Woodall v. State of California et al

Filing 114

ORDER DENYING Plaintiff's 107 Motion to Compel signed by Magistrate Judge Dennis L. Beck on 3/29/2012. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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NICK WOODALL,

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CASE NO. 1:08-cv-01948-LJO-DLB PC
Plaintiff,

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v.

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ORDER DENYING PLAINTIFF’S MOTION
TO COMPEL

A. RAYGOZA,

(DOC. 107)
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Defendant.

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/

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Plaintiff Nick Woodall (“Plaintiff”) is a prisoner in the custody of the California

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Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding

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on Plaintiff’s complaint, filed December 22, 2008, against Defendant A. Raygosa for violation of

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the Eighth Amendment.

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On February 21, 2012, Plaintiff filed a motion to compel acting warden R. Lopez, a non-

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party to this action, to comply with a subpoena duces tecum, and moved for sanctions. Doc. 107.

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Acting warden Lopez filed an opposition on March 6, 2012.1 Doc. 109. On March 16, 2012,

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Plaintiff filed his reply. Doc. 111. The matter is submitted pursuant to Local Rule 230(l).

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On March 30, 2011 the Court issued a subpoena duces tecum to be served on acting

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warden Raul Lopez at Corcoran State Prison for the production of documents. Doc. 88. On July

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29, 2011, Plaintiff filed a motion to compel warden Lopez to comply with the subpoena duces

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Acting warden Lopez is represented in this matter by Defendant’s counsel.
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tecum. The Court granted Plaintiff’s July 29, 2011 motion to compel on November 3, 2011.

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Doc. 103. Warden Lopez was ordered to provide further response to Plaintiff’s subpoena duces

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tecum as to seventeen requested documents.

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Plaintiff now contends that warden Lopez provided only one additional response, and

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attached a declaration of no records as to the remaining responses. Pl.’s Mot. 2:11-24. Plaintiff

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complains that the declaration was unsigned. Id. Plaintiff contends that sanctions should be

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imposed for warden Lopez’s contempt of court. Id.

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Warden Lopez contends that he fully complied with the Court’s November 3, 2011 order.
Opp’n 3:19-4:7. Warden Lopez contends that he responded to Plaintiff’s twenty-six discovery

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requests, providing further response to each. Id. Warden Lopez in opposition submits a

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declaration from counsel and litigation coordinator Mary Kimbrell. Opp’n, Irby Decl., Kimbrell

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Decl. Both attest that a supplemental response, the CSP-COR 3A01 Log Book had been

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produced as a supplemental response to Plaintiff’s subpoena duces tecum. Irby Decl. ¶ 2;

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Kimbrell Decl. ¶ 4. Litigation coordinator Kimbrell also submitted a declaration attesting to

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either the non-existence or the inability to locate certain documents. The previous declaration

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was unsigned, but a later, signed copy was included with the opposition. Kimbrell Decl., Exs. A

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and B.

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Plaintiff contends that Request No. 2, the holding cell log, should have been kept

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pursuant to the Department Operations Manual. Pl.’s Reply 2-3. Plaintiff contends that Request

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No. 5, a complete and unredacted crime/incident report package should exist. Id. at 3. Plaintiff

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contends that Requests Nos. 13 and 14, Facility 3A sergeant’s logbook and Facility 3A medical

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clinic’s logbook from September 12 to September 13, 2007, exist because he observed similar

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documents as a clerk to the facility captain. Id. at 3-4.

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The Court does not find cause to grant Plaintiff’s motion. Litigation coordinator

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Kimbrell submitted a declaration under penalty of perjury that the requested documents which

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were not produced could not be found, or did not exist. The Court does not find reason to doubt

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Kimbrell’s declaration. Plaintiff’s insistence that these documents should exist or that he has

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seen similar documents is not sufficient to compel further response. All parties subject to a
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subpoena duces tecum are under an obligation to respond, absent an adequate excuse. See Fed.

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R. Civ. P. 45(e). An adequate excuse to not obey the subpoena would include the inability to

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locate responsive documents. Because warden Lopez has provided an adequate excuse to not

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respond to Plaintiff’s sixteen requests for production of documents, no sanctions will be

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imposed.

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Accordingly, it is HEREBY ORDERED that Plaintiff’s motion to compel, filed February
21, 2012, is denied.
IT IS SO ORDERED.
Dated:
3b142a

March 29, 2012

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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