*1 Plaintiff Michael Patterson (“Plaintiff”), appearing pro se, originally filed this action in state court, alleging state law claims and violations of his constitutional rights. (Dkt. No. 1-1.) On September 19, 2022, Defendants removed the action to Federal Court. (Dkt. No. 1.) This matter is now before the Court upon Plaintiff's Motion to Compel. (Dkt. No. 35.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(e), D.S.C., all pretrial matters in cases involving pro se litigants are referred to a United States Magistrate Judge for consideration. For the reasons set forth below, the Court grants in part and denies in part Plaintiff's Motion.

This civil action arises from events that occurred while Plaintiff was an inmate housed at Perry Correctional Institution. (Dkt. No. 1-1.) Plaintiff alleges that when he arrived at Perry, he was housed in D-Dorm. According to Plaintiff, he observed that “the desk sitting writing area was stripped out the room as well as the bed frame and the bed frame was replaced by a five inch concrete slab.” (Id. at 9.) Additionally, “the room window was completely covered over by sheet metal and that sheet metal completely prevented Plaintiff from viewing any of the natural surroundings,” including the sun and sky. (Id. at 10.) Plaintiff alleges that he was moved to a different wing in the same building on April 26, 2022, and his new room was in the same condition. Plaintiff alleges that the concrete bed was so low to the ground that it caused greater injury to Plaintiff already suffering from scoliosis.” (Id.) More specifically, “Plaintiff is forced to sit in the ‘V’ position,” which causes Plaintiff “severe pain and suffering and further injury to scoliosis.” (Id.)

Plaintiff also alleges he sought help from Defendant “Nurse Practitioner Amy Enloe, informing her of his scoliosis injury worsening and that such conditions were exacerbating his lower back pain and making the problem worse.” (Id. at 11.) Plaintiff alleges he began having suicidal thoughts due to Defendants’ “illegal and grossly negligent acts, deliberate indifference, cruel and unusual punishment, [and] denial of adequate medical care and/or basic needs of civilized life.” (Id.) Under “legal claims,” the Complaint alleges Defendants were grossly negligent under the South Carolina Tort Claims Act (“SCTCA”) and that Defendants violated his Eighth Amendment rights by showing deliberate indifference to a prison condition and deliberate indifference to a serious medical need. (Id. at 15.)

Plaintiff filed this action on September 19, 2022. (Dkt. No. 1.) On September 26, 2022, Defendants filed a Motion to Dismiss. (Dkt. No. 9.) On October 7, 2022, Plaintiff filed a Motion to Remand. (Dkt. No. 12.) On November 9, 2022, the undersigned issued a Report and Recommendation (“R&R”) recommending that the Court grant in part and deny in part Defendants’ Motion to Dismiss and deny Plaintiff's Motion to Remand. (Dkt. No. 17.) On December 12, 2022, Plaintiff filed a Motion to Compel, asking that Defendants produce certain photos. (Dkt. No. 35.) Defendants filed a response in opposition, to which Plaintiff filed a reply. (Dkt. Nos. 39; 41.) Plaintiff also submitted a letter on January 3, 2023, asking when a scheduling order would be entered in his case. (Dkt. No. 40.)

*2 Federal district courts are vested with broad discretion in resolving discovery disputes. Erdmann v. Preferred Research, Inc., of Ga., 852 F.2d 788, 792 (4th Cir. 1988). Rule 26 of the Federal Rules of Civil Procedure governs this discovery dispute and provides:

Fed. R. Civ. P. 26(b)(1). Discovery under the Federal Rules of Civil procedure “is broad in scope and freely permitted.” Carefirst of Maryland, Inc. v. Carefirst Pregnancy Centers, Inc., 334 F.3d 390, 402 (4th Cir. 2003). “The burden of proof is with the party objecting to the discovery to establish that the challenged production should not be permitted.” HDSherer LLC v. Nat. Molecular Testing Corp., 292 F.R.D. 305, 308 (D.S.C. 2013). However, a court must limit discovery if it determines that:

Fed. R. Civ. P. 26(b)(2)(C).

In his Motion to Compel, Plaintiff asserts that Defendants have produced a limited number of photographs in response to his discovery requests. (Dkt. No. 35.) According to Plaintiff, the produced photos do not properly respond to his discovery requests. He argues that the pictures taken of a cell window from outside “D-Dorm” crop out the “black mold, rust and krud that would have shown the poor living conditions of the facility that Plaintiff is forced to live in.” (Id. at 1.) He further contends that in response to his request for a picture of the “cell/room windows from inside D-Dorm,” Defendants “didn't take a picture of a window of D-Dorm Y-Wing as the living conditions are condemned but instead went to another part of the facility of which Plaintiff [had] never been and took a picture of a completely fenced in window.” (Id.) Here, Plaintiff also claims that Defendants improperly refused to produce photos of: (1) “the position one is required to sit in if sitting on the concrete slab that replaced bed frame, desk, sitting area”; and (2) “a picture that shows the exact measurements of the window concrete slab, floor to ceiling proportions/measurements (D-Dorm).” (Id. at 2.) Finally, Plaintiff also seeks to compel Defendants to produce a copy of the American Correctional Association (“ACA”) decorum standards on acceptance cell/room furnishings and or conditions. Plaintiff claims that his cell violates the ACA standards. (Id.)

