Marti v. Padilla, et al

Filing 217

ORDER Granting 203 in Part Plaintiff's All-Inclusive Motion to Compel 203 ; ORDER for Defendants to Provide Further Responses to Plaintiff's Discovery Requests, as Instructed by this Order, within Forty-Five (45) Days; ORDER Closing Discovery Except for Limited Purpose, signed by Magistrate Judge Gary S. Austin on 8/30/11. (Verduzco, M)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

ALEX LAMOTA MARTI,

12

Plaintiff,

13
14

1:07-cv-00066-LJO-GSA-PC
ORDER GRANTING IN PART PLAINTIFF'S
ALL- INCLUSIVE MOTION TO COMPEL
(Doc. 203.)

vs.
F. PADILLA, et al.,

ORDER FOR DEFENDANTS TO PROVIDE FURTHER
RESPONSES TO PLAINTIFF’S DISCOVERY
REQUESTS, AS INSTRUCTED BY THIS ORDER,
WITHIN FORTY-FIVE (45) DAYS

15
16

ORDER CLOSING DISCOVERY EXCEPT FOR
LIMITED PURPOSE

17
18
19

/
I.

RELEVANT PROCEDURAL HISTORY

20

Alex Lamota Marti (“Plaintiff”) is a prisoner proceeding pro se in this civil rights action pursuant

21

to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on January 12, 2007. (Doc.

22

1.) This action now proceeds on the Amended Complaint filed by Plaintiff on July 9, 2007, against

23

twenty-two defendants (“Defendants”), on Plaintiff claims for retaliation under the First Amendment.1

24

(Doc. 20.)

25

On September 24, 2008, the Court issued a Discovery/Scheduling Order establishing a deadline

26

of May 17, 2009 for completion of discovery, and a deadline of July 17, 2009 for the filing of pretrial

27
1

28

All twenty-two of the Defendants have answered the complaint. (Docs. 52, 66-3 at Exh. A, 78, 84-2 at Exh. A,

172.)

1

1

dispositive motions. (Doc. 54.) Upon requests by the parties, the Court extended the deadlines;

2

however, the discovery and dispositive motions deadlines are now expired. (Docs. 117, 123, 124, 141,

3

142, 150, 152, 156, 157, 166, 167, 169, 171.)

4

Between March 4, 2009 and November 6, 2009, Plaintiff filed seven motions to compel

5

discovery responses. (Docs. 107, 127, 129, 134, 139, 147, 148.) On March 30, 2010, the Court denied

6

Plaintiff’s seven motions to compel as moot. (Doc. 165.) On September 13, 2010, Plaintiff filed another

7

motion to compel. (Doc. 187.)

8
9
10

On September 29, 2010, Defendants filed a Motion for Summary Judgment. (Doc. 173.)
Plaintiff has been granted an extension of time until November 14, 2011 to file an opposition to the
Motion. (Doc. 214.)

11

On January 28, 2011, Plaintiff was granted until March 2, 2011 to file one, all-inclusive motion

12

to compel, to enable him to defend against the Motion for Summary Judgment. (Doc. 193.) On March

13

1, 2011, Plaintiff filed an all-inclusive motion to compel. (Doc. 203.) On May 6, 2011, Defendants filed

14

an opposition. (Doc. 207.) On June 15, 2011, Plaintiff filed a reply. (Doc. 212.) Plaintiff’s all-

15

inclusive motion to compel is now before the Court.

16

II.

PLAINTIFF’S ALLEGATIONS AND FIRST AMENDMENT RETALIATION CLAIMS

17

Plaintiff was incarcerated at the California Substance Abuse Treatment Facility (“SATF”) in

18

Corcoran, California, at the time the events at issue allegedly occurred. Plaintiff brings retaliation claims

19

against twenty-two defendants who were all employees of the California Department of Corrections and

20

Rehabilitation (“CDCR”) at SATF while Plaintiff was incarcerated there.

21

Plaintiff alleges in the Amended Complaint as follows.

22

On January 28, 2005, Plaintiff made a court appearance on a petition for writ of habeas corpus

23

regarding conditions of confinement at SATF. Upon Plaintiff’s return from court, defendants

24

Correctional Officer (“C/O”) F. Padilla and C/O Sidney Knight approached Plaintiff, threatened him

25

with retaliation for having taken the CDCR to court, and cautioned him to go easy on the CDCR

26

witnesses.

27

///

28

///
2

1

On February 8, 2005, defendants C/O Padilla and C/O McGuirt demoted Plaintiff from a paid

2

position on the yard crew to a temporary non-paid position, in retaliation for his court action against the

3

CDCR. Plaintiff filed a grievance against C/O Padilla and C/O McGuirt for the demotion.

4

On March 2, 2005, defendants C/O Padilla and C/O McGuirt filed a false Rules Violation Report

5

(“RVR”) against Plaintiff, as further retaliation for Plaintiff’s court action and his grievance about the

6

demotion.

7

On May 18, 2005, defendant C/O McGuirt escorted Plaintiff to the Reception and Release area

8

to access Plaintiff’s stored legal materials. McGuirt told Plaintiff he should refrain from addressing

9

grievances to the sergeant or suffer the consequences. This was in retaliation for Plaintiff discussing a

10
11
12

pending administrative appeal with Sergeant Sekula (not a defendant).
On July 15, 2005, defendant C/O Knight fabricated a RVR against Plaintiff, at the behest of
defendant McGuirt, in retaliation for Plaintiff’s court case and grievances.

