Lewis v. Alison et al

Filing 94

ORDER Granting Plaintiff's 61 Motion to Compel Production of Documents, signed by Magistrate Judge Barbara A. McAuliffe on 01/21/15. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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HOMER TYRONE LEWIS,
Plaintiff,

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v.

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KATHLEEN ALISON, et al.,
Defendants.

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Case No.: 1:12-cv-00856-LJO-BAM (PC)
ORDER DENYING PLAINTIFF’S MOTION TO
COMPEL PRODUCTION OF DOCUMENTS
(ECF No. 61)

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I.

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Plaintiff Homer Tyrone Lewis (“Plaintiff”) is a state prisoner proceeding pro se and in forma

Background

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Following summary judgment for

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failure to exhaust administrative remedies, this action currently proceeds on Plaintiff’s third amended

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complaint against Defendant Denny for retaliation in violation of the First Amendment of the United

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States Constitution. (ECF No. 93.)
On August 18, 2014, Plaintiff filed a motion to compel the production of documents from

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Defendants Adams, Allison, Denny and Junious pursuant to Federal Rule of Civil Procedure 37. (ECF

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No. 61.) Defendants opposed the motion on September 9, 2014. (ECF No. 67.) Plaintiff replied on

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September 19, 2014. (ECF No. 73.) The motion is deemed submitted. Local Rule 230(l).

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II.

A.

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Motion to Compel
Request for Production of Documents

“A party may serve on any other party a request within the scope of Rule 26(b): (1) to produce

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and permit the requesting party or its representative to inspect, copy, test, or sample the following

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items in the responding party’s possession, custody or control: (A) any designated documents or

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electronically stored information . . . .” Fed. R. Civ. P. 34(a)(1)(A).

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In responding to requests for production, a party must produce documents or other tangible

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things which are in his or her “possession, custody, or control.” Fed. R. Civ. P. 34(a). Responses

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must either state that inspection and related activities will be permitted as requested or state an

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objection to the request, including the reasons. Fed. R. Civ. P. 34(b)(2)(B).
Actual possession, custody or control is not required. “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 document

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or has control over the entity [that] is in possession of the document.” Soto v. City of Concord, 162

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F.R.D. 603, 619 (N.D. Cal.1995); see also Allen v. Woodford, 2007 WL 309945, at *2 (E.D. Cal. Jan.

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30, 2007) (“Property is deemed within a party’s ‘possession, custody, or control’ if the party has actual

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possession, custody, or control thereof or the legal right to obtain the property on demand.”) (citation

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omitted).

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B.

Discussion

Plaintiff seeks to compel responses to request for production of documents (POD) 24, which

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was served on Defendants Adams, Junious and Denny. To the extent Plaintiff seeks the production of

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documents from or concerning former defendants Adams, Allison and Junious, his motion to compel

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shall be denied. These defendants are no longer parties to this action. The Court therefore limits its

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analysis to documents relevant to the retaliation claim against Defendant Denny.

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POD 24: “Any and all, prior and present grievances, staff complaints, civil litigations state or

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federal by CDCR inmates, or other documents reletive [sic] to official misconduct pertaining only to

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particular kinds of complaints and/or allegations in the Personnel Files of Defendants Adams, Junious

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and Denny, including but not limited to, Investigative reports by the Federal Bureau of Investigations

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(F.B.I.), (CDCR) or outside Law Enforcement Agencies of Office of Internal Affairs (O.I.A.),

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Investigative Services Unit (I.S.U.) concerning [RETALIATION] against CDCR inmates and/or

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CDCR employees from the time you were employed by the California Department of Corrections and

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Rehabilitation (‘CDCR’) to the present, according to Federal Rules of Civil Procedure[] Rule 26(b)(1),

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and Rule 404(b), Federal Rules of Evidence, produce copies of all documents.”

