Bergeron-Davila v. Schmaling et al

Filing 94

ORDER signed by Judge J.P. Stadtmueller on 9/20/2017 DENYING 77 , 78 and 79 Plaintiff's Motions to Compel Discovery. (cc: all counsel, via mail to Raymond J. Bergeron Davila at Waupun Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RAYMOND J. BERGERON DAVILA,

v.

Plaintiff,

CHRISTOPHER SCHMALING,
DOUGLAS WEARING, LT.
BRADLEY FRIEND, C.O. JOSEPH
ZIMMER, and JOHN DOES.

Case No. 16-CV-1665-JPS

ORDER

Defendants.
On August 18, 2017, Plaintiff filed three motions to compel directed
to Defendants. (Docket #77, #78, and #79). The latter two must be denied
out of hand for Plaintiff’s failure to comply with Civil Local Rule 37, which
he does not contest. See (Docket #78 and #79) (providing no indication of an
attempt to resolve Plaintiff’s disputes prior to filing the motions); (Docket
#84 at 2-3) (Defendants note that they received no Local Rule 37
communication from Plaintiff for those motions); (Docket #88 at 3) (Plaintiff
“drops” the contentions in those motions). The Court had previously
informed Plaintiff that he must provide a certification in accordance with
Local Rule 37 for each discovery motion. (Docket #76 at 1-2). The Court
warns Plaintiff that he, like any litigant, is subject to sanctions for frivolous
filings. See In re Green, 42 F. App’x 815 (7th Cir. 2002). If he offers additional
motions to compel which do not comport with the federal and local rules of
procedure, simply withdrawing those motions will not be enough to save
him from an appropriate sanction.

Only Plaintiff’s first motion in this set was preceded by a Rule 37
communication. Within that motion, the only argument Plaintiff desires to
pursue is with respect to his request for video footage of the November 20
and 21, 2015 self-harm incidents. (Docket #77 at 2; Docket #88). Defendants
state that no such footage exists. (Docket #84 at 3). In his reply, Plaintiff
argues that Defendants were on notice of the need to save the footage and
have either destroyed it or are intentionally refusing to produce it. (Docket
#88). Towards the end of that document, Plaintiff seeks “sanctions for
spoliation of evidence.” Id. at 3. The motion before the Court is one to
compel production of the video, not for spoliation. Defendants cannot
produce what they do not have. The motion to compel must, therefore, be
denied. An argument for spoliation sanctions must be pursued, if at all, in
a motion specifically directed to that point.
Accordingly,
IT IS ORDERED that Plaintiff’s motions to compel (Docket #77, #78,
and #79) be and the same are hereby DENIED.
Dated at Milwaukee, Wisconsin, this 20th day of September, 2017.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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