
compact disc. If requested by the Court, Deputy Warden Branson will submit an
affidavit regarding the requested video not existing or appear at a hearing to make
an evidentiary record regarding that fact.
(Docket No. 78).
Plaintiff's disappointment with the Defendant's response does not enable this court to order
defendants to produce video recordings that do not exist. Plaintiff’s motion (Docket No. 77) is
therefore DENIED.
IT IS SO ORDERED.
Dated this 3rd day of June, 2013.

/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court

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