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Response: “Objection, this request is vague, ambiguous, and confusing with respect to

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‘official misconduct pertaining only to particular kinds of complaints and/or allegations,’ and appears

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to present a compound request for several different types of documents. To the extent this request

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seeks any and all complaints submitted by CDCR inmates in any forum alleging any misconduct, or

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specifically retaliation, by Defendants Adams, Junious, and Denny, it is overbroad, unduly

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burdensome with regard to time and scope, and is not reasonably calculated to lead to the discovery of

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admissible evidence. Responding to this request would require a search of every venue wherein an

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inmate might complain about a prison official, throughout Defendants’ entire careers with CDCR, to

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screen for any mention of Defendants Adams, Junious, or Denny. The massive effort required to do so

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is not likely to yield any relevant evidence, because the request is not tailored to addressing Lewis’s

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claim that Defendants retaliated against him in connection with his January 31, 2011 placement in

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administrative segregation. Additionally, any complaints submitted by other inmates responsive to

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this request would be protected by the official information privilege. Other than the present matter,

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Defendants are not aware of any inmate grievances or complaints against them alleging retaliation,

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and are not aware of any investigations into claims of retaliation against them. Defendants do not

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have care, custody, or control over any investigative reports prepared by the FBI. Without waiving

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these objections, Defendants respond as follows:

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Defendants produce as Attachment A a copy of CDCR Form 602, Inmate/Parolee Appeal, log

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number SATF-Z-11-0092 authored by Lewis on April 4, 2011, concerning his administrative

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segregation placement and legal materials; as Attachment B a copy of the first-level response to appeal

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log number SATF-Z-11-0092; as Attachment C a copy of the second-level response to appeal log

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number SATF-Z-0092; as Attachment D a copy of the third-level response to appeal log number

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SATF-Z-11-0092; as Attachment E a copy of CDCR Form 602, Inmate/Parolee Appeal, log number

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SATF-Z-11-01492 authored by Lewis on May 27, 2011, concerning his administrative segregation

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placement and legal materials; as Attachment F a copy of the first-level response to appeal log number

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SATF-Z-01492; as Attachment G SATF Inmate/Parolee Appeals Tracking System printout for Lewis;

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and as Attachment H a copy of Office of Appeal Inmate/Parolee Appeals Tracking System printout for

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Lewis.

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Ruling: Plaintiff’s motion to compel is denied. Plaintiff contends that Defendant Denny’s

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objections are not justified or meritorious because the discovery appears reasonably calculated to lead

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to the discovery of admissible evidence and the requested documents are relevant. Fed. R. Civ. P.

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26(b)(1). Plaintiff’s argument overlooks Defendant Denny’s objections that, amongst other things, the

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request is vague, confusing, compound, overbroad and unduly burdensome. The Court finds that these

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objections are both justified and meritorious. Plaintiff’s request is confusing, compound, overbroad as

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to time and scope and is unduly burdensome by requiring Defendant Denny to seek documents from a

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variety of sources, not simply the types of documents contained in his personnel file, for the entirety of

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his career with CDCR. Further, Plaintiff fails to demonstrate how complaints from other inmates

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regarding Defendant Denny are reasonably calculated to lead to the discovery of admissible evidence

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or are relevant to any claim or defense related to Defendant Denny’s alleged retaliation against

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Plaintiff in 2011.

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Plaintiff also complains that Defendant Denny is asserting “Official Information Privilege,”

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“Informant Identity Privilege,” and “Law Enforcement Privilege” concerning the requested documents

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from Defendant Denny’s personnel file. Plaintiff’s complaint is inaccurate. Defendant Denny only

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asserts the official information privilege in connection with Plaintiff’s apparent request for grievances

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filed by other prisoners. Regardless, the request for grievances and complaints made by other inmates

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is overbroad as to time and unduly burdensome. As noted above, Plaintiff also fails to demonstrate

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how complaints from other inmates regarding Defendant Denny are reasonably calculated to lead to

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the discovery of admissible evidence or are relevant to any claim or defense in this action. Further,

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Defendant Denny represents that he is unaware of any inmate grievances or complaints against him

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alleging retaliation.

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Plaintiff also asserts in his reply that Defendant Denny can produce documents in his “care,

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custody or control of outside Law Enforcement Agencies of Investigative Reports.” (ECF No. 73, p.

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3.) However, Defendant Denny represents that he is unaware of any investigations into claims of

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retaliation against him. Moreover, there is no indication that Defendant Denny has the legal right to

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obtain investigative documents from an outside agency and Defendant Denny cannot be compelled to

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produce documents in the care, custody and control of outside law enforcement agencies. Fed. R. Civ.

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P. 34(a)(1).

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III.

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For the reasons stated, Plaintiff’s motion to compel production of documents, filed on August

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Conclusion and Order

18, 2014, is HEREBY DENIED.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

January 21, 2015

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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