Jacobsen v. People of the State of California
Filing
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ORDER GRANTING In Part and DENYING In Part Plaintiff's 53 Motion to Compel Further Discovery Responses, signed by Magistrate Judge Jennifer L. Thurston on 12/9/2015. Thirty Day Deadline. (Marrujo, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MICHAEL NEIL JACOBSEN,
Plaintiff,
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v.
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PEOPLE OF THE STATE OF
CALIFORNIA,
Case No. 1:14-cv-00108-JLT (PC)
ORDER GRANTING IN PART AND DENYING IN
PART PLAINTIFF’S MOTION TO COMPEL
FURTHER DISCOVERY RESPONSES
(Doc. 53)
30-DAY DEADLINE
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Defendant.
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In this action, Plaintiff is proceeding on claims of: (1) excessive force and deliberate
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indifference to his serious medical needs in violation of the Eight Amendment, violation of
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Plaintiff's right of access to the courts, and retaliation in violation of the First Amendment against
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Sergeant Diaz; (2) excessive force in violation of the Eight Amendment and retaliation in
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violation of the First Amendment against Officer Barahas; and (3) deliberate indifference to his
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serious medical needs in violation of the Eight Amendment against Nurse Monica. (Doc. 17.)
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On September 17, 2015, Plaintiff filed a motion to compel Defendants Diaz and Barahas
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(“Defendants”)1 to produce for inspection and copying a number of items in response to
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Plaintiff’s requests for production. (Doc. 53.) Defendants filed an opposition (Doc. 58) to which
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Plaintiff replied (Doc. 63). The motion is deemed submitted. L.R. 230(l). Plaintiff’s motion is
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Plaintiff has not moved to compel further responses from Defendant Nurse Monica Choe.
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GRANTED IN PART and DENIED IN PART as delineated herein below.
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I. Motion to Compel Production of Documents
Federal Rule of Civil Procedure 34 empowers a party to serve on any other party a request
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to produce “any designated documents . . . which are in the possession, custody or control of the
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party upon whom the request is served.” Fed. R. Civ. P. 34(a). Documents are in the
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“possession, custody, or control” of the served party if “the party has actual possession, custody,
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or control, or has the legal right to obtain the documents on demand.” In re Bankers Trust Co., 61
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F.3d 465, 469 (6th Cir.1995). Accordingly, a party may be required to produce documents turned
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over to an agent, such as its attorney or insurer. E.g., Henderson v. Zurn Indus., 131 F.R.D. 560,
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567 (S.D. Ind.1990). Further, the responding party has a duty to supplement any responses if the
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information sought is later obtained, or the response provided needs correction. Fed. R. Civ. P.
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26(e).
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If Defendants object to one of Plaintiff’s discovery requests, it is Plaintiff’s burden, in a
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motion to compel, to demonstrate why the objection is not justified. In general, Plaintiff must
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inform the Court which discovery requests are the subject of his motion to compel, and, for each
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disputed response, inform the Court why the information sought is relevant, and why Defendants’
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objections are not justified.
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Plaintiff’s motion to compel is deficient as it merely identifies the documents/items which
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he desires be produced, without submitting either his original requests or Defendants’
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responses/objections to each verbatim. Plaintiff merely states categories of documents/items that
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he desires be produced and generally states that the responding production was deficient and/or
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his disagreement with Defendants’ reasons for their lack of production. (Doc. 53.)
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Plaintiff’s motion does not address which discovery requests, in which set of his requests
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for production, are the subject of his motion to compel; nor does he inform the Court why the
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information sought is relevant and why Defendants’ objections are not justified. However,
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Defendants have addressed each of the seven categories of items which Plaintiff seeks they be
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compelled to produce. (Doc. 58.) In the interest of conserving the Court’s limited resources, and
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given both Defendants’ opposing efforts and the extent of discovery apparently being conducted
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in this case, the Court opts to reach the merits of Plaintiff’s motion to compel, rather than deny
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the motion without prejudice to refiling. Defendants shall serve on Plaintiff copies of any
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responsive documents ordered produced herein within 30 days from the date of service of this
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order.
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II. Limit of 25 Requests for Production
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As a preliminary matter, Defendants raise an argument that Plaintiff exceeded the limit to
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25 requests for production imposed by the Discovery and Scheduling Order(s) in this action.
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(Doc. 58, 1:23-3:5.) Defendants argue that every subpart of each of Plaintiff’s written contacts
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regarding his requests for production should be counted as individual requests for production. To
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this end, they argue that Plaintiff has propounded 41 requests for production in 6 numbered and
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unnumbered sets. (Id., at 1:26-2:3.) However, when the documents that Defendants characterize
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as individual sets of requests for production are scrutinized, it is clear that a number of the
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subparts in Plaintiff’s documents address and clarify various of his prior requests in an attempt to
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obtain the correct/responsive documents/items.
