Byrd, Lewis v. Arnez, Brandon

Filing 66

ORDER denying plaintiff Lewis Edward Byrd III's 61 motion to compel production of discovery. Signed by District Judge James D. Peterson on 4/3/2018. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

LEWIS EDWARD BYRD III,
Plaintiff,
v.

ORDER
17-cv-191-jdp

BRANDON ARENZ,
Defendant.

Pro se plaintiff Lewis Edward Byrd III is proceeding on a Fourth Amendment excessive
force claim against defendant Brandon Arenz. He alleges that Arenz shot at him 11 times and
broke his arm during an arrest. Arenz has moved for summary judgment. Dkt. 23. Byrd has
not yet responded to that motion. He asks me to compel Arenz to respond to his discovery
requests. Dkt. 61. I will deny his request.
Byrd asks me to compel Arenz to produce seven items that he says Arenz claims not to
have: (1) photos of Byrd’s car, which was involved in the incident; (2) body camera video of
the arrest; (3) accident reports and “3-0 scans” concerning the arrest; (4) “firearm
recertification requirements for state of Wisconsin Police officers”; (5) Arenz’s psychiatric
evaluation reports; (6) Arenz’s firearm certifications; and (7) documents concerning Arenz’s
resignation from the City of Hillsboro Police Department. Id. at 1. Arenz says he’s given Byrd
everything he has, and points out that some of these items may be available from other sources,
such as the Monroe County Sheriff’s Office or the Wisconsin State Highway Patrol. (Arenz
also complains that Byrd never asked for items 4 and 5 before, but he says that regardless, he
doesn’t possess any material responsive to the new requests.)

Byrd says he finds it “hard to believe” that these items don’t exist. Id. at 2. But the
question is not whether the items exist but whether they are in Arenz’s possession, custody, or
control. Arenz says they aren’t, and Byrd has given me no reason to doubt that. I can’t compel
someone to produce something they don’t have, so I will deny Byrd’s motion. I encourage Byrd
to use the discovery tools available to him to gather the materials he needs. Specifically, Byrd
may issue subpoenas under Federal Rule of Civil Procedure 45 requesting the production of
documents from non-parties such as such as the Monroe County Sheriff’s Office and the
Wisconsin State Highway Patrol.

ORDER
IT IS ORDERED that plaintiff Lewis Edward Byrd III’s motion to compel production
of discovery, Dkt. 61, is DENIED.
Entered April 3, 2018.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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