Johnson v. Cate et al

Filing 118

ORDER DENYING Plaintiff's 99 Request to Reopen Discovery; ORDER DENYING in Part, and GRANTING in Part, Plaintiff's 105 Motion to Compel, signed by Magistrate Judge Michael J. Seng on 1/26/15. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GARRISON JOHNSON,

CASE NO. 1:10-CV-02348-LJO-MJS

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Plaintiff,

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v.

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ORDER DENYING PLAINTIFF’S REQUEST
TO REOPEN DISCOVERY
(ECF NO. 99.)

CATE, et al.,
Defendants.

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ORDER DENYING, IN PART, AND
GRANTING,
IN PART,
PLAINTIFF’S
MOTION TO COMPEL
(ECF NO. 105.)

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I.

PROCEDURAL HISTORY

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Plaintiff is a state prisoner proceeding pro se in this civil rights action under 42

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U.S.C. § 1983. The action proceeds on an equal protection claim against Defendant

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Doran, Inmate Assignment Lieutenant at Kern Valley State Prison.

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Before the Court are Plaintiff’s November 21, 2014 motion to re-open discovery

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(ECF No. 99.) and Plaintiff’s December 11, 2014 motion to compel (ECF No. 105.).

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Defendant opposed the motions (ECF Nos. 104 & 110.), and Plaintiff replied to the

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oppositions (ECF Nos. 109 & 117.). The motions are deemed submitted. Local Rule
230(l).
II.

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Plaintiff seeks to reopen discovery for 60 days to require Defendant to respond to
his request for production of documents, set three, seeking information regarding inmate
Braggs, who Plaintiff believes is an African American inmate that had sexual relations
with the female librarian.1 (ECF No. 99.) Defendant opposes the motion arguing that:
Plaintiff was not diligent in discovering the information through the discovery process;
Plaintiff’s failure to learn of inmate Braggs’ existence until October 2014 does not
constitute good cause for reopening; and, reopening would be futile because information
regarding all library clerks has been produced and Defendant does not recall an African
American inmate ever having been investigated for inappropriate librarian misconduct.

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The Court has wide discretion to extend time, Jenkins v. Commonwealth Land
Title Ins. Co., 95 F.3d 791, 795 (9th Cir. 1996), provided a party demonstrate some
justification for the issuance of the enlargement order. Fed. R. Civ. P. 6(b)(1); Ginett v.
Fed. Express Corp., 166 F.3d 1213 at 5* (6th Cir. 1998).

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MOTION TO REOPEN DISCOVERY

Federal Rule of Civil Procedure 16(b)(4) allows the Court to modify its scheduling
order for good cause. The “good cause” standard focuses primarily on the diligence of
the party seeking the amendment. Johnson v. Mammoth Recreations, Inc., 975 F.2d
604, 609 (9th Cir.1992). “[C]arelessness is not compatible with a finding of diligence and
offers no reason for a grant of relief.” Id. “Although the existence or degree of prejudice
to the party opposing the modification might supply additional reasons to deny a motion,
the focus of the inquiry is upon the moving party's reasons for seeking modification.” Id.

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In Plaintiff’s motion, he also requested additional time based on his need to file a motion to
compel and to request a deposition transcript. (ECF No. 99 at 2-3.) In Plaintiff’s reply, he
withdraws both of these reasons. (ECF No. 109 at 1-2.) Therefore, the Court will only address
Plaintiff’s request for additional time to obtain information regarding inmate Braggs.
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Here, Plaintiff has shown reasonable diligence in requesting the information.
Plaintiff did not learn of inmate Braggs until approximately October 20, 2014 and then
promptly requested information relating to Braggs from Defendant on October 28, 2014.
(ECF No. 99 at 2, 5.) Defendant informed Plaintiff on November 7, 2014, that she was
not going to respond because the request was “untimely.”

Defendant filed a motion to extend the time to respond to Plaintiff’s other discovery
requests which Defendant had received on October 27, 2014. (ECF No. 99, Ex. B & C.)