13

On August 14, 2005, defendant C/O F. Ramirez terminated Plaintiff’s visit with his mother for

14

no valid reason. Plaintiff and his mother both filed grievances against C/O Ramirez. C/O Ramirez

15

immediately retaliated by filing a false RVR against Plaintiff.

16

On September 2, 2005, defendants C/O W. W. Williams, Lieutenant (“Lt.”) W. S. Wadkins, CCII

17

L. Smart, Captain R. Hansen, Sergeant S. Smith, and C/O W. Gardner segregated Plaintiff because of

18

false allegations by a confidential informant. C/O Williams and the informant wrote a false RVR. Lt.

19

Wadkins prepared a lock-up order, and Captain Hansen ordered the segregation and threatened Plaintiff,

20

while referring to Plaintiff’s history of filing grievances as justification for the segregation. Defendant

21

CCII L. Smart, Plaintiff’s counselor, acted in concert with the other defendants to segregate Plaintiff and

22

made loud references about Plaintiff such as “We got the 602 King,” referring to the CDC 602 inmate

23

appeals forms filed by Plaintiff.

24

Between September 2, 2005 and September 15, 2005, defendants C/O W. S. Wadkins, C/O S.

25

Boos, C/O R. Huise, and Lt. R. Tolson falsely asserted that multiple confidential sources had caused

26

Plaintiff’s segregation, when in fact the segregation was caused by one uncorraborated source. Lt.

27

Tolson reviewed the segregation order, further obscuring the fact that there was only one confidential

28

source. Captain Hansen assigned defendant C/O Knight as Plaintiff’s investigative employee, even
3

1

though Plaintiff had filed a grievance against Knight. On September 6, 2005, Hansen recused himself

2

from reviewing Plaintiff’s segregation order due to Plaintiff’s claim of bias. However, Hansen later

3

served on the Institutional Classification Committee (“ICC”) that decided to retain Plaintiff in

4

segregation.

5

On September 15, 2005, at the ICC hearing, defendant CCII Smart presented the case for

6

Plaintiff’s retention in segregation to ICC members Warden D. Fulks, CCII Arline, and Captain Hansen.

7

Smart was abusive, lied to the committee, and denied Plaintiff the right to address the committee,

8

resulting in Plaintiff’s retention in segregation. The ICC members did not assess the reliability of the

9

confidential information, and the false pretext of multiple sources was used to retain Plaintiff.

10

On November 22, 2005, while in administrative segregation (“Ad-Seg”), Plaintiff received a

11

court order from the Court of Appeals regarding conditions in Ad-Seg. On November 23, 2005, Plaintiff

12

gave the order to defendant C/O D. Jordt to place on file for access to legal services. Within an hour,

13

Plaintiff was informed he was being moved to the ASU, the most restrictive Ad-Seg Unit available in

14

California, which was much worse than Plaintiff’s present segregation. Defendants C/O Jordt and Sgt.

15

C. Munoz effected the transfer, out of retaliation for Plaintiff’s court action at the Court of Appeals.

16

Plaintiff had also filed numerous grievances against defendant Jordt before the transfer.

17

On January 8, 2006, Plaintiff was found not guilty of the RVR that had placed him in segregation

18

since September 2, 2005. Lt. M. A. Baires was the Senior Hearing Officer (“SHO”) who found Plaintiff

19

not guilty. Lt. Baires and Captain Hansen withheld the final disposition of the RVR from January 8,

20

2006 until March 15, 2006, prolonging Plaintiff’s segregation long after he was found not guilty.

21

On February 1, 2006, Lt. Baires prepared a CDC 128 form recommending continued segregation

22

and transfer to another institution for Plaintiff, even though Lt. Baires was the SHO who found Plaintiff

23

not guilty. On March 31, 2006, Lt. Baires prepared a lock-up order to continue Plaintiff’s segregation,

24

recommending a transfer for false reasons.

25

Defendant CCII Arline, Plaintiff’s counselor, failed to schedule Plaintiff’s release from

26

segregation and ignored the directive dated March 3, 2006 to “Return to CSR [Classification Staff

27

Representative] no later than 3/18/06 with status update,” leaving Plaintiff in segregation for no valid

28

reason.
4

1

On April 3, 2006, defendant Captain J. Lais reviewed the lock-up order prepared by Lt. Baires

2

and purposely covered up the fact that no valid reason existed to retain Plaintiff in segregation. Captain

3

Lais denied Plaintiff an investigative employee, witnesses, and documentary evidence, preventing

4

Plaintiff from preparing for the ICC hearing that could release Plaintiff.

5

On April 10, 2006, Plaintiff was taken to an ad hoc ICC hearing before defendants Captain K.

6

Santoro, Captain J. Reynoso, and Chief Deputy Warden Lethel Polk. Based on the CDC 128

7

recommendation and lock-up order prepared by Lt. Baires, and ignoring the not guilty finding, Plaintiff

8

was ordered to be retained in segregation in ASU for ninety more days and transferred to another

9

institution.

