VIRGIL LAMB, Plaintiff, v. TIMOTHY TIBBS, MICHAEL COSTELLO, SHANNON SAMS, and SUPERINTENDENT JOSEPH WOOD, Defendants Civil Action No.: 5:22-CV-217 United States District Court, N.D. West Virginia Filed June 22, 2023 Mazzone, James P., United States Magistrate Judge ORDER *1 Currently pending before this Court on referral from the District Court is Plaintiff's Second Motion to Compel Discovery [Doc. 82], filed May 18, 2023. The matter has been fully briefed and is ripe for decision. After considering the parties' briefs, the applicable law, and the Court file, the Motion will be granted in part and denied in part. I. Factual/Procedural History This case arises out of a number of alleged violations of plaintiff's constitutional rights while he was incarcerated at North Central Regional Jail and Correctional Facility (“NCRJ”). Plaintiff alleges that defendant Costello, who was employed as a correctional officer at the time, employed excessive force against Lamb and his cellmates by spraying oleoresin capsicum spray (“OC spray”) into plaintiff's cell on May 6, 2022. Plaintiff alleges that defendants Sams and Wood, who were employed as a captain and supervisor, respectively, explicitly or tacitly condoned the actions of defendant Costello. Plaintiff argues that the use of force incident was part of larger patterns of excessive use of force employed by defendant Costello and defendant Tibbs, another correctional officer. Plaintiff further alleges that defendants Sams and Wood were aware, or should have been aware, of this pattern of using excessive force by Costello and Tibbs, but failed to take action to discipline, train, or otherwise curb their use of excessive force. On September 8, 2022, plaintiff filed the Complaint in this case pursuant to 42 U.S.C. § 1983. II. Applicable Law Pursuant to Federal Rule of Civil Procedure 37(a), a party is entitled to file a motion to compel discovery or disclosure from an opposing party where the opposing party fails to respond or where the party provides incomplete or evasive answers. “[O]nce the moving party has made ‘a prima facie showing of discoverability,’ the resisting nonmovant has the burden of showing either: (1) that the discovery sought is not relevant within the meaning of Rule 26(b)(1); or (2) that the discovery sought ‘is of such marginal relevance that the potential harm ... would outweigh the ordinary presumption of broad discovery.’ [Eramo v. Rolling Stone LLC, 314 F.R.D. 205, 209 (W.D. Va. 2016)].” Ceresini v. Gonzales, No. 3:21-CV-40, 2022 WL 628520, at *3 (N.D. W.Va. Mar. 3, 2022) (Trumble, M.J.). III. Discussion On May 18, 2023, plaintiff filed the instant Motion to Compel. The Motion seeks to compel defendants Sams and Wood to produce complete responses to Plaintiff's First Request for Production of Documents and Interrogatories. Plaintiff's Motion listed a number of items for which defendants had agreed to provide supplemental information but which had not been provided. However, since the initial filing of the Motion, plaintiff's Reply [Doc. 92] indicates that that much of the disputed requests have since been supplemented. Plaintiff categorizes the remaining unresolved requests into two categories. First, there are a number of documents requested by plaintiff which defendants have represented do not exist or cannot be located. Plaintiff asks this Court to “determine, based on Defendants' Response to these requests, that these documents do not exist, and deny these elements of Plaintiff's Second Motion to Compel on that basis.” [Doc. 92 at 4]. Accordingly, the Motion is DENIED IN PART as to these requests.[1] Second, plaintiff lists three outstanding responsive documents: *2 1. Supplementation of use of force documents responsive to Request No. 4, through the date of counsel's response to Plaintiff's good faith letter [Exhibit 2]; 2. Access to review and copy clips of video footage at counsel for Defendants' office [Id.]; and 3. A recently obtained segregation log [Doc. No. 90 at p. 8]. [Doc. 92 at 4]. Regarding these documents, plaintiff states that defendants have agreed to produce the documents as well as inquire into a request for “daily activity logs and historical OIS information related to time in segregation” pending further clarification from plaintiff's counsel. [Id.]. As defendants have agreed to provide these documents, plaintiff asks that the Court order the defendants to produce the documents within 14 days. Regarding this request, the Motion [Doc. 82] will be GRANTED IN PART, and the parties are directed to confer and file an agreed upon deadline for defendants to produce the above documents. IV. Conclusion For the reasons stated above, Plaintiff's Second Motion to Compel Discovery [Doc. 82] is GRANTED IN PART AND DENIED IN PART. Within five (5) days of this Order, the parties are hereby DIRECTED to file an agreed deadline for the defendants to produce the following: 1. Supplementation of use of force documentation as discussed in the June 9, 2023 emails [Doc. 92-2]. 2. Access to review and copy the video footage discussed in the June 9, 2023 emails [Doc. 92-2]. 3. The segregation log discussed in defendant's response to the Motion to Compel [Doc. 90 at 8–9]. In the event that the parties are unable to agree on a deadline for the above-listed production, each party is directed to submit a proposed deadline and the Court will determine a deadline as appropriate. It is so ORDERED. Any party may, within FOURTEEN DAYS of this Order, file with the Clerk of Court written objections identifying the portions of the Order to which objection is made, and the basis for such objection. A copy of such objections should also be submitted to the District Court Judge of Record. Failure to timely file objections to the Order set forth above will result in a waiver of the right to appeal from a judgment of this Court based upon such an Order. The Clerk of the Court is DIRECTED to provide copies of this Order to all counsel of record herein. Footnotes [1] The undersigned declines to make a finding verifying defendant's answers that such documents do not exist, as such a factual finding would not be appropriate in a ruling on a Motion to Compel.