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That very same date

However, Defendant also avers that she has already produced requested records
regarding all inmates who worked as library clerks during the relevant time, and they
necessarily included information regarding inmate Braggs if he had worked in the library
during that time; if he did not, then he would not be a subject of the request. In other
words, if there were relevant records relating to Braggs requested by Plaintiff, Plaintiff
has them. Plaintiff does not respond to this argument. Accordingly, Plaintiff’s request to
reopen discovery will be denied.
III.

MOTION TO COMPEL
A.

Legal Standard

The discovery process is subject to the overriding limitation of good faith. Asea,
Inc. v. S. Pac. Transp. Co., 669 F.2d 1242, 1246 (9th Cir. 1981). Parties may obtain
discovery regarding any non-privileged matter that is relevant to any party's claim or
defense, and for good cause, the court may order discovery of any matter relevant to the
subject matter involved in the action. Fed. R. Civ. P. 26(b)(1). Relevant information
need not be admissible at the trial if the discovery appears reasonably calculated to lead
to the discovery of admissible evidence. Id.
Generally, if the responding party objects to a discovery request, the party moving
to compel bears the burden of demonstrating why the objections are not justified. E.g.,
Grabek v. Dickinson, 2012 WL 113799, at *1 (E.D. Cal. Jan. 13, 2012); Mitchell v.
Felker, 2010 WL 3835765, at *2 (E.D. Cal. Sep. 29, 2010); Ellis v. Cambra, 2008 WL

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860523, at *4 (E.D. Cal. Mar. 27, 2008). This requires the moving party to inform the
court which discovery requests are the subject of the motion to compel, and, for each
disputed response, why the information sought is relevant and why the responding
party's objections are not meritorious. Grabek, 2012 WL 113799, at *1; Womack v.
Virga, 2011 WL 6703958, at *3 (E.D. Cal. Dec. 21, 2011).
Courts in the Eastern District of California have required, “at a minimum, [that] the
moving party plaintiff has the burden of informing the court (1) which discovery requests
are the subject of his motion to compel, (2) which of the defendant's responses are
disputed, (3) why he believes the defendant's responses are deficient, (4) why the
defendant's objections are not justified, and (5) why the information he seeks through
discovery is relevant to the prosecution of this action.” Walker v. Karelas, 2009 WL
3075575, at *1 (E.D. Cal. Sep. 21, 2009); Brooks v. Alameida, 2009 WL 331358, at *2
(E.D. Cal. Feb. 10, 2009).
The court must limit discovery if the burden of the proposed discovery outweighs
its likely benefit. Fed. R. Civ. P. 26(b)(2)(C)(iii). “In each instance [of discovery], the
determination whether . . . information is discoverable because it is relevant to the claims
or defenses depends on the circumstances of the pending action.” Fed. R. Civ. P. 26
Advisory Committee's note (2000 Amendment) (Gap Report) (Subdivision (b)(1)).
All grounds for objection must be stated “with specificity.” See Mancia v.
Mayflower Textile Servs. Co., 253 F.R.D. 354, 356 (D.Md. 2008) (boiler-plate objections
waived any legitimate objections responding party may have had).
The responding party has a duty to supplement any responses if the information
sought is later obtained or the response provided needs correction. Fed. R. Civ. P.
26(e)(1)(A).
The requests and responses at issue are as follows:

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B.

