Martin v. Fort Wayne Police Department et al, No. 1:2009cv00048 - Document 36 (N.D. Ind. 2009)
Court Description: OPINION AND ORDER DENYING 30 REQUEST for Discovery or Production of Requested Documents by Anthony C Martin. Defendants ORDERED to cause an Affidavit to be filed as outlined in Order. Signed by Magistrate Judge Roger B Cosbey on 10/15/09. (cer)
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA FORT WAYNE DIVISION ANTHONY C. MARTIN, Plaintiff, v. FORT WAYNE POLICE DEPARTMENT, OFFICER GEORGE NICKLOW, et al., Defendants. ) ) ) ) ) ) ) ) ) ) CAUSE NO. 1:09-CV-00048 OPINION AND ORDER Before the Court is a filing by pro se Plaintiff Anthony C. Martin that the Court has deemed to be a motion to compel, seeking any transmission tapes or transcripts of communications among the arresting officers and any internal investigation files prepared in response to his allegations . (Docket # 30, 33). In response (Docket # 34), Defendants assert that there are no dispatch and radio communications that pertain to the police officers identified in Request No. 1 and Anthony Martin on February 12, 2009 and that they do not have Anthony Martin s Complaint to Internal Affairs and any findings or notes, including interviews conducted by Internal Affairs. 1 (Defs. Resp. Br. 2.) The Court cannot order Defendants to produce documents that are not in their possession, custody, or control . See, e.g., Burton Mech. Contractors, Inc. v. Foreman, 148 F.R.D. 230, 236 (N.D. Ind. 1992). Therefore, Plaintiff s motion to compel will be DENIED. Nonetheless, since Defendants claim that they have fully responded to Plaintiff s request for production of documents, Plaintiff is at least entitled to a response stating as much. Fishel v. 1 Plaintiff filed a reply to his motion on October 14, 2009. (Docket # 35.) BASF Group, 175 F.R.D. 525, 531 (S.D. Iowa 1997) ( Even if there are no [responsive] documents, plaintiff is entitled to a response as required by Fed. R. Civ. P. 34(b) . . . . ); see also Jay E. Grening & Jeffrey S. Kinsler, Handbook of Federal Civil Discovery and Disclosure ยง 9.40 (2d ed. 2002). Accordingly, Defendants are ORDERED to cause an affidavit to be filed, (1) stating that after diligent search there are no responsive documents in their possession, custody, or control, other than those previously produced,2 Fishel, 175 F.R.D. at 531; see also Cent. States, S.E. & S.W. Areas Health & Welfare Fund v. Neurobehavioral Assocs., P.A., No. 93 C 6169, 1997 WL 757879, at *4 (N.D. Ill. Dec. 2, 1997); and (2) describing their efforts to locate documents responsive to the requests at issue in Plaintiff s motion to compel. See Brooks v. Singletary, No. 88-C-2865, 1991 WL 94083, at *5 (N.D. Ill. May 24, 1991). The affidavit must fulfill these two requirements for the two document requests that Plaintiff claims have not been satisfactorily answered, that is, Request Nos. 4 and 5. Of course, Federal Rule of Civil Procedure 26(e)(1) requires that Defendants supplement or correct their discovery responses in a timely manner if they learn that they are incomplete or incorrect. For the foregoing reasons, Plaintiff s motion to compel (Docket # 30) is DENIED. SO ORDERED. Enter for this 15th day of October, 2009. /S/ Roger B. Cosbey Roger B. Cosbey, United States Magistrate Judge 2 The Court expects Defendants to set forth this language specifically in its affidavit, rather than a variation thereof. 2
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