Cato v. Avila et al

Filing 73

ORDER DENYING 38 and 54 Plaintiff's Discovery Motions without predjudice; ORDER DIRECTING Defendants to Respond within twenty days, signed by Magistrate Judge Michael J. Seng on 08/20/2012. (20) Day Deadline (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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CASE NO. 1:10-cv-0793-AWI-SMS PC

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JAMES CATO, JR.,

ORDER DENYING PLAINTIFF’S
DISCOVERY MOTIONS WITHOUT
PREJUDICE

Plaintiff,

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v.

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T. AVILA, et al.,

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AND
DIRECTING DEFENDANTS TO RESPOND
WITHIN TWENTY DAYS
Defendants.
(ECF Nos. 38 & 54)

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/

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Plaintiff James Cato, Jr. (“Plaintiff”) is a state prisoner proceeding pro se and in
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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
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Plaintiff filed his initial complaint on May 5, 2010, alleging violations of his Eighth
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Amendment right to be free from excessive force. (ECF No. 1.) The Court screened
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Plaintiff’s complaint, found that it stated a cognizable claim, and ordered service. (ECF
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Nos. 11, 14, & 15.) This action is proceeding against Defendants Avila, Kavanaugh,
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Dumont, Rodriguez, Patrick, England, Bueno, Patterson, and Johnson for excessive use
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of force in violation of the Eighth Amendment. (Id.)
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On January 10, 2012, Plaintiff filed a “motion for court order,” which appears to be
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a motion for a subpoena duces tecum to command the Director of California Department
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of Corrections (“CDCR”) to produce various documents and take certain actions. (ECF No.
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38.) On June 22, 2012, Plaintiff filed another motion for a subpoena duces tecum to
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command Connie Gibson, acting warden of Corcoran State Prison, to produce video-

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recordings. (ECF No. 54.) Defendants have not filed oppositions to either motion.

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Plaintiff’s motions are now before the Court

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I.

MOTION FOR DOCUMENTS FROM CDCR

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In his January 10, 2012, motion, Plaintiff asks that the Court 1) issue an order

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compelling the Director of CDCR to allow Plaintiff to correspond confidentially with inmate

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witnesses, 2) order the Director of CDCR to provide Plaintiff with the location of Plaintiff’s

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inmate witnesses, 3) order the Director of CDCR to provide a way for Plaintiff to personally

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interview the inmate witnesses, 4) provide Plaintiff with a private investigator to interview

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the inmate witnesses, 5) order the Director of CDCR to allow Plaintiff to inspect his medical

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files, medical expert reports, and photographic imagery, 6) order the Director of CDCR to

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direct individuals at Corcoran State Prison to provide him with access to the law library at

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least twice a week, and 7) order the Director of CDCR to transport Plaintiff to the United

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States District Court in Fresno, California to use the Court’s law library twice a week. (ECF

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No. 38.) Although Plaintiff uses the word “compel”, it appears he is in fact simply asking

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that the Court authorize a subpoena duces tecum directing a non-party, the Director of

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CDCR, to produce information and take certain actions.

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Subject to certain requirements set forth herein, Plaintiff may be entitled to the

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issuance of a subpoena commanding the production of documents from non-parties. Fed.

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R. Civ. P. 45. A subpoena can be used to command a person to do the following: attend

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and testify; produce designated documents, electronically stored information, or tangible

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things in that person’s possession, custody, or control; or permit the inspection of

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premises. Id. However, the Court will consider granting such a request only if the

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documents sought from the non-party are discoverable, are not equally available to

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Plaintiff, and are not obtainable from Defendants through a request for production of

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documents. Fed. R. Civ. P. 45(c); Fed. R. Civ. P. 34.

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Plaintiff is entitled to seek discovery of any non-privileged matter that is relevant to

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his claims. Fed. R. Civ. P. 26(b)(1). The discovery sought may include information that
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is not admissible as long as it appears reasonably calculated to lead to the discovery of

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admissible evidence. Id.

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Plaintiff’s remaining Eighth Amendment claim arise out of Defendants alleged

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assault on Plaintiff after he was rendered semi-unconscious. Such a claim implicates a use

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of force that was “unnecessary and wanton infliction of pain.” (Jeffers v. Gomez, 267 F.3d

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895, 910 (9th Cir. 2001), a malicious and sadistic use of force to cause harm (Hudson v.

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McMillian, 503 U.S. 1, 9 (1992); see also Oliver v. Keller, 289 F.3d 623, 628 (9th Cir.

