Fearence v. Schulteis et al

Filing 87

ORDER DENYING Pitchess 86 Motion signed by Magistrate Judge Gary S. Austin on 8/28/2014. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAQUES FEARENCE,

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Plaintiff,

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vs.

1:08-cv-00615-LJO-GSA-PC
ORDER DENYING PITCHESS
MOTION
(Doc. 86.)

L. L. SCHULTEIS, et al.,

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Defendants.

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I.

BACKGROUND

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Jaques Fearence ("Plaintiff") is a prisoner proceeding pro se in this civil rights action

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pursuant to 42 U.S.C. ' 1983. This case now proceeds on the Third Amended Complaint filed

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by Plaintiff on November 22, 2013, against defendants Hopkins and Busby for use of excessive

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force; against defendants Hopkins, Davis, Duffy, and Beckett for failure to protect Plaintiff;

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and against defendants Hopkins, Busby, Davis, Duffy, and Beckett for conspiracy to use

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excessive force (collectively, “Defendants”). (Doc. 64.)

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This case is currently in the discovery phase, pursuant to the Court’s amended

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scheduling order issued on May 8, 2014. (Doc. 85.) On August 27, 2014, Plaintiff filed a

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Pitchess motion. (Doc. 86.)
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II.

PITCHESS MOTION

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Plaintiff has filed a Pitchess motion pursuant to Evidence Code § 1043 and Penal Code

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§ 832.5, “so he can properly utilize his discovery tools.” (Doc. 86 at 1:23-24.) In Pitchess v.

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Superior Court, 522 P.2d 897 (Cal.1974), the California Supreme Court held that a criminal

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defendant is entitled to a law enforcement officer's personnel records if the defendant can show

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the records are necessary character evidence. Under California law, motions for discovery of

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police personnel files are generally referred to as Pitchess motions.

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A Pitchess motion “may be appropriate only if brought by a defendant in the context of

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a state criminal trial, not by a plaintiff in a federal civil rights action.” Turner v. Spence, No.

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CIV S 07–0022 GGH P, 2008 WL 927709, at *9 (E.D.Cal. Apr.4, 2008) (citations omitted).

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Plaintiff's Pitchess motion will be “denied because it is misplaced in this federal civil action.”

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Williams v. Adams, No. 1:05–cv–00124–AWI–SMS PC, 2009 WL 1220311, at *8 (E.D.Cal.

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May 4, 2009).

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The Court advises Plaintiff that the proper mechanism for compelling discovery

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responses from Defendants is a motion to compel.1 The motion presently before the Court

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cannot be construed as a motion to compel. Plaintiff does not clearly describe his attempts to

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obtain the relevant documents directly from Defendants through a proper discovery request and

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does not present any arguments that demonstrate how Defendants' objections to Plaintiff's

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requests were unjustified. Plaintiff’s motion is supported by nothing more than his request that

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the motion be granted “in the name of justice.” (Doc. 86 at 1:23.)

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Plaintiff is advised that discovery is generally a self-executing process. Plaintiff does

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not make discovery requests through the Court. Local Rules 250.2(c), 250.3(c), and 250.4(c).

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Plaintiff must directly serve Defendants with discovery requests, such as document production

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requests that request relevant documents contained in Defendants' personnel files. Federal

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By contrast, a Pitchess motion is a device by which a California criminal defendant may seek
disclosure of a peace officer's personnel records. See City of Santa Cruz v. Municipal Court, 49 Cal.3d 74, 81–
82, 260 Cal.Rptr. 520, 776 P.2d 222 (1989); Pitchess, 11 Cal.3d at 537. The basis for the motion has been
codified into California Penal Code §§ 832.7, 832.8 and California Evidence Code §§ 1043–1045.
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Rules of Civil Procedure 26, 34. Defendants are then required to respond to Plaintiff's

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discovery request by furnishing the requested documents or by raising objections to Plaintiff's

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requests. Federal Rule of Civil Procedure 34(b)(2).

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If the parties are unable to resolve the discovery disputes, Plaintiff may file a motion to

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compel. Federal Rule of Civil Procedure 37(a). Plaintiff is cautioned that filing a motion to

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compel that is not substantially justified may result in an order requiring Plaintiff to pay

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Defendants for the reasonable expenses incurred in opposing Plaintiff's motion, including

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attorney's fees. Federal Rule of Civil Procedure 37(a)(5)(B).

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If Plaintiff chooses to file a motion to compel, Plaintiff is advised that such motion must

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individually address each request made by Plaintiff. Plaintiff may not file a motion to compel

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that generally and vaguely argues that all of Defendants' responses are unjustified. Plaintiff

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must address each request individually by reciting the original request made by Plaintiff and

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reciting the response or objections raised by the Defendants to that request. For each request

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and response being challenged, Plaintiff must present persuasive arguments that demonstrate

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how each objection made by Defendants is not justified. Plaintiff must also attach a copy of his

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original discovery requests and a copy of Defendants' responses to his motion to compel.

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III.

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CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED that Plaintiff=s Pitchess

Motion, filed on August 27, 2014, is DENIED.

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IT IS SO ORDERED.
Dated:

August 28, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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