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Specifically, Plaintiff’s first set of requests for production, dated December 14, 2014,
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contains ten requests (id., at p. 18); Plaintiff’s letter of February 18, 2015, though titled “2nd
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informal request for production of documents,” is Plaintiff’s lay attempt to meet and confer to
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clarify his requests in order to obtain full production in response to requests #1, #10, and #4 in Set
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#1 (id., at pp. 28-29); Plaintiff’s letter of April 14, 2014 advised why he was having difficulty
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responding to Defendants’ propounded production requests and, at the very end, further clarified
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his requests #1 and #10 in Set #1and ended with one new request for production (id., at p. 41);
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Plaintiff propounded his second set of requests for production on May 14, 2015 and it contained 5
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new requests for production (id., at pp. 45-46); Plaintiff’s correspondence of May 25, 2015
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contained 4 new requests for production (id., at pp. 48-49); and as to Plaintiff’s correspondence of
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July 9, 2015 -- (1) addressed deficiencies in Defendants’ production in response to his #2 request
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for production in Set #2 (id., at p. 56), (2) contained 3 new requests (subparts (B), (C), and (D) to
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question #2 were new while #1 pertains to request #2 of Set #2, subpart (A) of #2 pertains to #4
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of Set #1, and subpart (E) clarified a request mentioned in his February 18th letter which related
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back to #4 of Set #1 (id., at pp. 56-57), (3) addressed Defendants’ objections in response to his #2
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request for production in Set #3 (id., at pp. 57-58), (4) addressed deficiencies in Defendants’
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production in response to his #3 request for production in Set #3 (id., at p. 58), request #10 from
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Set #1 (id., at p. 59, (1)), request #1 from Set 1 (id., at p. 59 (2)), contained 2 new requests (id., at
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p. 59 (3) which should be broken into 2 individual requests), and addressed request #5 of Set #1
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(id., at p. 61).
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This process of discovery is convoluted evolution, but, once unwound, it is apparent that
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Plaintiff has served 25 individual requests for production -- not 41 as asserted by Defendants.
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Though Plaintiff’s efforts to meet and confer to clarify his requests for production were far from
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perfect, they do not count as wholly new requests. Thus, Plaintiff has not exceeded the number of
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requests for production allowed in this case. (See Docs. 24, 34, 43, 62.) Accordingly, all of
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Defendants’ objections that Plaintiff has exceeded the number of requests for production allowed
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in this case are OVERRULED. However, because Plaintiff has served 25 requests for
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production on these Defendants, he may not serve any further requests.
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III. Plaintiff’s Requests for Production
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Plaintiff’s motion is addressed by the 7 general categories of requests for production
which Plaintiff he raises.
Plaintiff’s Request:
Medical record and the medical request being responded to by Nurse
Monica. (April 25th 2014). (Doc. 53, 1:19-25.)
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Argument: Plaintiff asserts that this was not included in the exhibit sent to him on
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February 5, 2015 in response to his request for “all medical records from F.C.J. until I was
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transferred.” (Id.) Defendants responded to request #1 of Plaintiff’s Set #1 request by indicating
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that a copy of his medical chart maintained at the Fresno County Jail would be produced. (Doc.
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58, p. 22.) In his reply, Plaintiff argues that these records should have been produced as part of
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his medical record which he requested in Set #1. The request for medical care that Plaintiff
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submitted upon which Nurse Monica saw him should logically be part of Plaintiff’s complete
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medical chart maintained at the Fresno County Jail that Defendants supposedly produced.
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However, even if such is not the practice at the Fresno County Jail, Plaintiff’s subsequent request
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for “any and all documents relating to the 4/25/14 visit [Nurse Monica] pulled me out for,
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including the medical slip” clearly requested these materials and, as previously discussed, was
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within the 25 requests that Plaintiff was allowed to propound.
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Ruling: Plaintiff’s requests relating to Nurse Monica in his July 9th correspondence do
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not exceed the 25 limit. Thus, Plaintiff’s motion to compel further production from Defendants
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Diaz and Barahas as to the medical record, his request to which Nurse Monica responded on April
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25, 2014, and all documents relating to that visit is GRANTED.
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Plaintiff’s Request:
A copy of the letter that officers took to my sentencing judge (Judge
Vogt) one week before my sentencing date telling him that I had
wrote it. (April 25, 2014).
Argument: In his motion, Plaintiff merely lists this as a request for which he seeks to
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compel further production. (Doc. 53, pp. 1-2.) This is #7 in Set #1 to which Defendants objected
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as vague as to the identity of the officer and that it sought documents contained in files
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maintained by the Fresno County Superior Court. (Doc. 58, p. 24.) Defendants argue that they
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are not in possession, custody, or control of any such document. (Id., 3:21-4:5.) Plaintiff replied
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that “another F.C.J. Officer told” him that any such contact has to be documented, but that there is
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nothing in their computer documenting it, and that a copy of the letter should also have been
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retained by the Fresno County Jail. (Doc. 63, p. 3.) However, Plaintiff’s assertion that someone
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told him this is insufficient to prove that Defendants are not producing an item within their
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possession, custody, or control.
