GODFREY v. ADAMO et al
Filing
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ORDER denying 24 Motion to Compel Discovery; denying 25 Motion to Compel Discovery for the reasons set forth more fully in the Order itself. Signed by Magistrate Judge Maureen P. Kelly on 12/19/2013. [A copy of this Order was mailed to Plaintiff on this date at his adress of record]. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
PERCY L. GODFREY, JR.,
)
)
)
vs.
)
)
)
OFFICER MARC ANTHONY ADAMO, )
party/agency of Mercer County,
)
Pennsylvania in his official and individual )
Capacity; CORPORAL MARK JOHNSON, )
party/agency of Mercer County,
)
Pennsylvania in his official and individual )
Capacity; THE CITY OF SHARON
)
PENNSYLVANIA POLICE
)
DEPARTMENT,
)
Defendants. )
Plaintiff,
Civil Action No. 13-719
Judge Terrence F. McVerry/
Magistrate Judge Maureen P. Kelly
Re: ECF Nos. 24, 25
ORDER
Plaintiff Percy L. Godfrey, Jr. (“Plaintiff”), an inmate at the State Correctional Institution
at Mercer, has brought this civil rights action against Defendants Officer Marc Anthony Adamo,
Corporal Mark Johnson and the City of Sharon Pennsylvania Police Department, alleging that
Defendant Adamo choked Plaintiff until he was unconscious while he was handcuffed behind his
back in a police vehicle and that Defendant Johnson stood by and watched without intervening.
Plaintiff alleges that Defendants subsequently falsely charged Plaintiff with aggravated assault in
order to cover up the incident thereby violating Plaintiff’s constitutional rights provided by the
Fourth, Eighth and Fourteenth Amendments to the United States Constitution.
On November 21, 2013, Plaintiff filed a “Motion for Discovery/Production of
Documents,” ECF No. 23, in which he asked the Court to order Defendants to provide him with
certain documents including the trial transcript of his criminal trial in Mercer County and
disciplinary reports of Defendant Adamo’s work performance from Lawrence County Police
Department and Sharon Police Department. On November 22, 1013, this Court issued a Text
Order granting Plaintiff’s Motion and directing Defendants to fully respond or object to
Plaintiff’s discovery requests by December 2, 2013.
On December 6, 2013, Plaintiff filed a “Motion for Order Mandating the Clerk of Court,
and or Court Stenographer of Mercer County, PA to Furnish the Plaintiff with a Copy of the
Criminal Trial Transcript, Case No. 1221-2012 to be Used in Civil Matter.” ECF No. 24. On
December 10, 2103, the Court directed Defendants to respond to the Motion regarding Plaintiff’s
criminal trial transcript by December 17, 2013. 12/10/13 Text Order.
On December 12, 2013, Plaintiff filed a “Motion for an Order Compelling Disclosure or
Discovery Documents,” ECF No. 25, in which Plaintiff asks the Court to compel Defendants to
produce the disciplinary reports of Defendant Adamo from the Lawrence County and Sharon
Police Departments.
On December 17, 2013, in an apparent effort to comply with this Court’s 11/22/2013
Text Order, Defendants filed a “Reply of Defendants Marc Anthony Adamo, Corporal Mark
Johnson and the City of Sharon Police Department to Plaintiff’s Motion to Compel.” ECF No.
26. Defendants’ response, however, does not address Plaintiff’s first Motion to Compel as was
ordered but rather speaks only to Plaintiff’s later Motion in which he asks for Defendant
Adamo’s disciplinary records. Id. This notwithstanding, it appears that Defendants’ response is
applicable to both motions.
The scope of discovery is defined by Rule 26(b)(1) of the Federal Rules of Civil
Procedure, which provides as follows:
(1) Scope in General. Unless otherwise limited by court order, the scope of
discovery is as follows: Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense—including the existence,
description, nature, custody, condition, and location of any documents or other
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tangible things and the identity and location of persons who know of any
discoverable matter. For good cause, the court may order discovery of any matter
relevant to the subject matter involved in the action. Relevant information need
not be admissible at trial if the discovery appears reasonably calculated to lead to
the discovery of admissible evidence. All discovery is subject to the limitations
imposed by Rule 26(b)(2)(C).
Fed. R. Civ. P. 26(b)(1). Rulings regarding the proper scope of discovery, and the extent to
which discovery may be compelled, are matters consigned to the Court's discretion and
judgment. It has long been held that decisions relating to the scope of discovery permitted under
Rule 26 also rest in the sound discretion of the Court. Wisniewski v. Johns–Manville Corp., 812
F.2d 81, 90 (3d Cir. 1987).
Moreover, notwithstanding the apparent relevancy of a particular document, it is well
established that the Court cannot compel the production of things that do not exist; nor can the
Court compel the creation of evidence by parties who attest that they do not possess the materials
sought by an adversary in litigation. See e.g., Smith v. Donate, 2011 WL 5593160 (M.D. Pa.
Nov. 17, 2011), reconsideration denied, 2011 WL 6003610 (M.D. Pa. Nov. 30, 2011).
In this case, Plaintiffs seeks a copy of his criminal trial transcript from Mercer County
and Defendant Adamo’s disciplinary records from the Lawrence County Police and Sharon
Police Department. With respect to the latter, Defendants have indicated in their responsive brief
that neither Defendants Adamo and Johnson nor Defendant Sharon Police Department have any
disciplinary records pertaining to Defendant Adamo in their possession, custody or control and
thus cannot be compelled to produce them. See ECF No. 26.
Similarly, with respect to the transcript of Plaintiff’s criminal trial, the documents that
Plaintiff has attached to his Motion to Compel indicate that the transcript has never been filed.
Because the transcript does not appear to exist, Defendants cannot be compelled to produce it.
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Accordingly, the following Order is entered:
AND NOW, this 19th day of December, 2013, IT IS HEREBY ORDERED that Plaintiff=s
“Motion for Order Mandating the Clerk of Court, and or Court Stenographer of Mercer County,
PA to Furnish the Plaintiff with a Copy of the Criminal Trial Transcript, Case No. 1221-2012 to
be Used in Civil Matter,” ECF No. 24, and Plaintiff’s “Motion for an Order Compelling
Disclosure or Discovery Documents,” ECF No. 25, are DENIED.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Rule 72.C.2 of
the Local Rules of Court, the parties are allowed fourteen (14) days from the date of this Order to
file an appeal to the District Judge which includes the basis for objection to this Order. Any
appeal is to be submitted to the Clerk of Court, United States District Court, 700 Grant Street,
Room 3110, Pittsburgh, PA 15219. Failure to file a timely appeal will constitute a waiver of any
appellate rights.
BY THE COURT:
/s/ Maureen P. Kelly
MAUREEN P. KELLY
UNITED STATES MAGISTRATE JUDGE
cc:
Percy L. Godfrey, Jr.
KV-4638
SCI Mercer
801 Butler Pike
Mercer, PA 16137-5653
Counsel of record via CM/ECF
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