Requests for Production

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Request for Production No. 1: Any and all documents and electronically stored
information in your possession and control that relate to inmate riots on the Kern
Valley State Prison C-Facility for the period February 9, 2009 – October 2012.
Response: Objection. The request is not relevant to the claims and defenses in
this matter and is not reasonably calculated to lead to the discovery of admissible
evidence. Plaintiff alleges Defendant Doran violated his Equal Protection rights by
not assigning him, or other African Americans, to law library clerk assignments.
Plaintiff’s claim is unrelated to any riots at Kern Valley State Prison's C-Facility.
Documents relating to any riots are also not reasonably calculated to lead to
admissible evidence of whether Defendant violated Plaintiff’s Equal Protection
rights relating to library clerk assignments. The request is vague as to the phrase
"electronically stored information" because it is not clear what type of
electronically stored information Plaintiff seeks. The request improperly assumes,
without foundation, that inmate riots occurred between February 9, 2009 and
October 2012. The request is vague and overbroad as to the phrase "relate to"
because it is unclear the extent of the documents connecting to any potential
inmate riots Plaintiff seeks. Additionally, because of the over breadth of the
phrase "relate to," documents deemed confidential may be responsive, the
disclosure of which would create a hazard to the safety and security of the
institution and prison officials involved in maintaining safety and security. These
confidential documents may include, investigations conducted regarding the
causes of inmate riots, responses to inmate riots, disciplinary measures, the
handling of inmate riots, and any aftermath. The request calls for information
which inmates are not permitted to possess under California Code of Regulations,
title 15, sections 3450(d) and 3321.
Request for Production No. 2: Any and all documents and electronically stored
information in your possession and control that relate to inmate malays on the
Kern Valley State Prison C-Facility for the period February 9, 2009 – October
2012.
Response: Objection. The request is not relevant to the claims and defenses in
this matter and is not reasonably calculated to lead to the discovery of admissible
evidence. Plaintiff alleges Defendant Doran violated his Equal Protection rights by
not assigning him, or other African Americans, to law library clerk assignments.
Plaintiff’s claim is unrelated to any "inmate malays" in Kern Valley State Prison's
C-Facility. Documents relating to any "inmate malays" are also not reasonably
calculated to lead to admissible evidence of whether Defendant violated Plaintiff’s
Equal Protection rights relating to library clerk assignments. The request is vague
as to the phrase "electronically stored information" because it is not clear what
type of electronically stored information Plaintiff seeks. The request improperly
assumes, without foundation, that inmate "malays" occurred between February 9,
2009 and October 2012. The request is vague and overbroad as to the phrase
"relate to" because it is unclear the extent of the documents connecting to any
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potential "malays" Plaintiff seeks. Additionally, because of the over breadth of the
phrase "relate to,” documents deemed confidential may be responsive, the
disclosure of which would create a hazard to the safety and security of the
institution and prison officials involved in maintaining safety and security. These
confidential documents may include investigations conducted regarding the
causes of inmate fights, responses to inmate fights, responses to riots,
disciplinary measures, the handling of inmate fights, and any aftermath. The
phrase is vague as to the phrase "malays.” The request calls for information
which inmates are not permitted to possess under California Code of Regulations,
title 15, sections 3450(d) and 3321. The request improperly assumes, without
foundation, that inmate "malays" occurred between February 9, 2009 and October
2012 in the Kern Valley State Prison C-Facility.

