United States District Court, S.D. Ohio, Western Division
BRIAN K. ALFORD, Plaintiff,
GARY MOHR, et al., Defendants.
L. LITKOVITZ UNITED STATES MAGISTRATE JUDGE.
an inmate at the Toledo Correctional Institution and former
inmate at the Lebanon Correctional Institution (LeCI) brings
this pro se civil rights action under 42 U.S.C. § 1983.
The only remaining defendant in this case is defendant
Richard Malott, an Air Quality Tech 2 at LeCI. Plaintiff
alleges that between February 5 and October 8, 2013,
defendant Malott intentionally "vented" dangerous
refrigerants into the atmosphere at LeCI and did not comply
with safe disposal requirements, which put plaintiff in
imminent danger of death or serious bodily harm. (Doc. 35,
¶¶ 44, 46; Exh. A). Plaintiff alleges that as a
result of Malott's actions, plaintiff suffered permanent
eye damage with long-lasting pain and other symptoms, and he
required surgeries and hospitalizations. (Id.,
¶¶ 44, 45, 46). This matter is before the Court on
plaintiffs motions for extension of the discovery deadline
and to compel discovery (Docs. 131, 133), defendant
Malott's responses in opposition (Docs. 132, 137), and
plaintiffs reply memorandum (Doc. 138).
propounded discovery on defendant seeking the following:
1. All refrigeration usage logs for all refillable cylinders
used at Lebanon Correctional Institution's HVAC
Department utilized by Defendant Malott for the period of
February 5th, 2013 thru October 8th, 2013.
2. All recovery usage logs for the recovery machine utilized
by Defendant Malott at Lebanon Correctional Institution for
the period of February 5th, 2013 thru October 8th, 2013.
3. All work orders for repair and maintenance for
refrigeration equipment at Lebanon Correctional Institution
utilized by Defendant Malott in the HVAC Department from
February 5th, 2013 thru October 8th, 2013.
4. All documents relating the investigation of intentional
venting by Defendant Malott in the HVAC Department at Lebanon
Correctional Institution during the period of February 5th,
2013 thru October 8th, 2013.
objected to the form of each request and, with respect to
Request Nos. 1, 2, and 4, stated that "upon reasonable
inquiry and effort, no such documents could be located."
(Doc. 133-1 at 62-63). With respect to Request No. 3,
defendant produced Bates Stamped Documents 1-34.
(Id.). Plaintiff alleges the documents he seeks in
Requests Nos. 1, 2, and 4 are relevant to his claims in this
case, as these "records are required by the EPA
(Environmental Protection Agency) under Section 608 of the
Clean Air Act of 1993 in order to ensure implementation and
enforcement of regulations involving safe disposal
requirements and contain sever penalties for venting
refrigerants into the atmosphere." (Doc. 133 at 4).
Plaintiff alleges that the documents he seeks will show that
the evacuation levels for various appliances and equipment
exceeded that permitted by the EPA. (Id. at 5).
represents that all of the documents sought in plaintiffs
motion to compel could not be located and therefore cannot be
provided. (Doc. 137 at 1). Counsel for defendant alleges that
she informed plaintiff that the documents he requested, upon
inquiry and due diligence, are not in the possession of
defendant, his employer, or counsel. Id. In reply,
plaintiff reiterates that "recovery, recharging, and
reclaiming refrigerants for disposal of appliances cannot be
performed without refrigerant usage logs, recovery machine
usage logs, or refillable cylinder usage logs" under
"Section 608 of the Clean Air Act." (Doc. 138 at
2), However, plaintiff has failed to produce any evidence
that such logs actually exist or to direct the Court's
attention to any specific section of the Act or regulations
that specifically mandate recordkeeping through the use of
"refrigerant usage logs," "recovery machine
usage logs," or "refillable cylinder usage
logs" to suggest that such documents actually exist.
review of both parties' submissions, the Court finds that
defendant has fully complied with plaintiffs discovery
requests. A defendant has no duty to "create a
report for Plaintiff or to produce documents that do not
exist or which are not within the Defendant['s] custody
and control." Smallwood v. Collins, No.
2:08-cv-679, 2010 WL 2044953, at *3 (S.D. Ohio May 21, 2010)
(citing Ridenour v. Collins, No. 2:08-cv-682, 2010
WL 546353 at *14 (S.D. Ohio Feb. 10, 2010)). See also
McDougald v. Bear, No. 1:17-cv-124, 2018 WL 4935938, at
*2 (S.D. Ohio Oct. 11, 2018) ("defendants cannot be
compelled to produce video footage that does not
exist"); Brown v. Warden Ross Corr. Inst., No.
2:10-cv-822, 2011 WL 1877706, at *5 (S.D. Ohio May 16, 2011)
("Defendants have represented that they do not have the
information Plaintiff seeks. The Court cannot require them to
produce what they do not have."). Defendant has
represented that the documents sought in Request Nos. 1, 2,
and 4, after a diligent search, could not be located and are
not in the possession of defendant, his employer, or counsel.
As such, defendant cannot be compelled to produce documents
that do not exist. See Tolliver v. Liberty Mut. Fire Ins.
Co., No. 2:06-cv-00904, 2008 WL 4951792, at * 2 (S.D.
Ohio Nov. 17, 2008) ("A party cannot be compelled to
produce documents which do not exist or which it does not
possess or control."). Thus, plaintiffs motions for
extension of the discovery deadline and to compel discovery
(Docs. 131, 133) are DENIED.