Sisney v. Kaemingk et al

Filing 44

ORDER denying 38 Motion to Preserve Evidence and Compel Production of Evidence. Signed by US Magistrate Judge Veronica L. Duffy on 10/30/2015. (CG)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
CHARLES E. SISNEY,

4:15-CV-04069-LLP

Plaintiff,
vs.
DENNY KAEMINGK, IN HIS OFFICIAL
CAPACITY AS THE SOUTH DAKOTA
SECRETARY OF CORRECTIONS;
DARIN YOUNG, IN HIS OFFICIAL
CAPACITY AS THE WARDEN OF THE
SOUTH DAKOTA STATE
PENITENTIARY; SHARON REIMANN,
IN HER OFFICIAL CAPACITY AS AN
SDSP DESIGNATED MAILROOM
OFFICER; AND CRAIG MOUSEL, IN
HIS OFFICIAL CAPACITY AS AN SDSP
DESIGNATED PROPERTY OFFICER;

ORDER DENYING PLAINTIFF’S
MOTION FOR EVIDENCE
PRESERVATION AND TO COMPEL
DOCKET NO. 38

Defendants.

This matter is before the court on plaintiff Charles E. Sisney’s pro se
complaint pursuant to 42 U.S.C. § 1983. Now pending is Mr. Sisney’s motion
seeking (1) an order to defendants requiring them to preserve seven books and
various magazines as evidence in this matter and (2) an order to defendants
requiring them to turn those books over to Mr. Sisney as discovery. See Docket
No. 38.
As to Mr. Sisney’s request that defendants preserve the evidence in
question, which is central to Mr. Sisney’s claims, Mr. Sisney’s filing indicates
that the books are currently in his mother’s custody. He seeks an order from
the court requiring defendants to take custody of the materials because his

mother is 72 years old and is of poor and failing health. Mr. Sisney’s request is
premature at this point. The evidence is in his own “custody or control,”
“control” being defined as in a place where the party Ahas the legal right to
obtain the document.@ See 8A Charles A. Wright, Arthur R. Miller, & Richard
L. Marcus, Fed. Practice & Procedure, '2210, at 397 (2d ed. 1994); American
Soc. for the Prevention of Cruelty to Animals v. Ringling Bros. & Barnum &
Bailey Circus, 233 F.R.D. 209, 212 (D.D.C. 2006) (citing Poole ex rel. Elliott v.
Textron, Inc., 192 F.R.D. 494, 501 (D. Md. 2000); and Poppino v. Jones Store
Co., 1 F.R.D. 215, 219 (W.D. Mo. 1940)). At this point, there is no reason to
require defendants to assume control of evidence currently within Mr. Sisney’s
control.
Also, the court notes that Mr. Sisney’s mother just filed an “amicus
curiae” affidavit with the court this week, leading the court to conclude that
she remains able-bodied enough to keep the evidence in her custody. See
Docket No. 40. If circumstances change, Mr. Sisney may renew his motion
upon that change manifesting itself.
As to Mr. Sisney’s second request—an order compelling production of the
documents--the proper course if a party wishes to obtain discovery of
documents or other material things is to serve the opposing party with a
request for the production of documents pursuant to Federal Rule of Civil
Procedure 34. Then, if the party in possession of the requested discovery
objects or refuses to produce the documents in response to the request, the
party seeking the discovery (here Mr. Sisney), must first confer or attempt to
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confer in good faith with the party in possession of the discovery to attempt to
resolve the discovery dispute informally between the parties. See FED. R. CIV. P.
37; DSD LR 37.1.
If such efforts are unsuccessful, then and only then may the party
seeking the discovery file a motion to compel. Id. That motion must contain a
certification that the movant first complied with the prerequisite of conferring
or attempting to confer in good faith with the other party to try to resolve the
matter. Id. Mr. Sisney’s motion contains no indication that he first served
defendants with a request for the production of the documents he seeks.
Accordingly, it is hereby
ORDERED that Mr. Sisney’s motion to preserve evidence and to compel
production of evidence [Docket No. 38] is denied.
DATED October 30, 2015.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

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