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Ruling: Defendants are only required to produce items within their possession, custody,
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or control. Fed. R. Civ. P. 34. Defendants are not required to obtain an item from a non-party in
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response to Plaintiff’s request for production. Plaintiff’s motion to compel further production
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from Defendants as to the letter which his sentencing judge (Judge Vogt) relied on is DENIED.
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Plaintiff’s Request:
The videos taken from the 2 assaults of 12/25/13 and 3/11/14 which
both occurred on main jail 4th floor of the F.C.J. in the exact same
spot, right in front of a camera.
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Argument: In his motion, Plaintiff merely lists this as a request for which he seeks to
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compel further production. (Doc. 53, p. 2.) Plaintiff requested these videos in #10 of Set #1.
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(Doc. 58, p. 18.) Defendants’ initial response indicated they were unaware of the existence of
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any such videos, but that discovery was continuing. (Id., at pp. 24-25.) When Plaintiff followed
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up that he wanted copies of the videos (id., at p. 28), Defendants responded that the videos were
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not available for production (id., at p. 32). Thus, Plaintiff followed up again and this time
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inquired as to how he could view the videos since they could not be produced. (Id., at p. 41.)
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Defense counsel’s responding correspondence indicated that he was not aware of any video from
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those dates that “can be produced.” (Id., at p. 43.) Plaintiff thereafter attempted one last time to
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obtain and/or view the videos from these two incidents (id., at p. 59) to which Defendants
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responded that they had conducted a reasonably diligent investigation with a result that they were
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not aware of the existence of any video from the incidents described in this request (id., at p. 68).
Ruling: Though belabored and belated in coming2, Defendants conducted the diligent
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investigation that was required to confirm that video from the incidents that Plaintiff seeks do not
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exist. Defendants cannot be compelled to produce that which does not exist. Thus, Plaintiff’s
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motion to compel production of videos from the assaults that occurred on 12.25.13 and 3/11/14 is
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DENIED.
Plaintiff’s Request:
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All photographs that should have been included in the jail incident
reports of his injuries on 12/25/13, 1/27/14, and 3/11/14. Photos
were taken on all 3 dates, yet only 3 of 6 taken on 12/25/14 were
produced and none were produced from the incidents on 1/27/14
and 3/11/14.
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Argument: In his motion, Plaintiff merely lists this as a request for which he seeks to
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compel further production. (Doc. 53, p. 2.) Plaintiff requested a copy of his medical record in #1
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of Set #1 which he clarified should have included photographs taken in the medical clinic when
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he received treatment for his injuries from the incidents. (Doc. 58, at pp. 18, 28.) Defense
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counsel responded by indicating that he was producing the photographs Plaintiff sought. (Id., at
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The Court is at a loss to understand why, if the videos didn’t exist, why, at the outset, Defendants did not state this
in clear terms.
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p. 32.) However, Plaintiff followed up and indicated that he had not been provided the photos
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from the 12/25/13 and 3/11/14 incidents (id., at p. 41) to which defense counsel responded he had
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produced all photos that the jail had provided to him (id., at p. 43). When new defense counsel
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came on the case, Plaintiff again attempted to obtain full production of the photos of his injury, to
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which Defendants responded that Plaintiff had exceeded the 25 requests allowed. (Id., at pp. 59,
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68.)
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Ruling: Indicating that counsel has provided all items that a client’s employer gave them,
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and thereafter refusing to respond does not indicate a reasonably diligent investigation has been
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conducted and that all discoverable items have been produced. Plaintiff’s motion to compel
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Defendants to produce all photographs taken of his injuries sustained in the incidents that
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occurred on 12/25/13, 1/27/14, and 3/11/14 would be granted. However, Defendants indicate in
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their opposition that they withdraw their objection as mistakenly made and provided Plaintiff with
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all photographs taken from the 12/25/13, 1/27/13, and 3/11/14 incidents on the date they filed
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their opposition. However, in his reply, while Plaintiff acknowledges receipt of a few
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photographs after he filed his motion to compel, he recalls more photographs being taken of him
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than the 9 that were produced. Specifically, from the 12/25/13 incident, Plaintiff recalls two more
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photographs of his right eye and one of a boot print on his back from being kicked that have not
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been produced. Thus, Plaintiff’s motion to compel production of photographs of his injuries from
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these three incidents is GRANTED. Defendants are ordered to conduct a diligent investigation to
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locate any and all photographs that have not been produced to Plaintiff. If their investigation is
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fruitless, they are to produce a declaration delineating their efforts to locate the photographs.
