Hernandez v. Hernandez et al

Filing 89

ORDER Denying 74 Motion for Court Order; ORDER Denying 75 Motion to Compel signed by Magistrate Judge Michael J. Seng on 06/17/2015. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FEDERICO HERNANDEZ,

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Plaintiff,

CASE NO. 1:13-cv-01625-MJS (PC)
ORDER DENYING MOTION FOR COURT
ORDER (ECF No. 74)

v.
M. HERNANDEZ, et al.,

ORDER DENYING MOTION TO COMPEL
(ECF No. 75)

Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds against

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Defendants Hernandez, Zambrano, Clark, Rodriguez, and Martin on Plaintiff’s Eighth

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Amendment excessive force claim. Trial is set for August 11, 2015. (ECF No. 86.)

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On May 21, 2015, Plaintiff filed a motion for a court order to obtain photographs.
(ECF No. 74.) Defendants filed an opposition. (ECF No. 81.) Plaintiff filed no reply.
On May 26, 2015, Plaintiff filed a motion to compel discovery. (ECF No. 75.)
Defendants filed an opposition. (ECF No. 80.) Plaintiff filed no reply.
These matters are deemed submitted.

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I.

MOTION FOR COURT ORDER

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Plaintiff requests a court order requiring someone to take photographs of the

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bottoms of Defendants’ work boots, apparently to prove that the boots match alleged

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tread patterns and bruises on Plaintiff’s skin following the incident at issue in this case.

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(ECF No. 74.)

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Defendants oppose the motion on the ground that Plaintiff provides no legal

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basis for such an order. Additionally, the boots are at least 27 months old. Finally, other

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evidence may substantiate Plaintiff’s claims without the need to take photographs.

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(ECF No. 81.)

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Federal Rule of Civil Procedure 34 allows Plaintiff to request that Defendants

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provide him with documents or tangible things – such as photographs – that are in the

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Defendants’ possession, custody, or control. It does not require Defendants to create

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evidence or take photographs to support Plaintiff’s case. Nor does Plaintiff point the

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Court to any authority that would allow the Court to order such photographs to be taken

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by another individual at public expense. See Tedder v. Odel, 890 F.2d 210, 211-12 (9th

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Cir. 1989) (“[T]he expenditure of public funds [on behalf of an indigent litigant] is proper

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only when authorized by Congress. . . .” (quoting United States v. MacCollom, 426 U.S.

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317, 321 (1976))). Moreover, nothing before the Court indicates that Defendants are

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still in possession of the boots worn during the incident or that they have maintained

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the boots in such a state that the tread pattern would be unaltered from the time of the

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incident. Thus, there is nothing to indicate that photographs of the boots in their current

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state would be relevant.
Accordingly, Plaintiff’s motion for a court order to take photographs will be

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denied.

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II.

MOTION TO COMPEL

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Plaintiff seeks to compel Defendant Hernandez to produce a 2009 Pleasant

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Valley State Prison investigation report into alleged illegal and other gang activity on

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the part of Defendant Hernandez. (ECF No. 75.) In support of his request, he attaches

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a declaration from Inmate Chance Harden, stating that in 2009, Harden was required to

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provide Defendant Hernandez with a case of soup and a container of coffee each

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month in exchange for Defendant Hernandez ignoring Harden’s illicit tattoo enterprise.

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According to Harden, Defendant Hernandez used the soup and coffee to pay “inmate

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soldiers” to “beat down” other inmates who filed grievances. Several months later,

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investigators confiscated cases of soup and coffee from the officer’s office room.

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Defendant Hernandez also allowed inmates to sell nighttime phone slots and, around

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this time, got a “gang related” tattoo of a star on his neck.

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Plaintiff claims that Defendant Hernandez’s illegal activity and his tattoo are

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relevant because they show that Defendant Hernandez was a member of a rival gang

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and therefore had a motive to use excessive force against Plaintiff.

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Defendants maintain that such documents would be irrelevant if they existed,

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but Defendant Hernandez was not investigated in 2009 for gang activity, and therefore

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no responsive documents are in Defendants’ possession, custody, or control. (ECF No.

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80.)

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Defendants are required to produce non-privileged documents that are in their

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possession, custody, or control. Fed. R. Civ. P. 34. They cannot be compelled to

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produce documents that do not exist. Defendants contend that Defendant Hernandez

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was not investigated for gang activity in 2009, and Plaintiff provides no evidence to the

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contrary. The declaration by Inmate Harden does not support a finding that Defendant

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Hernandez was investigated for gang activity, particularly in light of Defendants’

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statement to the contrary.
Accordingly, Plaintiff’s motion to compel (ECF No. 75) will be denied.

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III.

CONCLUSION AND ORDER
Based on the foregoing, it is HEREBY ORDERED that:

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1. Plaintiff’s motion for a court order to obtain photographs (ECF No. 74) is

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DENIED; and
2. Plaintiff’s motion to compel (ECF No. 75) is DENIED.

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IT IS SO ORDERED.
Dated:

June 17, 2015

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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