Buchanan v. Santos et al

Filing 46

ORDER Striking Motion 29 ; ORDER Granting Plaintiff Thirty Days in Which to File Motion to Compel, signed by Magistrate Judge Gary S. Austin on 9/30/2010. Motion due 11/2/2010. (Verduzco, M)

(PC) Buchanan v. Santos et al

Doc. 46

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff is a state prisoner proceeding pro se in this civil rights action. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. Pending before the court is Plaintiff's motion to compel the production of peace officer personnel records. This action proceeds on the original complaint against defendant A Santos on Plaintiff's claim of excessive force. Plaintiff names the following defendants: Collins; Yates; Garrison; Mendoza; Duty; Reyes; McBryde; Santos. On June 8, 2009, an order was entered, dismissing defendants Collins, Yates, Garrison, Duty, Reyes and McBryde. On June 8, 2010, an order was entered, granting in part and denying in part Defendants' motion to dismiss. Plaintiff's claims against Defendant Mendoza were dismissed. This action proceeds only against Defendant A. Santos on Plaintiff's claim of excessive force. WHITTIER BUCHANAN, ) ) Plaintiff, ) ) v. ) ) A. SANTOS, ) ) Defendant. ) ____________________________________) NO. 1:08-cv-01174 -AWI-GSA-PC ORDER STRIKING MOTION (Doc. 29) ORDER GRANTING PLAINTIFF THIRTY DAYS IN WHICH TO FILE MOTION TO COMPEL IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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Plaintiff seeks discovery "of all information in Defendants' personnel files that relate to prior use of excessive force, ethnic or racial bias, falsifying information, or planting evidence." (Notice of Motion 1:17-22.) Plaintiff specifically titles his motion as "Notice of Motion and Motion to Discover Files Via Pitchess Motion." A Pitchess motion relates to criminal proceedings and is misplaced in this federal civil action. See People v. Mooc, 26 Cal.4th 1216, 1219-20 (2001) (a Pitchess motion allows a criminal defendant to compel discovery of evidence from arresting officer's personnel file). Plaintiff must seek discovery in compliance with the Federal Rule of Civil Procedure 34, which requires Plaintiff to serve Defendants with a request for the production of documents. If Defendants object to the request and Plaintiff believes the documents are discoverable, Plaintiff's recourse is to file a motion to compel. Plaintiff may not file a request for documents from Defendants' personnel files directly with the Court, and his inappropriate Pitchess motion shall be stricken from the record. The court notes that discovery cut-off date of May 17, 2010, has passed. The court will re-open discovery for the limited purpose of filing a motion to compel the production of peace officer records. Plaintiff is advised that should the court grant the motion, any records will be forwarded to the court under seal for in camera review. Accordingly, IT IS HEREBY ORDERED that: 1. Plaintiff's Pitchess motion is stricken from the record. 2. Discovery is re-opened for the limited purpose of filing a motion to compel the production of documents. Such motion shall be filed within thirty days of the date of service of this order.

IT IS SO ORDERED. Dated: 6i0kij

September 30, 2010

/s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE

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