Van Buren v. Waddle et al
Filing
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ORDER DENYING In Part, GRANTING In Part, and Deferring In Part Plaintiff's 32 Motion to Compel Defendants to Produce Documents, signed by Magistrate Judge Michael J. Seng on 6/28/16. Fourteen Day Deadline. (Marrujo, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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IRVIN VAN BUREN,
Plaintiff,
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v.
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C. WADDLE, et al.,
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Defendants.
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Case No. 1:14-cv-01894-DAD-MJS (PC)
ORDER DENYING IN PART,
GRANTING IN PART, AND
DEFERRING IN PART PLAINTIFF’S
MOTION TO COMPEL DEFENDANTS
TO PRODUCE DOCUMENTS
(ECF No. 32)
FOURTEEN DAY DEADLINE
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
18 rights action brought pursuant to 28 U.S.C. § 1983. The case proceeds against
19 Defendants Waddle, Neibert, Ronquillo, and Walinga for excessive force and against
20 Defendant Waddle for failure to protect, all in violation of the Eighth Amendment of the
21 Constitution, and against Defendant Lesniak for violating Plaintiff’s Fourteenth
22 Amendment procedural due process rights during a rules violation hearing (ECF No. 7.)
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Before the Court is Plaintiff’s March 7, 2016, motion to compel discovery. (ECF
24 No. 32, hereafter “Pl. Mot. to Compel.”) Defendants filed their opposition to Plaintiff’s
25 motion to compel on March 30, 2016. (ECF No. 38, hereafter “D. Opp’n.”) Plaintiff did
26 not file a reply. The matter is submitted pursuant to Local Rule 230(/).
27 I.
PROCEDURAL HISTORY
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On October 19, 2015, Plaintiff propounded his first set of discovery on Defendant
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(“Set 1”), including six Requests for Production of Documents (“RPD”). Pl. Mot. Compel,
Ex. A. On December 17, 2015, Defendants responded to Plaintiff’s Set 1. Pl. Mot. to
Compel, Ex. B.
On December 31, 2015, Plaintiff propounded his second set of
discovery (“Set 2”), which included two more RPDs. Pl. Mot. to Compel, Ex. C. On
February 16, 2016, Defendants submitted responses to Plaintiff’s Set 2. Pl. Mot. to
Compel, Ex. E.
Dissatisfied with Defendants’ responses to certain RPDs propounded in Set 1
and Set 2, Plaintiff filed a motion to compel on March 7, 2016. Defendants filed their
opposition on March 30, 2016.
After an initial review of these filings, the Court
scheduled a telephonic discovery dispute conference (“TDDC”) to try to resolve the
disputes informally.
In anticipation of the TDDC, the Court directed Defendants to
submit for in camera review: (1) reports in Defendants possession, custody, or subject
to their control of the investigation of the incident at issue in this case; (2) a list of all
identified witnesses to the incident at issue and copies of all statements in Defendants
possession, custody, or subject to their control given by or taken from witnesses to the
incident; and (3) a listing by date, type and duration of all known incidents of gang
violence and/or gang-related lockdowns in C facility during the time period from
February 1, 2014 to May 30, 2014.
On June 17, 2016, Defendants submitted the following documents for the Court’s
review: CDCR Form 115 Rules Violation Reports; CDCR Form 837 Crime Incident
Reports; CDCR Forms 3036, 3034, 3014, 3012, 3011, and 3010 (collectively, “Use of
Force Critique documents”); a holding cell log from May 14, 2014; and a general chrono
reflecting the date and time Plaintiff viewed his videotaped interview.
Defendants
explained that they were unable to provide lockdown records because they were still
trying to compile them.
On June 22, 2016, the parties, Irvin Van Buren, appearing pro se, and Deputy
Attorney General Gabriel Ullrich, on behalf of all Defendants, participated in the
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telephonic discovery dispute conference.
II.
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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.
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A party may serve on any other party a request within the scope of Rule 26(b) to
“produce and permit the requesting party or its representative to inspect, copy, test, or
sample” any documents, electronically stored information, or tangible things “in the
responding party's possession, custody or control.” Fed. R. Civ. P. 34(a)(1) . A party
may move for an order compelling production where the opposing party fails to produce
documents as requested under Rule 34. Fed. R. Civ. P. 37(a)(3)(B)(iv).
