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Bruesch v. Flanagan

United States District Court, D. North Dakota, Southwestern Division

March 11, 2014

Nicholas Dodge Bruesch, Plaintiff,
v.
Todd Flanagan, Sean Conway, Brandon Gumke, Jean Sullivan, and Nathan Erickson, Defendants.

ORDER

CHARLES S. MILLER, Jr., Magistrate Judge.

Before the court is a Request to Order Defendants to Produce Discovery filed by the plaintiff, Nicholas Dodge Bruesch ("Bruesch"), on June 20, 2013. Also before the court is a Motion to Strike filed by defendants on July 16, 2013. For the reasons set forth below, Bruesch's motion is denied and defendants' motion is granted.

I. BACKGROUND

Bruesch was incarcerated at the North Dakota State Penitentiary ("NDSP") at the time he initiated this action. He was transferred to the James River Correctional Center ("JRCC") on April 20, 2013.

On March 26, 2013, Bruesch filed what the court construed as a Motion for Release of Documents in which he asserted, amongst other things, that NDSP staff had denied him access to his legal materials. On April 8, 2013, defendants filed a response in opposition to Bruesch's motion. They maintained that the restrictions on plaintiff's ability to access legals materials were a measured, justified response to serious security issues.

On April 10, 2013, Bruesch filed a document captioned "Affidavit" wherein he again asserted that he had been denied access legal materials. On April 16, 2013, he filed what the court construed as a Second Motion for Release of Documents in which he asserted that JRCC staff was continuing to deny him access to his legal materials.

On April 23, 2013, defendants filed a supplement to their response in opposition to Bruesch's first Motion for Release of Documents, advising:

In his documents, Bruesch explains he was sent to the James Rivers Correctional Center (JRCC) on April 2, 2013 and that when the North Dakota State Penitentiary (NDSP) sent his property to JRCC it did not send all of his legal work, legal mail, and legal letters. Bruesch further asserts the JRCC warden told Bruesch his legal work will not be given to him when it is shipped from the NDSP.
The undersigned counsel contacted staff at the NDSP and the JRCC to determine the facts regarding this matter. It has been reported to the undersigned counsel that:
Bruesch was transferred to the JRCC on April 2, 2013. As part of his transfer, Bruesch's property was inventoried by NDSP staff. Some, but not all, of Bruesch's property was transferred to JRCC. Bruesch's property not transferred to JRCC was sent to the NDSP property officer. The NDSP property officer has located Bruesch's legal documents and will send them to the JRCC with the Tuesday, April 23, 2013 transport.
Due to sanctions for his behavior, Bruesch has received some, but not all, of his property sent to the JRCC. Based on his behavior at this time, Bruesch will receive his legal work when it arrives at the JRCC.

(Docket No. 69) (internal citations omitted).

Taking defendants statements at face value and believing that Bruesch would soon be reunited with his legal materials, the court deemed his Motions for Production of Documents moot.

On June 20, 2013, Bruesch filed a motion to compel production of the following from defendants:

1. Investigative Findings on Todd Flanagan regarding the May 30th, 2012 Incident of this case.
2. Investigation findings on Sean Conway regarding the May 30th, 2012 incident of this case.
3. Any investigation and/or misconduct reports on Todd Flanagan at the [North Dakota Department of ...

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