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2002). However, not “every malevolent touch by a prison guard gives rise to a federal

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cause of action.” Hudson, 503 U.S. at 9. “The Eighth Amendment's prohibition of cruel

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and unusual punishments necessarily excludes from constitutional recognition de minimis

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uses of physical force, provided that the use of force is not of a sort repugnant to the

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conscience of mankind.” Id. at 9-10 (internal quotations marks and citations omitted).

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Whether force used by prison officials was excessive is determined by inquiring if

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the “force was applied in a good-faith effort to maintain or restore discipline, or maliciously

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and sadistically to cause harm.” Hudson, 503 U.S. at 6-7. The Court must look at the

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need for application of force; the relationship between that need and the amount of force

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applied; the extent of the injury inflicted; the extent of the threat to the safety of staff and

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inmates as reasonably perceived by prison officials; and any efforts made to temper the

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severity of the response. See Whitley, 475 U.S. at 321. The absence of significant injury

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alone is not dispositive of a claim of excessive force. See Wilkens v. Gaddy, ___ U.S. ___,

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___, 130 S. Ct. 1175, 1176-77 (2010).

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Plaintiff’s requests for production relating to such issues in this case can be broken

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into two groups. The first consists of requests for information allowed under Fed. R. Civ.

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P. 45, and the second of requests that the Court order the Director of the CDCR, a non-

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party, to take certain actions. The Court will analyze each group separately.

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The first group includes the following requests: 1) order the Director of CDCR to

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provide Plaintiff with the location of Plaintiff’s inmate witnesses and 2) order the Director

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of CDCR to allow Plaintiff to inspect his medical files, medical expert reports, and
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photographic imagery. Pursuant to the California Code of Regulations, prisoners are

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allowed to correspond with inmates held at state correctional agencies. Cal. Code. Regs.,

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tit. 15 § 3139. Inmates are also allowed to review their own medical files. Id. at § 3370.

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Plaintiff alleges that these requests are relevant to his claims and alleges that he has tried

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to obtain this information through various requests, but has been unsuccessful. (Mot. at

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2-3.) Thus, Plaintiff’s efforts to secure such information appears appropriate under the

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circumstances of this case.

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expenditure of resources as practical for all involved and, if possible, informally. To that

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end, defense counsel shall contact the litigation office at Corcoran State Prison in an

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effort to facilitate the provision to Plaintiff of the current location of Plaintiff’s inmate

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witnesses and Plaintiff’s medical files. Defense counsel shall notify the Court within twenty

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days of the date of service of this Order whether this direction can be complied with and,

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if so, when. If defense counsel fails to so proceed, Plaintiff may serve a Fed. R. Civ. P. 34

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request for the production of same on Defendants. If these avenues prove unsuccessful

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the Court will consider directing the U.S. Marshal to effect service of a records subpoena

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on the Director of CDCR.

Such requests should be dealt with with as minimal

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The second group includes the following requests : 1) issue an order compelling the

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Director of CDCR to allow Plaintiff to confidentially correspond with inmate witnesses, 2)

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order the Director of CDCR to provide a way for Plaintiff to personally interview the inmate

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witnesses, 3) provide Plaintiff with a private investigator to interview the inmate witnesses,

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4) order the Director of CDCR to direct individuals at Corcoran State Prison to provide him

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with access to the law library at least twice a week, and 5) order the Director of CDCR to

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transport Plaintiff to the United States District Court in Fresno, California to use the Court’s

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law library twice a week. These requests are beyond the scope of Fed. R. Civ. P. 45 and

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beyond the scope of the Court’s jurisdiction. The Director is not a party to this litigation.

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Accordingly, these requests must be denied.

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II.

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MOTION FOR VIDEOTAPE FOOTAGE
On June 22, 2012, Plaintiff filed a motion for a subpoena duces tecum on Connie
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Gibson, acting warden of Corcoran State Prison, to produce a copy of the videotape

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footage of the September 5, 2005 incident underlying this action. (Mot., ECF No. 54.)

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Plaintiff had previously requested the information from Defendants, but they objected to

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and denied custody or control of the recordings. (Id. at 2.)

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In responding to discovery requests, Defendants must produce documents which

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are in their “possession, custody or control.” Fed. R. Civ. P. 34(a). Actual possession,

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custody or control is not required, however. “A party may be ordered to produce a

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document in the possession of a non-party entity if that party has a legal right to obtain the

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document or has control over the entity who is in possession of the document. Soto v. City

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of Concord, 162 F.R.D. 603, 620 (N.D. Cal. 1995). As this Court explained in Allen v.