10

On May 11, 2006, Plaintiff’s administrative appeal was granted and he was released from

11

segregation to Facility D. The appeal determined that no reason existed for Plaintiff’s retention in

12

segregation and transfer. Plaintiff’s privileges and status were restored by ICC action. Upon Plaintiff’s

13

arrival at Facility D, defendants CCII Smart and C/O Williams ordered Plaintiff to be placed on

14

orientation status, which extended his segregation by fifteen more days. Smart and Williams had no

15

authority to place Plaintiff on orientation status, overriding the ICC’s decision and acting solely in

16

retaliation against Plaintiff.

17

Plaintiff’s total placement in segregation consisted of 267 days.

18

Retaliation Claim

19

“Within the prison context, a viable claim of First Amendment retaliation entails five basic

20

elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of

21

(3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First

22

Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.”

23

Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).

24

III.

MOTION TO COMPEL

25

Plaintiff has filed a motion to compel pursuant to the Court’s order of January 28, 2011, which

26

directed Plaintiff to “file one, all-inclusive motion to compel specifically identifying all the facts and

27

evidence to which Plaintiff believes he is entitled in order to oppose Defendants’ Motion [for Summary

28

///
5

1

Judgment] and to which he has been denied access by Defendants in previous requests for discovery.”

2

(Order, Doc. 193 at 3:19-22.)

3

A.

4

Under Rule 26(b), “[U]nless otherwise limited by court order, the scope of discovery is as

5

follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's

6

claim or defense — including the existence, description, nature, custody, condition, and location of any

7

documents or other tangible things and the identity and location of persons who know of any

8

discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject

9

matter involved in the action. Relevant information need not be admissible at the trial if the discovery

10

appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1).

11

Pursuant to Rule 33, an interrogatory may relate to any matter that may be inquired into under

12

Rule 26(b). Fed. R. Civ. P. 33(a)(2). Pursuant to Rule 34(a), “any party may serve on any other party

13

a request to produce and permit the party making the request . . . to inspect and copy any designated

14

documents . . . which are in the possession, custody or control of the party upon whom the request is

15

served.” Fed. R. Civ. P. 34(a)(1).

Federal Rules of Civil Procedure 26(b), 33(a), 34(a), 36(a), and 37

16

Pursuant to Rule 36, “[a] party may serve on any other party a written request to admit, for

17

purposes of the pending action only, the truth of any matters within the scope of Rule 26(b)(1) relating

18

to facts, the application of law to fact, or opinions about either; and the genuineness of any described

19

documents.” Fed. R. Civ. P. 36(a)(1).

20

Pursuant to Rule 37(a), a party propounding discovery may seek an order compelling disclosure

21

when an opposing party has failed to respond or has provided evasive or incomplete responses. Fed. R.

22

Civ. P. 37(a)(2)(3). Rule 37(a)(2)(B) empowers a propounding party to bring a motion to compel

23

discovery responses “ if a party, in response to a request for inspection submitted under Rule 34, fails

24

to respond that inspection will be permitted as requested or fails to permit inspection as requested, the

25

discovering party may move for ... an order compelling inspection in accordance with the request.” Fed.

26

R. Civ. P. 37(a)(2)(B). An evasive or incomplete disclosure, answer, or response is to be treated as a

27

failure to disclose, answer, or respond.” Fed. R. Civ. P. 37(a)(3). The failure to respond to document

28

requests “may not be excused on the ground that the discovery sought is objectionable unless the party
6

1

failing to act has a pending motion for protective order.” Fed. R. Civ. P. 37(d). It is well established

2

that a failure to object to discovery requests within the time required constitutes a waiver of any

3

objection.” Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir.1992) (citing

4

Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir.1981)). The moving party bears the burden of

5

demonstrating “actual and substantial prejudice” from the denial of discovery. See Hallett v. Morgan,

6

296 F.3d 732, 751 (9th Cir. 2002) (citations omitted.).

7

B.

8

Plaintiff moves the Court for an order compelling Defendants to respond to four specific requests

9

for discovery. First, Plaintiff seeks the exact date on which defendant C/O F. Ramirez concluded her

10

employment with SATF. Second, Plaintiff seeks copies of documents pertaining to the role of J. Garza

11

in Plaintiff’s placement in segregation on September 2, 2005. Third, Plaintiff seeks copies of all CDC

12

114A-1 Forms, also known as CDC114 Segregation Log Books, pertaining to Plaintiff’s segregation at

13

SATF from September 2, 2005 until May 11, 2006. Fourth, Plaintiff seeks information and copies of

14

documents pertaining to the Program Status Report (“PSR”) prepared by defendant Lt. Baires on August

15

26, 2005.

Plaintiff’s Motion to Compel

16

Plaintiff also requests the Court to “explore all discovery requested by Plaintiff that was not

17

adequately responded to, correct the fallacies, and issue[] all just orders to allow Plaintiff to properly

18

prosecute this action.” (Motion to Compel (“Pltf’s Motion”), Doc. 203 at 59-60.) Plaintiff argues that

19

the Court prevented him from obtaining any discovery because his prior motions to compel were denied

20

as moot and he was ordered to file one, all-inclusive motion. Plaintiff also argues that Defendants were

21

evasive in all discovery.

22

C.

