Mitchell v. Moungey et al

Filing 40

ORDER signed by Chief Judge William C Griesbach on 5/7/18 denying 21 Motion to Compel. (cc: all counsel) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

KEVIN BRIAN MITCHELL,
Plaintiff,
v.

Case No. 17-C-920

ANDREW MOUNGEY, et al.,
Defendants.

ORDER

Plaintiff Kevin Brian Mitchell filed this 42 U.S.C. § 1983 lawsuit, alleging that Defendants
violated his civil rights. On April 25, 2018, the court screened Mitchell’s amended complaint and
allowed him to proceed on an excessive force claim against defendants Moungey, Burns, Kappel,
and Johnson as well as a deliberate indifference claim against Kacyon. Presently before the court
are Mitchell’s motion to compel and motion to hold Defendants, Defendants’ attorney, and Waupun
Correctional Institution’s legal coordinator in contempt and to sanction them. Mitchell seeks to
compel the production of video footage related to his claims, specifically footage of Defendants
escorting Mitchell to the restrictive housing unit (RSU) on April 10, 2017.
In response, Defendants submitted a declaration from Yana Pusich, Waupun Correctional
Institution’s Corrections Program Supervisor, stating that, although she located five videos from
April 10, 2017 that showed the staff-assisted search in RSU, she was unable to locate a video that
showed Mitchell’s escort to RSU. Pusich Decl. ¶ 7, ECF No. 38. Mitchell reviewed these five
videos on February 23, 2018. Id. ¶ 8. Captain Robert Rymarkiewicz, the officer responsible for
conducting an investigation into Mitchell’s claims, declared that any footage that may have shown

Mitchell’s escort to RSU was not saved and was ultimately recorded over before any investigation
began due to the limited storage space on the digital video recorder. Rymarkiewicz Decl. ¶ 6, ECF
No. 39.
These declarations establish that video footage of Mitchell’s escort to RSU no longer exists.
The court cannot compel Defendants to produce something they do not have. Accordingly,
Mitchell’s motions will be denied.
IT IS THEREFORE ORDERED that Mitchell’s motion to compel (ECF No. 21) is
DENIED.
IT IS FURTHER ORDERED that Mitchell’s motion to hold Defendants, Defendants’
attorney, and WCI legal coordinator in contempt and to sanction them (ECF No. 26) is DENIED.
Dated this 7th day of May, 2018.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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