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LEGAL STANDARD
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, No. CIV S-10-2892 GGH P., 2012 WL 113799, at
*1 (E.D. Cal. Jan. 13, 2012); Ellis v. Cambra, No. 1:02-cv-05646-AWI-SMS (PC), 2008
WL 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, No. CIV S-11-1030 MCE EFB P., 2011 WL 6703958, at *3 (E.D. Cal. Dec. 21,
2011).
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, the determination
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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)).
III.
DISCUSSION
Plaintiff’s motion to compel seeks the production of the following evidence. After
reviewing the parties’ filings and discussing each party’s position during the TDDC, the
Court rules as follows with regard to each such request:
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A.
RPD No. 5, Set 2:
Request (ECF 32 at 13):
For the reasons that Plaintiff does not know the names of these inmates
who was (sic) in the C Facility Medical Clinic at the time of the incident
involving the Plaintiff, but may have been a witness to this incident in
question (sic); Plaintiff requests of the defendant to produce to Plaintiff:
the names of all the inmates who was (sic) scheduled and
transported to the C Facility Medical Clinic on the date of 5/14/2014
and was held in the C Facility Medical Clinic’s holding cell.
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Response (ECF No. 32 at 17):
Responding Party objects that the request is outside the scope of
discovery, as the incident did not happen at the C Facility Medical Clinic,
and that the request might seek private medical information. Without
waiving the objection, Responding Party is not aware of any responsive,
discoverable documents.
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Plaintiff argues the excessive force in question occurred on the C Facility Patio,
which, Plaintiff claims, is adjacent to the medical clinic. Plaintiff believes there are
inmates who were in the medical clinic at the time who may have witnessed the
incident. Plaintiff seeks only those inmates’ identities, not any other information about
them or their reason for being in the area. At the TDDC, Plaintiff acknowledged that he
did not know whether any such inmates witnessed the attack; he knows only that some
witnessed his injuries after the fact and may have been in a position to have observed
the event.
Defendants raise several objections.
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First, they argue that Plaintiff’s request
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improperly seeks confidential health information. Also, they argue that to seek out,
interview, and depose these witnesses would be costly, time-consuming, burdensome
and oppressive. Finally, Defendants argue that the witnesses can make no relevant
contribution because the alleged excessive force event occurred in a location not
viewable from the medical clinic. They propose photographing the sightlines between
the medical clinic and the patio where the event occurred to show the latter was not
within sight of the former. Defendants also offered to provide the names of prison
employees working in the medical clinic at the time.
The Court concludes that identifying individuals in the vicinity would not reveal
medical or other confidential information. It also concludes that Defendants’ proposal to
provide photographs showing whether or not the Facility Patio is viewable from the
medical clinic would likely precipitate a mini trial as to the objectivity of the photographs
and thus was not the most efficient or productive way to proceed at this time. It seems
Defendants could relatively easily and economically determine which individuals were in
the clinic in the 30 or so minutes preceding and following the time of the alleged
incident. Defendants were directed to so inquire and report, at or prior to a continued
4:00 PM, July 20, 2016 TDDC, their success or inability in doing so.
If potential
witnesses, if any, are identified, the parties, with Court assistance if need be, can
undertake to determine whether any purport to have seen the incident and, if so, if they
recall what they saw.
Ruling on this request will therefore be deferred until the continued July 20, 2016
TDDC.
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RPD No. 6, Set 1:
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Request (ECF 32 at 13):
Plaintiff requests of Defendant to produce for inspection reasons; (sic) “all
documentation” of incident reports and lock-downs statas (sic)
reports of C Facility program yard during the timeframe period of
February 1, 2014 through May 30, 2014.
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Response (ECF No. 52-1 at 5):
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Responding Party objects that the request is outside the scope of
discovery, as the incident does not pertain to any lockdown and
Responding Party is informed that the lockdown ended a day before the
incident. Responding Party will not comply with the request.
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Plaintiff argues that the lockdown records will show the frequency of C Facility
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lockdowns attributable to high levels of gang violence which in turn put Defendants on
notice of the heightened risk to Plaintiff of a gang-related attack and thus should have
led Defendants to take additional steps to protect Plaintiff from that risk.