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Plaintiff’s Request:
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The F.C.J. officers policies for the following: (a) when asked to
speak to a supervisor; (b) the proper or designated location to
conduct a rule violation hearing; (c) the policy for preservation of
video of incidents or crimes committed in the F.C.J; (d) the policy
for when an inmate complains to officers of injuries or serious
medical conditions; (e) the policy for when an officer speaks to a
judge on behalf of an inmate.
Argument & Ruling: In his motion, Plaintiff merely lists this as a request for which he
seeks to compel further production. (Doc. 53, p. 2.) Defendants accurately responded to the
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above as five separate requests because they seek five different policies. (Doc. 58, 5:12-7:9, pp.
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64-69.)
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As to Plaintiff’s request for the policy regarding when someone asked to speak to a
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supervisor, Defendants initially responded that, following a reasonably diligent investigation, they
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had not located any documents responsive to this request. (Doc. 58, p. 65.) In their opposition,
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Defendants reassert that they do not have any such documents in their possession, custody, or
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control. (Id., at 5:19-26.) Plaintiff fails to show what about Defendants’ response is inaccurate or
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insufficient. Defendants cannot be compelled to produce that which they do not have in their
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possession, custody, or control. Plaintiff’s motion to compel production of a policy responsive to
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this request is DENIED.
As to Plaintiff’s request for the policy on the proper or designated location to conduct a
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rule violation hearing, Defendants produced the Fresno County Jail Inmate Discipline policy (E-
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230) which they represent is the only document located which is responsive to Plaintiff’s request.
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(Id., at 5:27-6:7.) Plaintiff fails to show what about Defendants’ response is inaccurate or
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insufficient. Defendants cannot be compelled to produce more than that which they have in their
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possession, custody, or control. Plaintiff’s motion to compel production of a policy responsive to
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this request is DENIED.
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As to Plaintiff’s request for the policy reagrding preservation of video of incidents or
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crimes committed in the F.C.J., Defendants responded that they conducted a reasonably diligent
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investigation and did not locate any documents edifying a policy responsive to this request. (Id.,
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at 6:8-15.) Plaintiff fails to show what about Defendants’ response is inaccurate or insufficient.
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Defendants cannot be compelled to produce that which they do not have in their possession,
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custody, or control. Plaintiff’s motion to compel production of a policy responsive to this request
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is DENIED.
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As to Plaintiff’s request for the policy for when an inmate complains to officers of injuries
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or serious medical conditions, Defendants responded by producing a copy of the Fresno County
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Jail Medical Health Services Policy. (Id., at 6:16-25.) Plaintiff fails to show what about
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Defendants’ response is inaccurate or insufficient. Defendants cannot be compelled to produce
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that which they do not have in their possession, custody, or control. Plaintiff’s motion to compel
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production of a policy responsive to this request is DENIED.
As to Plaintiff’s request for the policy pertaining to instances when an officer speaks to a
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judge on behalf of an inmate, Defendants objected that Plaintiff had exceeded the 25 requests that
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he is allowed to make of them in this case and that it was duplicative of a prior request. (Id., at
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6:26-7:9.) Defendants have not shown that they conducted a reasonably diligent investigation
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which came up fruitless, nor have they shown that no such policy exists. Thus, Plaintiff’s motion
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to compel production of a policy responsive to this request is GRANTED.
Plaintiff’s Request:
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Work records of Nurse Monica (credentials and dates of employment)
at the F.C.J. Nurse Monica is the 3rd Defendant. Provide full name.
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Argument & Ruling: In his motion, Plaintiff merely lists this as a request for which he
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seeks to compel further production. (Doc. 53, p. 2.) Defendants responded that Plaintiff had
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exceeded the 25 requests for production that he was allowed in this action. (Doc. 58, 7:10-23.)
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While, as discussed above, this objection has been OVERRULED, in his reply, Plaintiff
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essentially withdrew this part of the motion indicating that, since Nurse Monica has appeared in
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this action, he will attempt to obtain the documents he desires via her attorney of record. (Doc.
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63, p. 7.) Thus, the request is WITHDRAWN.
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Plaintiff’s Request:
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Photographs of the correctional officers and nurses at Fresno County Jail.
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Argument & Ruling: Plaintiff also withdrew this portion of his motion in his reply.
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(Doc. 63, p. 7.)
ORDER
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Based upon the foregoing, the Court ORDERS:
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(1) Plaintiff's motion to compel further production of documents, filed on September 17,
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2015 (Doc. 53), is GRANTED and DENIED as discussed in detail in this order; and
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(2) all further responses as ordered herein are to be served on Plaintiff within 30 days of
the date of service of this order.
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IT IS SO ORDERED.
Dated:
December 9, 2015
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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