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Woodford, 2007, U.S. Dist. LEXIS 11026, *4-6, 2007 WL 309945, *2 (E.D. Cal. Jan. 30,

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2007) (internal citations and quotations omitted):

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Property is deemed within a party’s possession, custody, or control if the party has

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actual possession, custody, or control thereof or the legal right to obtain the property

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on demand. A party having actual possession of documents must allow discovery

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even if the documents belong to someone else; legal ownership of the documents

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is not determinative. Control need not be actual control; courts construe it broadly

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as the legal right to obtain documents upon demand. Legal right is evaluated in the

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context of the facts of each case. The determination of control is often fact specific.

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Central to each case is the relationship between the party and the person or entity

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having actual possession of the document. The requisite relationship is one where

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a party can order the person or entity in actual possession of the documents to

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release them. This position of control is usually the result of statute, affiliation or

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employment. Control may be established by the existence of a principal-agent

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relationship.

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Here, Defendants attempts to avoid production by contending that they are not in

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possession, custody or control of the requested videotape. The specific facts of this action,

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however, render such an objection highly questionable. By virtue of their employment with
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non-party CDCR, individual Defendants are represented by the Attorney General’s Office.

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It is this Court’s experience that either individual defendants who are employed by CDCR

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and/or the Attorney General can generally obtain documents, such as the videotape at

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issue here, from CDCR by requesting them. If this is the case, then, based on their

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relationship with CDCR, they have constructive control over the requested documents and

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the documents must be produced. See, eg., Mitchell v. Adams, 2009 U.S. Dist. LEXIS

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24289, *24-25, 2009 WL 674348, *9 (E.D. Cal. Mar. 6, 2009) (even though defendant

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warden was sued in his individual capacity, he had constructive control over requested

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documents because he had authority to obtain the requested documents from third party

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CDCR); see also Gray v. Faulkner, 148 F.R.D. 220, 223-224 (N.D. Ind.1992)(requiring

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certification that responding party “have conducted a search for the information reasonably

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available to them through their agents, attorneys, or others subject to their control and have

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determined that the information requested either does not exist or that it has been

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produced.”)

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If Defendants choose to stand on this objection, they must provide factual support

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for the assertion that, in spite of their relationship to CDCR, they do not have possession,

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custody or control of the requested documents. Defendants should also be mindful of the

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fact that, absent production, they will be precluded from using the requested items, or any

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items of this kind, as evidence in support of summary judgment, in opposition to any of

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Plaintiff’s positions, and in any way during trial.

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Defendants stand on this objection and subsequently seek to use the requested item or

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like items, they must, at minimum, supplement their responses, and explain the method

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by which they obtained the documents. Most importantly, they will also be required to

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demonstrate that the prior objection was taken in good faith given that they now have and

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seek to use the requested documents. Fed. R. Civ. P. 26(e)(1).

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III.

Fed. R. Civ. P. 37(c)(1).

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CONCLUSION AND ORDER

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For the reasons set forth herein, it is HEREBY ORDERED that:

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Plaintiff’s motion for the issuance of a subpoena duces tecum commanding
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the Director of the California Department of Corrections and Rehabilitation

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to provide Plaintiff with the location of inmate witnesses and his medical

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records, filed January 1, 2012 (ECF No. 38), is DENIED, without prejudice;
2.

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Plaintiff’s motion for the issuance of a subpoena duces tecum commanding

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the Director of the California Department of Corrections and Rehabilitation

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to allow Plaintiff to correspond with his inmate witnesses and to provide a

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way for Plaintiff to personally interview the inmate witnesses, with a private

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investigator to interview the inmate witnesses, access to the law library at

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least twice a week, transportation for Plaintiff to use the library of the United

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States District Court in Fresno, California, filed January 10, 2012 (ECF No.

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38), is DENIED, without prejudice;
3.

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Defense counsel shall work with the litigation office at Corcoran State Prison

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to facilitate the production of information regarding the location of Plaintiff’s

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inmate witnesses and the review of Plaintiff’s medical file, and notify the

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Court within twenty (20) days whether same will be provided to Plaintiff and

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if so, when; and
4.

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Plaintiff’s motion for a subpoena to direct Connie Gibson, acting warden of

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Corcoran State Prison to produce videotape from September 5, 2005 of the

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underlying incident is DENIED without prejudice; and
5.

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Within twenty (20) days of entry of this Order, Defendants shall provide

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additional factual information regarding whether or not they are able to obtain

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and produce the requested videotape.

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IT IS SO ORDERED.

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Dated:
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August 20, 2012

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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