Defendants argue that lockdown records are irrelevant to Plaintiff’s claims, which
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do not involve gang-related violence.
voluminous, and it would be burdensome to produce them.
Plaintiff’s failure to protect claim proceeds on his allegation that Defendant
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Moreover, they claim, lockdown records are
Waddle failed to protect him from a risk of harm at the hands of prison gang members
by housing him in the C Facility alongside Plaintiff’s known enemies.1 The correlation
Plaintiff seeks to establish between the prison lockdown records and the risk to
Plaintiff’s safety, however, is tenuous as best and will not warrant the production of all
lock down records. The alleged attack at issue came at the hands of prison staff. There
is no allegation here that Plaintiff suffered an attack by any member of any gang.
Plaintiff fear of the “Mexican 2-5” gang and Defendant Waddle’s alleged failure to
protect him from that gang is not alleged to have caused any actual damage to Plaintiff
while he was housed at KVSP. Even if the contrary were true, the frequency of lockdowns would shed little light on the reasonableness of Plaintiff’s concerns, and much
less on Defendant’s imputed knowledge of the validity of those concerns and the need
to protect him against them. In short, the Court concludes that the potential relevancy
of such lockdown records is so remote as not to justify the cost and time of producing
them. Plaintiff’s request for lockdown records will therefore be denied. However, as
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During the TDDC, there was a dispute over the basis for Plaintiff’s Eighth Amendment failure to protect claim
27 against Defendant Waddle. Plaintiff argued that Defendant Waddle failed to protect him from gang violence.
Defendants believed Defendant Waddle was charged with failing to protect Plaintiff from violence at the hands of
28 Defendants Ronquillo, Walinga, and Neibert. Review of the pleadings shows that Plaintiff is correct.
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noted during the TDDDC, nothing in this ruling precludes Plaintiff from testifying as to
his own knowledge of the number of lockdowns if the Court finds that knowledge to be
relevant.
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Request (ECF No. 32 at 21):
For the reasons that Plaintiff does not have in his current possession (sic),
Plaintiff requests that Defendant produce for him; (sic) the photos of all
the injuries Plaintiff suffered on the date of May 14, 2014 during the
incident in question.
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Response (ECF No. 32 at 27):
Responding Party objects that the request is argumentative and
Responding Party denies that Plaintiff was injured in the incident. Without
waiving the objection, Responding Party will comply with the request in
whole and produce the two photographs taken of Plaintiff shortly after the
incident.
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RPD No. 1, Set 2:
During the TDDC, Plaintiff acknowledged that the issue regarding the
photographs had been resolved and he withdrew his request for an order related
thereto. Plaintiff’s request will therefore be denied as moot
D.
RPD No. 2, Set 2
Request (ECF No. 32 at 21-22):
For the reasons that Plaintiff does not have access to the information in
question, Plaintiff requests that Defendant produce for Plaintiff; (sic) (1) a
list of all the surveillance cameras depicted on the lower C facility
from the Salley Port patio area, as well as on the main lower yard
area, and (2) requesting a diagram photo of the two areas depicting
the locations of all the cameras in question.
Response (ECF No. 32 at 27-28):
Responding Party objects that the request is not proportional to the needs
of the case, as Defendants have already submitted a sworn declaration
from the institution’s person most qualified that the incident was not video
recorded and the C facility Patio is not video recorded. Responding Party
further objects that the request calls for information protected under the
official information privilege, as the request calls for information protected
under the official information privilege, as the request for information about
inmate surveillance calls for state secretes (sic) and invokes government
privilege. Kerr v. U.S. Dist. Ct., 511 F.2d 192 (9th Cir. 1975). Finally,
Responding Party is not aware of any “list” of the surveillance cameras to
produce or a diagram photograph of “all the cameras in question,”
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therefore there is nothing in Responding Party’s possession, custody or
control to produce. Plaintiff is directed to the Declaration of B. Hancock in
support of Defendant Lesniak’s motion for summary judgment, which
explains that there are no video recording devices on the C Facility Patio
or anywhere in the institution which record the C Facility Patio. No
production will be made in response to this request.
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As an initial matter, the Court agrees (and Plaintiff did not dispute) that providing
an inmate with a diagram depicting the locations of video surveillance cameras within
the prison could create a serious security issue. Plaintiff’s request for a diagram of the
video cameras will therefore be denied.