*3 Defendants dispute Plaintiff's Motion to Compel. (Dkt. No. 39.) They argue that the photographs Plaintiff seeks of the window of his cell are not relevant to the case because the undersigned has recommended dismissing any § 1983 claims relating to the windows of his cell. (Id. at 2.) Defendants also contend that they are not required to produce photographs that do not exist. (Id. at 2–3.) Finally, Defendants contend that Plaintiff's request for a copy of the ACA guidelines pertaining to acceptable furnishings or conditions is overly broad and is not relevant to this case based on the undersigned's recommendation that any § 1983 claims arising from alleged violations of ACA guidelines be dismissed. (Dkt. No. 39 at 3; Dkt. No. 17 at 12.) Defendants have also submitted Plaintiff's discovery requests and their responses. (Dkt. Nos. 39-2; 39-3.) The record shows that in response to certain discovery requests, Defendants produced to Plaintiff “photographs of a cell in the Restrictive Housing Unit in the Delta Dormitory at Perry Correctional Institution taken on or after the date of Plaintiff's arrival at Perry Correctional Institution.” (Dkt. No. 39-3 at 2–4.)

As an initial matter, the Court cannot order the production of photographs that do not exist. “It is axiomatic that a party cannot be ordered to produce documents that do not exist.” Moore v. BPS Direct, LLC, No. 2:17-CV-3228-RMG, 2019 WL 2912490, at *2 (D.S.C. July 8, 2019); see also Jackson v. Wade, No. 1:20-CV-114 (LMB/IDD), 2021 WL 1536578, at *5 (E.D. Va. Apr. 19, 2021), appeal dismissed, 2021 WL 5447601 (4th Cir. Nov. 22, 2021) (“[A] subpoena can only direct an individual or entity to produce materials in their ‘possession, custody, or control,’ and thus cannot compel an entity to create a new document—like the affidavit plaintiff requests—out of whole cloth.”); Payless Shoesource Worldwide, Inc. v. Target Corp., No. 05-4023, 2008 WL 973118, at *4 (D. Kan. Apr. 8, 2008) (“Fed. R. Civ. P. 34 does not require a party to create responsive documents if they do not exist in the first instance” and “the Court cannot compel a party to produce documents that do not exist.”) (citation omitted); Insituform Technologies, Inc. v. Cat Contracting, Inc., 168 F.R.D. 630, 633 (N.D. Ill. 1996) (“Rule 45 ... does not contemplate that a non-party will be forced to create documents that do not exist.”). Accordingly, to the extent Defendants do not possess photographs responsive to Plaintiff's discovery requests, the Court cannot compel their production.[1]

Here, the Court notes that it is unclear why Defendants produced photos in response to some discovery requests and not others. According to Plaintiff, the produced photographs do not depict his wing within D-Dorm. However, Plaintiff's discovery requests did not reference a specific wing or portion of D-Dorm. Without more, the Court cannot grant Plaintiff's motion to compel any of the requested photographs at issue.

As for Plaintiff's request for a copy of a portion of the ACA guidelines, the Court finds Defendants should produce to Plaintiff the current edition of the ACA guidelines pertaining to acceptable furnishings or conditions. While the undersigned has recommended Plaintiff cannot bring a separate § 1983 claim based on an alleged violation of these guidelines, that does not mean the guidelines are not relevant to Plaintiff's conditions of confinement claim.

Finally, the Court recognizes that Plaintiff would like to know when a scheduling order will be entered in his case. (Dkt. No. 40.) The Court will enter a scheduling order once Defendants’ Motion to Dismiss (Dkt. No. 9) and Plaintiff's Motion to Remand (Dkt. No. 12) have been resolved by the District Judge. The undersigned's November 9, 2022 R&R only recommended rulings as these motions—it does not constitute a final ruling. (Dkt. No. 17.)

*4 Based on the foregoing, the Court GRANTS IN PART AND DENIES IN PART Plaintiff's Motion to Compel (Dkt. No. 35). The Motion is granted to the extent Defendants must produce to Plaintiff the current edition of the ACA guidelines pertaining to acceptable furnishings or conditions. Defendants must produce these guidelines to Plaintiff by February 9, 2022, and must file a certificate of service by this date, certifying that production has been completed. The remainder of Plaintiff's Motion to Compel is denied.

IT IS SO ORDERED.