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Request for Production No. 3: Any and all documents and electronically stored
information in your possession and control that relate to inmate riots and/or
malays on the D-Facility for the period December 2011 – October 2012.
Response: Objection. The request is not relevant to the claims and defenses in
this matter and is not reasonably calculated to lead to the discovery of admissible
evidence. Plaintiff alleges Defendant Doran violated his Equal Protection rights by
not assigning him, or other African Americans, to law library clerk assignments.
Plaintiff’s claim is unrelated to any "inmate riots and/or malays" in Kern Valley
State Prison's D-Facility. Documents relating to any "riots and/or malays" are also
not reasonably calculated to lead to admissible evidence of whether Defendant
violated Plaintiff’s Equal Protection rights relating to library clerk assignments. The
request is vague as to the phrase "electronically stored information" because it is
not clear what type of electronically stored information Plaintiff seeks. The request
is vague and overbroad as to the phrase "relate to" because it is unclear the
extent of the documents connecting to any potential inmate riots and/or "malays"
Plaintiff seeks. Additionally, because of the over breadth of the phrase "relate to,"
documents deemed confidential may be responsive, the disclosure of which
would create a hazard to the safety and security of the institution and prison
officials involved in maintaining safety and security. These confidential documents
may include investigations conducted regarding the causes of inmate riots,
responses to riots, disciplinary measures, the handling of inmate riots, and any
aftermath. The phrase is vague as to the phrase "malays." The request is
compound because it seeks documents "relating to" both "inmate riots" and
"malays." The request calls for information which inmates are not permitted to
possess under California Code of Regulations, title 15, sections 3450(d) and
3321. The request improperly assumes, without foundation, that inmate riots
and/or "malays" occurred between December 2011 and October 2012 in the Kern
Valley State Prison D-Facility.
Request for Production No. 4: Any and all documents and electronically stored
information in your possession and control that relate to an African American
Inmate who was removed from the Kern Valley State Prison C-Facility Library
Clerks position for suspicion of racketeering and having sex relations with the
Librarian supervisor.
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Response: Objection. The request is not relevant to the claims and defenses in
this matter and is not likely to lead to the discovery of admissible evidence.
Plaintiff alleges Defendant Doran violated his Equal Protection rights by not
assigning him, or other African Americans, to law library clerk assignments. This
claim is unrelated to a librarian supervisor's alleged sexual misconduct with
another inmate. Documents relating to an alleged African American inmate who
was removed from a library clerk position because of some misconduct are not
reasonably calculated to lead to the discovery of admissible evidence. The
request improperly assumes, without foundation, that an African American inmate
"was removed from the Kern Valley State Prison C-Facility Library Clerks position
for suspicion of racketeering and having sex ... " Specifically, Defendant disputes
Plaintiff’s assertion that the ethnicity of an inmate who purportedly engaged in a
sexual relationship with a member of the library staff was African American. The
request is vague as to the phrase "electronically stored information" because it is
not clear what type of electronically stored information Plaintiff seeks. The request
is vague and overbroad as to the phrase "relate to" because it is unclear the
extent of the documents connecting to any potential inmate who was removed
from the Kern Valley State Prison C-Facility library because of an internal
investigation following an Administrative Segregation placement. The request is
vague as to who the African American inmate is that Plaintiff references because
there are many African Americans who have been inmates at Kern Valley State
Prison. The request calls for information which inmates are not permitted to
possess under California Code of Regulations title 15, sections 3450(d) and 3321.
The request calls for information which would violate the privacy of third persons
under California Civil Code sections 1798.24 and 1798.40.

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Without waiving these objections, Defendant does not possess or have control
over any responsive documents.
Request for Production No. 5: Any and all documents and electronically stored
information in your possession and control that relate to CDC Forms 114-D
Administrative Placement Order of the C-Facility Inmate Clerks who were placed
in administrative segregation in 2009 under investigation for racketeering in the
library and having sex relations with the librarian supervisor.
Response: Objection. The request is not relevant to the claims and defenses in
this matter and is not likely to lead to the discovery of admissible evidence.
Plaintiff alleges Defendant Doran violated his Equal Protection rights by not
assigning him, or other African Americans, to law library clerk assignments. This
claim is unrelated to inmate clerks "who were placed in administrative segregation
in 2009 under investigation for racketeering in the library and having sex ... "
Documents relating to inmate clerks "who were placed in administrative
segregation in 2009 under investigation for racketeering in the library and having
sex ... " are not reasonably calculated to lead to the discovery of admissible
evidence. The request improperly assumes, without foundation, that multiple
inmate clerks were investigated "for racketeering in the library and having sex
relations with the librarian supervisor." The request is vague as to the phrase
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"electronically stored information" because it is not clear what type of
electronically stored information Plaintiff seeks. The request is vague and
overbroad as to the phrase "relate to" because it is unclear the extent of the
documents connecting to CDC Forms 114-D Administrative Placement Orders for
Kern Valley State Prison's C-Facility clerks due to internal investigations following
Administrative Segregation placements. The request calls for information which
inmates are not permitted to possess under California Code of Regulations title
15, sections 3450(d) and 3321. The request calls for information which would
violate the privacy of third persons under California Civil Code sections 1798.24
and 1798.40.

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Without waiving these objections, Defendant does not possess or have control
over any responsive documents.

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C.

Analysis and Ruling

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As an initial matter, Plaintiff filed his motion to compel on December 11, 2014

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after the deadline for the close of discovery in this case. (ECF Nos. 77 & 105.) Given

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Defendant does not object to the motion on untimeliness grounds, and Plaintiff filed the

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motion approximately two weeks after receipt of the responses from Defendant, Plaintiff

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has shown diligence and good cause in filing the motion, and it will not be denied on

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untimeliness grounds.