23

The Court shall not address Plaintiff’s prior motions to compel, explore all of the discovery

24

requested by Plaintiff in this action, or address Plaintiff’s general complaints that Defendants were

25

evasive in all discovery. On March 30, 2010, the Court denied all of Plaintiff’s prior pending motions

26

to compel as moot. (Doc. 165.) Plaintiff’s motion to compel filed on September 13, 2010 is also moot

27

in light of the Court’s order of January 28, 2011. (Doc. 187.) The Court’s order of January 28, 2011

28

ordered Plaintiff to file “one, all-inclusive motion to compel specifically identifying all the facts and

Discussion

7

1

evidence to which Plaintiff believes he is entitled in order to oppose Defendants’ Motion [for Summary

2

Judgment] and to which he has been denied access by Defendants in previous requests for discovery.”

3

(Order, Doc. 193 at 3:20-22.) The Court advised Plaintiff “not [to] merely refer to previous motions or

4

previously-denied motions to compel.” (Id. at 3:5-6.) Therefore, the only motion to compel now

5

pending is Plaintiff’s all-inclusive motion filed March 1, 2011, and the Court shall only address the four

6

specific requests for discovery identified in the all-inclusive motion.

7

1.

Request for Defendant C/O F. Ramirez’ Dates of Employment

8

Plaintiff requests an order compelling defendant C/O F. Ramirez to provide him with the exact

9

date on which Ramirez concluded her employment with SATF. Plaintiff asserts that he requested this

10

information in his Interrogatories to defendant F. Ramirez, Set One, No. 9 and Set Two, Nos. 1 & 2, and

11

received inadequate responses. Plaintiff contends that this evidence will enable him to present a genuine

12

issue of material fact in opposition to Defendants’ Motion for Summary Judgment with respect to

13

defendants Arline, Baires, Lais, Santoro, Reynoso and Polk.

14

Set One, Interrogatory 9.

15
16
17
18

"State the date of the commencement of your employment at
the California Substance Abuse Treatment Facility and State
Prison (CSATF-SP) at Corcoran, and the date on which you
concluded your employment at said prison. If for some reason
you terminated your employment with the CSATF-SP, and
subsequently returned to said prison please explain."
(Pltf’s Motion, Doc. 203 at 79 (Exh. 3.))2

Defendant’s Response.

“Responding party objects to this interrogatory
as seeking information protected by California
Evidence Code section 1043, California Penal
Code section 832.7, and the federal and state
constitutional right to privacy. Further, the
interrogatory is compound.”
(Id. at 90 (Exh. 4.))

19
20
21
22

Set Two, Interrogatory 1.

23
24
25
26

"State the date that you concluded your employment at the
California Substance Abuse Treatment Facility and State
Prison (CSATF-SP) at Corcoran. Plaintiff’s Interrogatory
Number 1 is based on the fact that on May 11, 2006, Plaintiff
was released from Administrative Segregation back to Facility
D, at CSATF. (See ‘STATEMENT OF UNDISPUTED FACTS
IN SUPPORT OF DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT’, DUF # 270, which states, ‘On or
around May 11, 2006, the ICC elected to release Marti to

27
2

28

W hen the pagination used by a party in a document differs from the pagination used by the Court’s electronic filing
system, the Court uses the pagination of the Court’s electronic filing system.

8

1

Facility D and keep him at SATF. Marti was satisfied with the
decision at that time. (Ex.Z(GatlingDecl.), Ex.2 at 86:16-21.)’)
and the Attached Exhibit A to this document, which is a true
and correct copy of the CDC-128 G, dated 5-11-06, ‘ICC/ADSEG CLASSIFICATION’ Chrono that states in relevant part,
‘This recorder [R. Gomez] was informed the officer [F.
Ramirez] has since transferred to another institution (refer to
confidential 128 B dated May 11, 2006). There are no other
issues that warrant retention in ASU.’”
(Id. at 179-80 (Exh. 14.))

2
3
4
5
6

Defendant’s Response.

“I am in receipt of your . . . ‘Second Set of
Interrogatories to Defendant F. Ramirez” . . .
dated August 25, 2010. Discovery in this matter
has long since closed. Accordingly, I will not be
responding to your discovery requests.”
(Id. at 192 (Exh. 16.))

7
8
9
10

Set Two, Interrogatory 2.

11
12

"If the date that you concluded your employment at California
Substance Abuse Treatment Facility and State Prison (CSATFSP) at Corcoran, is a different date than the date of your last
day of work at CSATF-SP, please state the last date that you
worked at CSATF-SP.”
(Id. at 180 (Exh. 14).)

13
Defendant’s Response.

16

“I am in receipt of your . . . ‘Second Set of
Interrogatories to Defendant F. Ramirez” . . .
dated August 25, 2010. Discovery in this matter
has long since closed. Accordingly, I will not be
responding to your discovery requests.”
(Id. at 192 (Exh. 16.))

17

Defendant argues that defendant C/O F. Ramirez’ dates of employment are protected by

18

California Evidence Code section 1043, California Penal Code section 832.7, and the federal and state

19

constitutional right to privacy. Plaintiff argues that this is not privileged information, as shown by

20

defendant Captain Hansen’s disclosure of his last day at SATF and disclosure of the name of the prison

21

to which he transferred. (Id. at 243 ¶27 (Exh. 25.))

