United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM AND ORDER
B. Russell, Senior Judge.
matter is before the Court upon a motion to compel discovery
and for issuance of a subpoena (DN 26) by pro se
Plaintiff John Belden. Defendant Ryan Ramey filed a response
(DN 27), and Plaintiff filed a reply (DN 30).
motion to compel, Plaintiff states that Defendant Ramey
responded to his “First Request for Production of
Discovery” by sending him “only (4) four
documents the defendant  had in ‘his
possession.'” He argues that “defendant's
counsel has the unrestricted access to the requested
documents and the legal authority and right to obtain them
for request, by law.” In the motion, Plaintiff also
asks for additional time to identify the unknown Defendants
in this case; for the issuance of a subpoena to the Records
Department Supervisor at Luther Luckett Correctional Complex
(LLCC) for the requested discovery; for an order directing
preservation of the video footage regarding the matters in
question; and for an order directing Defendant to pay the
expenses related to preparation of this motion.
response, Defendant Ramey argues that the materials that
Plaintiff requested are not in Defendant Ramey's
possession, custody, or control as Defendant Ramey was sued
in his individual capacity and is no longer an employee of
the Kentucky Department of Corrections (KDOC). He further
argues that Plaintiff has the same means available to him as
Defendant Ramey does for obtaining documents from the KDOC,
which is not a party to this action.
reply, Plaintiff asserts that “‘Defendant's
Counsel is a attorney with Justice and Public Safety Cabinet
which oversees and directs KyDoc.” Plaintiff also
asserts that he does not have the same access to the
materials as Defendant because he is indigent and because he
already has attempted to gather the discovery “by other
means (open records act) and have been denied.” He
attaches exhibits to his motion showing his attempts to
obtain the discovery on his own. In his reply, Plaintiff also
requests appointment of counsel “to assist in preparing
case and gathering discovery for trial.”
reply, Plaintiff asks the Court to “subpoena” the
documents he has requested if he cannot obtain them through a
motion to compel.
review, the Court finds Defendant's arguments
unpersuasive. Rule 34(a) of the Federal Rules of Civil
Procedure requires the production of requested documents that
are in the possession, custody, or control of the party upon
whom the request is served. Under Rule 34,
“control” means “the legal right to obtain
the documents requested upon demand” and is broadly
construed. Searock v. Stripling, 736 F.2d 650, 653
(11th Cir. 1984); accord Soto v. City of
Concord, 162 F.R.D. 603, 619 (N.D. Cal. 1995); Gen.
Envtl. Sci. Corp. v. Horsfall, 136 F.R.D. 130, 133 (N.D.
Ohio 1991). Indeed, “courts have also interpreted Rule
34 to require production if the party has the practical
ability to obtain the documents from another,
irrespective of his legal entitlement.” In
re Nasdaq Market-Makers Antitrust Litig., 169 F.R.D.
493, 530 (S.D.N.Y. 1996) (internal quotation omitted)
claims that he was sued in his individual capacity and is no
longer employed by the KDOC. Courts have held that prison
officials who were sued in their individual capacities but
employed by the department of corrections can generally
obtain documents from the department of corrections by
requesting them and that they, therefore, have constructive
control over the requested documents and must produce them.
See, e.g., Wick v. Angelea, No.
2:09-CV-1027-GEB-EFB, 2013 WL 4432394, at *3 (E.D. Cal. Aug.
while Defendant is sued in his individual capacity, he is not
currently employed by the KDOC. As Plaintiff points out,
however, Defendant Ramey is represented by counsel for the
KDOC and, therefore, should effectively have the ability
through counsel to obtain the documents and videos requested
from the KDOC. See, e.g., Gross v.
Lunduski, 304 F.R.D. 136, 143 (W.D.N.Y. 2014)
(concluding that the department of corrections “and
Defendant's interests are sufficiently aligned and
closely interrelated in this case to support a finding that
in defending a prisoner's claim of excessive force, such
as Plaintiff's claim, the Defendant has the
‘practical ability' to obtain documents held by
[the department of corrections], although a non-party, as
requested by Plaintiff”). Defendant Ramey does not
dispute this argument. Further, because the Unknown LLCC
Defendants that Plaintiff is trying to identify through
discovery also likely will be represented by counsel for the
KDOC, there should be other Defendants, who while also sued
in the individual capacities, are currently employed by the
KDOC, for whom counsel for the KDOC could eventually obtain
the requested discovery. The Court, therefore, concludes that
Defendant Ramey, through KDOC counsel, has constructive
control over the KDOC documents and videos requested by
Defendant Ramsey's assertion that the pro se
prisoner Plaintiff has the same means available to him as
Defendant Ramey does for obtaining documents from the KDOC,
Plaintiff attaches documents to his reply showing that he has
already attempted to obtain some of the materials through
Open Records Requests but has been denied.
these reasons, IT IS ORDERED that
Plaintiff's motion to compel (DN 26) Defendant Ramey to
produce the documents and videos sought in his First Request
for Production of Discovery is GRANTED.
IS FURTHER ORDERED that within 30 days from entry of
this Order, Defendant Ramey shall produce the requested
documents and videos to Plaintiff and certify having done so
or shall file an objection(s) to this Order and/or
Plaintiff's First Request for Production of Discovery
explaining why any or all requests cannot be
Court notes that although Plaintiff requests the expenses in
relation to this motion to compel, the Court declines to
require such at this time. Although the payment of expenses
is permitted by Rule 37(a), the Court finds that an award of
expenses would be unjust in this circumstance where Plaintiff
is proceeding pro se and has not explained how he
incurred expenses simply by filing his motion.
having granted Plaintiff's motion to compel, IT
IS ORDERED that his motion for issuance of ...