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Defendants assert that no video camera filmed the area where the incident took
place. They have submitted, in support, a sworn declaration from Litigation Coordinator
B. Hancock, the individual charged with maintaining the video surveillance and
recording systems at KVSP. (ECF No. 18-1.) Plaintiff concedes that he has no direct
evidence to the contrary; he simply finds it unlikely that the area would not have been
under surveillance.
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The Court cannot compel Defendants to produce that which they declare under
penalty of perjury does not exist. However, for reasons discussed below,2 Defendants
are well advised to renew their investigation into the possible existence of a videotape
of the incident and, of course, give notice if that investigation reveals that any such
video exists or ever existed. Defendants shall advise of the results of this investigation
at the July 20, 2016 TDDC.
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E.
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Documents Reviewed In Camera
Plaintiff and Defendants confirmed that Plaintiff has received a copy of every
document reviewed in camera except for those within the Use of Force Critique.
Defense counsel objected to turning over the Use of Force Critique documents on the
ground that they would reveal the nature and manner of investigation of such matters in
a way that prisoners, aware of same, could conceivably create a scenario which would
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See footnote 3, below.
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be more likely to expose a correctional officer to criticism.
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With one exception, the Court agrees with Defendants’ position.
contain checklists of the numerous factors the institution considers when conducting
internal review of staff use of force incidents. To disclose these to an inmate could
enable him to tailor his excessive force claims to conform to the factors on the lists,
thereby making them appear more credible. Moreover, with the same single exception
mentioned above, the Court’s in camera review of those documents revealed nothing
that was favorable to, or would support or corroborate, directly or indirectly, any of
Plaintiff’s claims. In short, the security concerns expressed by Defendants far outweigh
any interest Plaintiff may have in reviewing the documents.
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The twice-mentioned “exception” is the CDCR Form 3014 “Use of Force Critique,
Report of Findings – Inmate Interview,” signed by Lt. R. Molina, and dated May 26,
2014.
This document contains statements attributed to Plaintiff by prison officials
investigating his allegations of excessive force.
It does not appear to contain any
privileged information or material in need of protection for security reasons. Moreover,
Defense counsel advised that while the CDCR does not typically provide Use of Force
Critique forms to prisoner litigants, Plaintiff’s CDCR Form 3014 appeared “innocuous.”
Therefore, Defendants shall provide Plaintiff with a copy of the May 26, 2014 CDCR
Form 30143, but no other Use of Force documents.
IV.
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The forms
CONCLUSION AND ORDER
For the foregoing reasons, as to Plaintiff’s motion to compel (ECF No. 32) IT IS
HEREBY ORDERED as follows:
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1. The ruling on Plaintiff’s request for the names of any inmates present in the
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medical facility on May 14, 2014 is DEFERRED until the July 20, 2016
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On the second page of that form, there is a checklist of the types of evidence a reviewing authority may
26 consider in determining whether Plaintiff was subjected to excessive force. One of the items checked as
having been reviewed in this case is “Incident Videotape.” On its face, this statement is inconsistent with
27 the Hancock Declaration discussed above. Hence, the above-noted need for further investigation into the
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possible existence of a video of the incident.
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telephonic discovery dispute conference, pending Defendants’ further
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investigation;
2. Plaintiff’s request for lockdown records spanning the period from February 1,
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2014 to May 30, 2014 is DENIED;
3. Plaintiff’s request for additional photographs of his injuries is DENIED as
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moot;
4. Plaintiff’s request for a diagram depicting the locations of surveillance
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cameras within KVSP is DENIED;
5. Plaintiff’s request for information regarding surveillance cameras on the C
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Facility Patio is GRANTED in part: Defendants are directed to further inquire
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into the presence of surveillance cameras on the C Facility Patio and disclose
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their findings to Plaintiff; and
As to the documents provided to the Court for in camera review, IT IS HEREBY
ORDERED:
6. Defendant shall provide Plaintiff with a copy of the CDCR Form 3014 (the
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Inmate Interview) within fourteen days of this order;
7. Defendants are not required to turn over CDCR Forms 3036, 3034, 3012,
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3011, and 3010 to Plaintiff.
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Dated:
June 28, 2016
/s/
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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