14
15

22

Section 1043 of the California Evidence Code requires a party seeking discovery of peace or

23

custodial officer personnel records to file a motion with the appropriate court identifying the discovery

24

sought, the party seeking discovery, the officer whose records are sought, and the agency which has

25

custody and control of the records, along with an affidavit showing good cause for the discovery.

26

Cal.Evid.Code § 1043.

27

Section 832.7 of the California Penal Code provides, “Peace officer or custodial officer personnel

28

records and records maintained by any state or local agency . . ., or information obtained from these
9

1

records, are confidential and shall not be disclosed in any criminal or civil proceeding, [with some

2

exceptions].” Cal.Penal Code § 832.7.

3

“Questions of privilege that arise in the course of the adjudication of federal rights are ‘governed

4

by the principles of the common law as they may be interpreted by the courts of the United States in the

5

light of reason and experience.’” United States v. Zolin, 491 U.S. 554, 562, 109 S.Ct. 2619, 2625 (1989)

6

(quoting Federal Rule of Evidence 501). Despite claims of privilege, personnel files are discoverable

7

in federal question cases. Garrett v. City and County of San Francisco, 818 F.2d 1515, 1519 n. 6 (9th

8

Cir. 1987) (citations omitted). While this Court may give some weight to privacy rights protected by

9

state statutes, the “ultimate responsibility for deciding how much weight to ascribe to such interests, and

10

how that weight compares with the significance of competing interests, must reside with the federal

11

courts.” Kelly v. City of San Jose, 114 F.R.D. 653, 656 (N.D.Cal. 1987).

12

Defendant’s objection is overruled. The Court will allow Plaintiff to discover the exact dates

13

of defendant C/O Ramirez’ employment at SATF. In this instance, Defendant Ramirez’ interest in

14

keeping her employment dates confidential is outweighed by Plaintiff’s right to discovery of relevant

15

evidence. Defendants’ Motion for Summary Judgment is based in part on the assertion that their

16

decision to continue Plaintiff’s detention in Ad-Seg was based on his danger to the safety and security

17

of inmates, staff members, and the institution, and not on retaliation against Plaintiff. (MSJ, Doc. 173.)

18

Defendant Ramirez’ employment dates are relevant to disprove that Defendants’ action in retaining

19

Plaintiff in Ad-Seg and recommending Plaintiff’s transfer reasonably advanced a legitimate correctional

20

goal after defendant F. Ramirez was no longer working at SATF. Defendant F. Ramirez shall be

21

required to serve upon Plaintiff a response to Plaintiff’s Interrogatories, Set One, Number 9. Defendant

22

F. Ramirez shall provide Plaintiff with the date of the commencement of her employment at SATF, and

23

the date on which she concluded her employment at SATF. Defendant F. Ramirez shall also provide

24

Plaintiff with an explanation if for some reason she terminated her employment with SATF and

25

subsequently returned to said prison. No objections are permitted.

26

2.

Request for Documents Pertaining to J. Garza’s Role

27

Plaintiff requests an order compelling Defendants to produce copies of all documents pertaining

28

to the role of J. Garza in Plaintiff’s placement in segregation on September 2, 2005. Plaintiff asserts that
10

1

Requests 2 and 17 of his First Request for Production of Documents should have elicited this

2

information, but Defendants failed to provide it and instead “ambushed” Plaintiff by revealing

3

information about J. Garza in the Motion for Summary Judgment.

4

First Request, No. 2.

5
6
7
8

"All written statements, originals or copies, identifiable as
reports pertaining to plaintiff made by any and all defendants,
and any and all prison and civilian employees or the California
Department of Corrections and Rehabilitation, and any and all
prisoner witnesses, including any and all prisoners acting as
confidential informants pertaining to any and all incidents,
investigations, or allegations made against plaintiff, including
but not limited to plaintiff’s stay at the California Substance
Abuse Treatment Facility.”
(Pltf’s Motion, Doc. 203 at 130 (Exh. 9.))

9
Defendants’ Response.

“Responding Parties object to this request for
production on the grounds that it is overbroad
and not reasonably calculated to lead to the
discovery of admissible evidence, because it
seeks documents not pertinent to the subject
matter of this lawsuit. Responding Parties also
object on the grounds that it calls for production
of confidential documents covered by the official
information privilege. Without waiving these
objections, Responding Parties have produced
all documents responsive to this request in their
possession, custody, and control in response to
request for production of documents 1.”
(Id. at 144 (Exh. 10.))

10
11
12
13
14
15
16
17
18
19
20
21

First Request, No. 17.

"All documents that evidence, mention, construe, or refer to the
segregation of plaintiff on 9/2/05, and the rules violation report
prepared by defendant W.W. Williams, and the reports by
confidential informants, reports of multiple sources, reviews of
segregation orders, hearings, investigative reports, reports by
the committee held on 9/15/05, assessments of confidential
reports, and any and all documents pertaining to the period of
administrative segregation and rules violation reports
commenced on 9/2/05.”
(Id. at 136 (Exh. 9.))