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Plaintiff asserts that Defendant must comply with his requests for production of

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documents, set two, numbers 1 - 5. (ECF No. 105.) Plaintiff argues that requests 1 – 3

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are relevant to his allegation that Defendant’s discrimination against African American

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inmates in regards to library positions “creates racial animosity that leads [sic] to racial

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violence “in the form of malays and riots.” (ECF No.105 at 2-3.) Plaintiff argues that the

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information requested in requests 4 and 5: 1) go to Defendant’s “state of mind” in

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excluding African Americans from librarian positions, 2) are within the control of

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Defendant or her employees or agents, and 3) are not protected by any privilege. (ECF

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No.105 at 4-5.)

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Generally, Defendant opposes the motion on the grounds that the requests are

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vague, overbroad, and lack foundation, and the documents requested are irrelevant to

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Plaintiff’s claim and contain protected confidential and private information. (ECF No.

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110.) Specifically, Defendant argues that requests 1 – 3 are not relevant to Plaintiff’s
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claim and amount to a “fishing expedition,” Plaintiff admits he never was injured or in an
altercation with library clerks resulting from a lack of African American clerks, and the
requests generally raise security concerns. (ECF No. 110 at 3-5.) Defendant argues
that she does not have responsive documents to Plaintiff’s requests 4 and 5 because
“she does not recall any incidents” involving a C-Facility law librarian having
inappropriate relations with an African American inmate. (ECF No. 110 at 6.)
With respect to requests 1 – 3, Defendant’s objection based on relevancy is
sustained. Plaintiff has not shown, and the Court cannot envision, how the occurrence
of riots and/or melees as an aftermath to the alleged discrimination could be relevant to
his claims.
Defendant’s objection to producing documents responsive to requests 4 and 5 is
overruled. Requests 4 and 5 are relevant to Plaintiff’s claim because the information
could lead to admissible evidence regarding Defendant’s discriminatory intent; Plaintiff
argues that Defendant began discriminating against African Americans because of a
prior incident involving an African American inmate having inappropriate relations with a
law librarian. Defendant’s objection on grounds of institutional safety and security lacks
factual support. See Soto v. City of Concord, 162 F.R.D. 603, 613 (N.D. Cal. 1995)
(Defendants' conclusory objection of confidentiality is insufficient to shield them from
producing discoverable documents). The personal information objection may have merit
if the inmate who is the subject of the requested information declines to allow Plaintiff
access to his personal information. 15 C.C.R. § 3450(a); See also Whalen v. Roe, 429
U.S. 589, 598–99 (1977) (the Due Process Clause of the Fourteenth Amendment
protects individuals against the disclosure of personal matters). However, it is unclear
this is the case here.
Lastly, Defendant asserts that she does not recall any suchincident, and therefore
the information is not within her custody or control. However, Defendant’s current lack of
recollection regarding an investigation involving an African American inmate is not

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conclusive of the non-existence of the requested information. Defendant must conduct a
diligent search of the files and documents within her possession, custody, and control
and either produce any responsive documents or attest that no such documents exist
after said search. Fed. R. Civ. P. 34(a)(1); Allen v. Woodford, 2007 WL 309945, *2 (E.D.
Cal. Jan. 30, 2007) (citing In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir. 1995))
(“Property is deemed within a party's ‘possession, custody, or control’ if the party has
actual possession, custody, or control thereof or the legal right to obtain the property on
demand.”).

supporting its objection to disclosure of the subject inmate’s information, within the time
provided below.
IV.

ORDER
Accordingly, for the reasons stated, it is HEREBY ORDERED that:
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Plaintiff’s motion to reopen discovery is DENIED.

2.

Plaintiff’s motion to compel a further response to requests for production,

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set three is GRANTED, in part, and DENIED, in part. Defendant shall

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produce responses to requests 4 and 5 or provide a further response

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supporting objections, within twenty (20) days of service of this Order.

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Defendant may notify the non-party inmate(s) involved and include the

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Accordingly, Defendant shall produce or provide a further response

objections, if any, in her further response.
3.

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Plaintiff has until February 27, 2015 to file a supplemental opposition, if
any, to Defendant’s cross-motion for summary judgment. Defendant shall

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file a reply, if any is to be filed, by March 6, 2015.

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IT IS SO ORDERED.

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Dated:

January 26, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
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