Gessner v. Howard et al

Filing 29

DECISION AND ENTRY - Accordingly, Plaintiff's Motion to Compel (Doc. 22 ) is DENIED. Signed by Magistrate Judge Sharon L Ovington on 2/15/13. (kje1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
MARK E. GESSNER,

:

Plaintiff,

:

Case No. 3:11cv00286

:

District Judge Thomas M. Rose
Chief Magistrate Judge Sharon L. Ovington

vs.
JOHN S. HOWARD, et al.,
Defendants.

:
:

DECISION AND ENTRY

I.

Introduction
Plaintiff Mark E. Gessner, a resident of Dayton, Ohio, brings this case pro se under

42 U.S.C. §1983. He alleges that he was on his front porch on August 12, 2009 until police
officers pulled him away from his front door and arrested him. He further alleges that the
officers forced him to lie face down onto his front lawn, held him by his neck, and beat him
in the back of his head with their bare knuckles. He was later charged with three state
criminal violations and a violation of a local ordinance.
Gessner claims that the police officers arrested him without probable cause and used
excessive force to effect his arrest in violation of his rights under the United States
Constitution and the Ohio Constitution. Defendants are five police officers employed by the
City of Dayton, Ohio as well as the City of Dayton.

The case is presently before the Court upon Gessner’s Motion to Compel (Doc. #22),
Defendants’ Response in Opposition (Doc. #23), Gessner’s Reply to Defendants’ Response
to Motion (Doc. #24), and the record as a whole.
II.

Discussion
Gessner seeks an Order compelling Defendants to produce and provide electronically

stored information in the their control, usage, and possession. He explains that the specific
document or record he asks for “is a picture of the Plaintiff’s mug shot with text printed on
it. The electronically stored document is discoverable.” (Doc. #22, PageID at 221). He
further states that he saw this mug shot with text stating, “Be aware hates all police officers.”
(Doc. #24, PageID at 128). He saw this on May 14, 2004 when he was stopped and ordered
to sit in the back of a police car for a minor traffic infraction. He explains that the mug shot
and text appeared on the onboard police squad car computer terminal or “KDT.” Id.
Defendants’ counsel responds, “Defendants have conferred with their Information
Technology Department and confirmed that the Dayton Police Cruiser KTDs did not have
such a capability in 2004 and that the specific requested document does not exist.” (Doc.
#23, PageID at 125).
Gessner contends that production of the mugshot at issue is warranted under Fed. R.
Civ. P. 26(a)(1)(A), which states, “[e]xcept as exempted by Rule 26(a)(1)(B) or as otherwise
stipulated or ordered by the court, a party must, without awaiting a discovery request,
provide to the other parties: ... (ii) a copy – or a description by category and location – of all
documents, electronically stored information, and tangible things that the disclosing party
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has in its possession, custody, or control and may use to support its claims or defenses,
unless the use would be solely for impeachment[.]” This Rule’s plain meaning places the
duty on a party to disclose documents: (1) “that the disclosing party has in its possession,
custody, or control”; and (2) that the disclosing party “may use to support its claims or
defenses, unless the use would be solely for impeachment....” Additionally, Rule 26(b)(1)
generally permits discovery of “nonprivileged matter that is relevant to any parties’ claim or
defense ....”
Gessner contends that the mugshot in question is discoverable and that the
Defendants had it in their possession or control on the night of May 14, 2004 and should
have had possession or control of it on the night of his arrest on August 12, 2009 as well.
However, the pertinent inquiry is not whether Defendants were in the possession, custody, or
control of the mugshot or whether they should have had possession, custody, or control of it
on the date of the incident. Plaintiff is entitled to an Order compelling disclosure of the
mugshot only if it is, in fact, in Defendants’ present possession, custody, or control of the
document. “[C]ourts have recognized that documents that do not exist are not in the
‘possession, custody, or control’ of a party.” Nance v. Wayne County, 264 F.R.D. 331, 338
(M.D. Tenn. 2009)(interpreting decision of Dunn v. TWA, Inc., 589 F.2d 408, 415 (9th Cir.
1978); Steil v. Humana Kansas City, Inc., 197 F.R.D. 445, 448 (D. Kan. 2000)). Even
“documents that are lost or missing are no more in the ‘possession, custody, or control’ of a
party than are documents that are nonexistent.” Id. “The Court cannot compel defendant to
produce what does not exist.” Judy v. Pingue, 2009 WL 2365440 at *1 (S.D. Ohio 2009)
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(Abel, M.J.). Because Defendants have confirmed with their Information Technology
Department that the mugshot Gessner seeks is not in their possession, and because no other
circumstance indicates that the mugshot is otherwise still in existence, Gessner is not entitled
to an Order compelling its disclosure.
Accordingly, Plaintiff’s Motion to Compel (Doc. #22) is DENIED.

February 15, 2013
s/Sharon L. Ovington
Sharon L. Ovington
Chief United States Magistrate Judge

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