22
Defendants’ Response.

“Responding parties object to this request for
production on the grounds that it is vague and
ambiguous as to the meaning of the terms
‘reports of multiple sources’ and ‘any and all
documents pertaining to the period of
administrative segregation and rules violation
reports commenced on 9/2/05.’ Responding
Parties also object on the grounds that the
request calls for documents covered by the
official information privilege. Without waiving
these objections, Responding Parties produce all
responsive documents in their possession,

23
24
25
26
27
28
11

1
2

custody, and control as Bates-stamped document
D00001.”
(Id. at 151 (Exh. 10.))

3

Plaintiff contends that he requires these documents to ascertain that Defendants are not hiding

4

information from him. Plaintiff asserts that when he received Defendants’ Motion for Summary

5

Judgment, he discovered therein that J. Garza and defendant Williams had both prepared the

6

Confidential Memorandum to effect his segregation. Plaintiff was not aware, until reviewing the Motion

7

for Summary Judgment, that J. Garza was involved. Plaintiff explains that J. Garza is the person who

8

on May 31, 2006 had other confidential information that Plaintiff made another threat, this time to C/O

9

Williams, and Garza placed Plaintiff in Ad-Seg again. This is the subject of Plaintiff’s second lawsuit

10

in this Court, 1:08-cv-00653, Marti v. Baires. Plaintiff claims that this “Garza” factor closes the ties

11

between the two civil rights actions. Plaintiff maintains that Defendants failed to disclose all the

12

documents pertaining to his segregation. Plaintiff argues that because Defendants failed to disclose

13

Garza’s participation until the Motion for Summary Judgment, then Defendants must be hiding other

14

information he asked for. Plaintiff argues that evidence about J. Garza will enable him to present a

15

genuine issue of material fact in opposition to Defendants’ motion for summary judgment, by showing

16

causal connections of Defendants to prove retaliatory actions.

17

Defendants respond that Plaintiff already has in his possession the relevant documents pertaining

18

to his Ad-Seg placement on September 2, 2005, and that tying two civil rights cases together is not the

19

purpose of Rule 56(d). Defendants argue that Plaintiff has not explained how the “Garza” factor is

20

necessary to adequately oppose the Motion for Summary Judgment.

21

The Court sustains Defendants’ objections that Plaintiff’s Requests 2 and 17 are vague,

22

overbroad, and ambiguous. The Court shall not require Defendants to respond to a fishing expedition

23

by Plaintiff based on speculation that Defendants possess information they have not disclosed.

24

Moreover, J. Garza is not a defendant to this action, and Plaintiff has not sufficiently explained how the

25

“Garza” factor, or tying his two cases together, is relevant to oppose the Motion for Summary Judgment.

26

Defendants shall not be required to produce additional documents in response to these requests.

27

///

28

///
12

1

3.

Request for Production of Segregation Log Books

2

Plaintiff requests all CDC 114A-1 Forms, also known as CDC114 Segregation Log Books,

3

pertaining to Plaintiff’s segregation at SATF from September 2, 2005 until May 11, 2006, and his

4

segregation beginning on May 31, 2006. Plaintiff asserts that he requested this information in Requests

5

5, 17, and 19 of his First Request for Production of Documents, and Request 2 of his Third Request for

6

Production of Documents, and received inadequate responses.

7

First Request, No. 5.

8
9
10
11
12

"All documents that evidence, mention, or refer to plaintiff’s
conduct or disciplinary history, at the California Substance
Abuse Treatment Facility or at any other prison, including but
not limited to plaintiff’s placement in any administrative
segregation units. All records, logs, or any and all segregation
housing units’ records, including but not limited to any and all
CDC 114 Logs prepared pertaining to plaintiff’s segregation
periods at the California Substance Abuse Treatment Facility
at Corcoran that are in the possession, custody or control of
defendants or any other prison or civilian employees or the
California Department of Corrections and Rehabilitation.”
(Pltf’s Motion, Doc. 203 at 131-132 (Exh. 9.))

13
Defendants’ Response.

“Responding parties object to this request for
production on the grounds that it is overbroad
and not reasonably calculated to lead to the
discovery of admissible evidence, because it
seeks documents not pertinent to the subject
matter of this lawsuit. Without waiving these
objections, and after a diligent search,
Responding Parties do not have possession
custody or control of documents responsive to
this request.”
(Id. at 145 (Exh. 10.))

14
15
16
17
18
19
First Request, No. 17.
20
21
22
23
24
25

"All documents that evidence, mention, construe, or refer to the
segregation of plaintiff on 9/2/05, and the rules violation report
prepared by defendant W.W. Williams, and the reports by
confidential informants, reports of multiple sources, reviews of
segregation orders, hearings, investigative reports, reports by
the committee held on 9/15/05, assessments of confidential
reports, and any and all documents pertaining to the period of
administrative segregation and rules violation reports
commenced on 9/2/05.”
(Id. at 136 (Exh. 9.))

Defendants’ Response.

“Responding parties object to this request for
production on the grounds that it is vague and
ambiguous as to the meaning of the terms
‘reports of multiple sources’ and ‘any and all
documents pertaining to the period of
administrative segregation and rules violation
reports commenced on 9/2/05.’ Responding

26
27
28
13

1

Parties also object on the grounds that the
request calls for documents covered by the
official information privilege. Without waiving
these objections, Responding Parties produce all
responsive documents in their possession,
custody, and control as Bates-stamped document
D00001.”
(Id. at 151 (Exh. 10.))

2
3
4
5
First Request, No. 19.
6
7
8
9
10
11
12
13

"All documents that evidence, mention, construe, or refer to the
rules violation report hearing held on 1/08/06 by defendant
M.A. Baires, including but not limited to the CDC 114 Log for
plaintiff, and any and all other entries made by any prison or
civilian employee including but not limited to the Log entries
made by defendant M.A. Baires. This request includes the
entries made by all prison employees working in ASU on 1-0806 on the date said hearing was held for plaintiff. All
documents prepared by M.A. Baires including but not limited
to any documents prepared on 2-1-06, and 3-31-06, these
documents should include but not be limited to any CDC-128s,
CDC-114 Ds, encompassing all aspects of plaintiff’s
segregation that started on 9-2-05.”
(Id. at 137 (Exh. 9.))

Defendants’ Response.

“Responding Parties object to this request for
production on the grounds that it is overbroad,
unduly burdensome, vague and ambiguous.
Without waiving these objections, Responding
Parties produce those non-confidential,
responsive documents in their possession,
custody, and control as Bates-stamped document
E00001.”
(Id. at 152 (Exh. 10.))

14
15
16
17
18

Third Request, No. 2.

19
20
21
22
23
24

"Produce the complete CDC 114A-1 Forms (Inmate
Segregation Profile), also known as ‘CDC114 Segregation Log
Book’ for Plaintiff’s segregated period commencing on
September 2, 2005 to and including May 11, 2006. Said CDC
Forms 114A-1 (Inmate Segregation Profile) are described as
containing at least records of Plaintiff’s committee’s actions
and decisions by Defendant R. HANSEN in his ‘Declaration of
R. Hansen in Support of Defendants’ Motion for Summary
Judgment’ at ¶ 16, and dated June 30, 2010. (stating in
relevant part ‘My role [Defendant R. HANSEN’S] on this
particular committee [9/15/2005] was to record and document
the committee’s actions and decision on CDC 114A-1 (Inmate
Segregation Profile....’).”
(Id. at 186-87 (Exh. 15.))

25
Defendants’ Response.

“I am in receipt of your . . . ‘Third Request for
Production of Documents, First Post Service of
Defendants’ Motion for Summary Judgment,’
dated August 25, 2010. Discovery in this matter

26
27
28

///
14

1
2

has long since closed. Accordingly, I will not be
responding to your discovery requests.”
(Id. at 192 (Exh. 16.))

3

Plaintiff asserts that § 3344(b) of the California Code of Regulations proves that the Log Books

4

exist, because it requires that a separate Administrative Segregation Log, CDC Form 114, must be

5

maintained for each segregation, from reception to release, entered on the form in chronological order.

6

Defendants’ objections are sustained with respect to documents concerning the May 31, 2006

7

segregation. Documentation of Plaintiff’s May 31, 2006 segregation is not relevant to Plaintiff’s claims

8

in this action. This action arises from Plaintiff’s allegations that Defendants retained him in Ad-Seg at

9

SATF from September 2, 2005 to May 11, 2006. Plaintiff admits that his segregation beginning on May

10

31, 2006 is the subject of another lawsuit, and he not shown how tying his two cases together will assist

11

in his opposition to the Motion for Summary Judgment. Therefore, discovery of documents concerning

12

Plaintiff’s later segregation, beginning on May 31, 2006, are not relevant to oppose Defendants’ Motion

13

for Summary Judgment in this action. The Court shall not compel Defendants to produce documents that

14

are not relevant.

15

With respect to the Administrative Segregation Log for Plaintiff’s segregation from September

16

2, 2005 to May 11, 2006, Plaintiff is entitled to such documentation if it exists. Defendants’ argument

17

that Plaintiff has all of the documentation he needs overlooks the possibility that other documentation

18

of the September 2, 2005 segregation may contain information relevant to support Plaintiff’s argument,

19

in opposition to the Motion for Summary Judgment, that his prolonged segregation did not reasonably

20

advance a legitimate correctional goal.

21

Defendants responded to Plaintiff’s Request 5 of the First Request for Production of Documents

22

that “after a diligent search, Responding Parties do not have possession custody or control of documents

23

responsive to this request.” (Pltf’s Motion, Doc. 203 at 145 (Exh. 10.)) The Court finds it unlikely that

24

after a diligent search, Defendants were unable to locate any documents in response to Plaintiff’s request

25

for “[a]ll documents that evidence, mention, or refer to plaintiff’s conduct or disciplinary history, at the

26

California Substance Abuse Treatment Facility or at any other prison, including but not limited to

27

plaintiff’s placement in any administrative segregation units.” (Id. at 131-132 (Exh. 9.)) The Court

28

agrees that Plaintiff’s requests are overbroad and often vague. However, Plaintiff clearly requested “the
15

1

complete CDC 114A-1 Forms (Inmate Segregation Profile), also known as ‘CDC114 Segregation Log

2

Book’ for Plaintiff’s segregated period commencing on September 2, 2005 to and including May 11,

3

2006.” (Id. at 186-87 (Exh. 15.)) Under Rule 34(a), Plaintiff has the right to request from any party

4

production of documents "which are in the possession, custody or control of the party upon whom the

5

request is served.” Fed. R. Civ. P. 34(a)(1). Although Defendants cannot be compelled to produce an

6

item that is not within their possession, custody, or control, Defendants are advised that “[a] party need

7

not have actual possession of documents to be deemed in control of them.” Clark v. Vega Wholesale

8

Inc., 181 F.R.D. 470, 472 (D.Nev. 1998) quoting Estate of Young v. Holmes, 134 F.R.D. 291, 294

9

(D.Nev. 1991). “A party that has a legal right to obtain certain documents is deemed to have control of

10

the documents.” Clark 181 F.R.D. at 472. Plaintiff correctly notes that Title 15, § 3344(b) of the

11

California Code of Regulations holds that a “separate record will be maintained for each inmate assigned

12

to administrative segregation, . . . compiled on CDC Form 144-A, Detention/Segregation Record . . .

13

[containing] all significant information relating to the inmate during the course of segregation, from

14

reception to release . . . in chronological order.” Cal.Code Regs., tit. 15, § 3344(b).

15

Based on the foregoing, Defendants shall be required to provide Plaintiff with a copy of the

16

Detention/Segregation Record kept pursuant to Cal.Code Regs., tit. 15, § 3344(b), for Plaintiff’s

17

detention in segregation from September 2, 2005 to May 11, 2006 at SATF, within forty-five days. No

18

objections are permitted. If the document contains confidential information, Defendants shall instead

19

submit the document to the Court under seal for in camera review, and notify Plaintiff that they have

20

done so, within forty-five days. If Defendants cannot produce a copy of the document, they must explain

21

in writing why they are unable to do so.

22

4.

Information Pertaining to Program Status Report of August 26, 2005

23

Plaintiff requests an order compelling Defendants to produce any documents related to a threat

24

to assault a Correctional Officer, of which C/O A. Davila was notified on August 26, 2005, documented

25

by a Program Status Report (PSR) prepared by defendant Baires on August 26, 2005. Plaintiff believes

26

the August 26, 2005 PSR may be related to his segregation of September 2, 2005, due to similar dates

27

and descriptions of the incidents. Both concern a threat of assault on a Correctional Officer by inmates

28

in the Facility D gymnasium, made on August 25 or 26, 2005.
16

1

Specifically, Plaintiff requests documentation of interviews conducted on or about August 29,

2

2005, as ordered by defendant Baires in the PSR, and further responses to his First Request for

3

Admissions to Defendant Baires and First Set of Interrogatories to Defendant M.A. Baires. Plaintiff

4

claims that defendant Baires’ prior responses were evasive. Plaintiff claims that information about this

5

threat to a Correctional Officer is necessary to adequately oppose the Motion for Summary Judgment,

6

because C/O A. Davila was defendant C/O Williams’ partner, and it was defendant C/O Williams who

7

received confidential information that on August 25, 2005, Plaintiff made threats to kill defendant F.

8

Ramirez. Thus Plaintiff maintains that the facts of the August 26, 2005 threat are closely related to the

9

alleged threat that placed Plaintiff in segregation on September 2, 2005.

10

Defendants argue that Plaintiff already has in his possession the relevant documents pertaining

11

to his Ad-Seg placement on September 2, 2005, and Plaintiff fails to explain how evidence of a prior

12

threat is necessary to adequately oppose Defendants’ Motion for Summary Judgment. Defendants

13

provide a list of twenty documents related to Plaintiff’s segregation which are in Plaintiff’s possession.

14

(Opp’n, Doc. 207 at 4-5, ¶3.) Defendants also argue that the information requested by Plaintiff is

15

confidential.

16

This case arises from Plaintiff claims that he was placed in Ad-Seg on September 2, 2005, based

17

on a false RVR. Defendants argue that Plaintiff was placed in Ad-Seg after defendant Williams received

18

evidence on September 2, 2005 of a possible threat made by Plaintiff against defendant F. Ramirez.

19

Plaintiff has not demonstrated how evidence of a prior threat, even if related to the threat that led to his

20

placement in Ad-Seg, will assist him in defending against the Motion for Summary Judgment.

21

Therefore, Defendants shall not be required to provide further responses to Plaintiff’s discovery

22

requests concerning the PSR of August 26, 2005.

23

IV.

CONCLUSION

24

Based on the foregoing, it is HEREBY ORDERED that:

25

1.

Plaintiff’s motion to compel, filed March 1, 2011, is GRANTED IN PART;

26

2.

Within forty five (45) days of the date of service of this order, defendant C/O F. Ramirez

27

shall provide a written response to Plaintiff’s Interrogatories, Set One, No. 9, as

28

instructed by this order;
17

1

3.

Within forty five (45) days of the date of service of this order, Defendants shall provide

2

copies of the Detention/Segregation Record kept pursuant to Cal. Code Regs., tit. 15, §

3

3344(b), for Plaintiff’s detention in segregation from September 2, 2005 to May 11,

4

2006, as instructed by this order;

5

4.

6

Defendants’ failure to comply with this order may result in the imposition of sanctions
deemed appropriate by this Court; and

7

5.

8

Discovery in this action is now closed, except for the limited purpose of resolving
Plaintiff’s motion to compel as instructed by this order.

9
10

IT IS SO ORDERED.

11

Dated:
6i0kij

August 30, 2011

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
18