Perrotte v. Johnson et al

Filing 179

ORDER Regarding Plaintiff's Requests for Issuance of Subpoenas re 130 , 141 , 148 , signed by Magistrate Judge Stanley A. Boone on 1/11/19. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JEFFREY P. PERROTTE,

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Plaintiff,

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v.
STACEY JOHNSON, et al.,

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Defendants.

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ORDER REGARDING PLAINTIFF’S REQUESTS
FOR ISSUANCE OF SUBPOENAS
[ECF Nos. 130, 141, 148]

pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff’s request for issuance of subpoenas, filed April 2, 2018

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Case No. 1:15-cv-00026-LJO-SAB (PC)

Plaintiff Jeffrey P. Perrotte is appearing pro se and in forma pauperis in this civil rights action

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and May 4, 2018, respectively.
Following briefing and resolution of exhaustion of the administrative remedies, this action is

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proceeding only against Defendant Johnson for placement of a false CDCR Form 129-B in his central

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file and placement in the A.S.U. (ECF Nos. 157, 161.) Therefore, Plaintiff’s request for subpoenas as

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to any other claims and Defendants shall be denied as moot. For the following reasons, Plaintiff’s

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requests must be denied, without prejudice.

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I.

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DISCUSSION

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A. Legal Standard

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Pro se litigants who proceed in forma pauperis are entitled to invoke a district court’s subpoena

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power and have the United States Marshal serve process. 28 U.S.C. § 1915(d). However, this right is

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subject to the requirements of the discovery rules and the court’s duty to ensure that a subpoena does

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not impose an undue burden or expense on the person subject to that subpoena. Avery v. Pazos, Case

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No. 2:06-cv0-01400-FCD-KJM, 2007 WL 4284729, at *1 (E.D. Cal. Dec. 5, 2007). The scope of

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discovery through a subpoena is the same as that applicable to Rule 26 and the other discovery rules.

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Couch v. Wan, Case No. 1:18-cv-01621-LJO-DLB, 2011 WL 2551546, at *2 (E.D. Cal. June 24,

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2011); see also Fed. R. Civ. P. 45 Advisory Committee Notes 1991 Amendment.

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The Court will authorize the Clerk’s Office to issue a subpoena duces tecum commanding a

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third party to produce documents only if (1) Plaintiff is unable to obtain the documents directly from

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Defendant and (2) he thereafter files a motion to compel which results in a determination that he is

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entitled to the documents but Defendant lacks possession, custody, or control over them. See Fed. R.

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Civ. P. 45(d) (parties have a duty to avoid imposing undue burden or expense on a person subject to

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subpoena and courts are required to enforce this duty) (quotation marks omitted); Ollier v. Sweetwater

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Union High School Dist., 768 F.3d 843, 862 (9th Cir. 2014) (district courts have “wide discretion in

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controlling discovery.”) (internal quotation marks and citation omitted).

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Rule 45 requires the Court to quash any subpoena that “requires the disclosure of privileged or

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other protected matter” or “subjects a person to an undue burden.” In addition, a motion for issuance

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of a subpoena duces tecum should (1) clearly identify the documents sought and from whom, and (2)

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demonstrate that the records are obtainable only through the identified third party.” Alexander v.

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California Dep’t of Corr. et al., Case No. 2:08-cv-02773-MCE-KJN, 2010 WL 4069953, at *2 (E.D.

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Cal. Oct. 18, 2010).
Plaintiff’s April 2, 2018 Request

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B.

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In his April 2, 2018 request, Plaintiff seeks the Court to issue the following seven subpoenas:

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(1) CDCR Office of Correctional Safety, Attention Litigation Coordinator Manuel Lujan. “All
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materials regarding an investigation involving and/or relating to Jeffrey P. Perrotte, H-89472,

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including, but not limited to, the investigation conducted by Senior Special Agent Santos (report no.

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12762-027-11) regarding an escape letter postmarked April 2011 and intercepted by staff. Include all

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theories or notes between C.S.A.T.F. investigators and Stacey Johnson’s suspected involvement.”

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(2) Custodian of Records at Walden House. “Complete employee files of Sue Rudd, Jean

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LeFlore and Stacey Johnson, including allegations of investigations of misconduct, reason for

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termination. Name and last contact information of all present and former employees who worked at

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Corcoran SATF from November 2008 through September 2011. All records pertaining to the training

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employees of Walden House receive regarding inmate rights. All records regarding personnel

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misconduct, or allegations, of employees at Corcoran SATF from Nov. 2008 through Sep. 2011. All

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training Walden House employees receive on CDCR policies in dealing with inmates. Copy of all

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materials provided to residents on rules and ‘family values.’ Process required of residents filing a

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grievance.

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(3) CDCR Appeals Coordinator Corcoran, SATF. “All grievances filed (602’s) on facility F

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against Walden House or its counselors, for any reason, from Nov. 2008 through Sep. 2011, include

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all staff responses at all levels.”

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(4) Warden at Corcoran SATF. “All documents and investigation notes regarding the ordered

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investigation of April 2011 of Jeffrey P. Perrotte, H89472, regarding an ‘escape’ letter intercepted by

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ASU staff and the information generated regarding possible involvement, or circumstantial evidence

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of Stacey Johnson. All documents generated regarding allegations of misconduct against Walden

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House by Jeffrey P. Perrottee, H89472, or any other staff or resident.”

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(5) Warden at Corcoran SATF. “All policies and procedures in safety of inmates housed in

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administrative segregation. Specifically, in insuring low-level inmates are protected from high-level,

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validated members of an STG-1, safety determinates, or red flags used by staff in classifying an

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inmate for appropriate housing and policy on validated housing and policy in validated gang members

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in relation to non-validated, non-gang members.

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(6) Warden at Corcoran SATF. “All training CDCR provides to Walden House regarding the

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protection of inmate rights. All documents notifying the institution of the termination of Sue Rudd in

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March or April 2011. Reason for termination, etc. Any discrepancies discovered in the ‘family

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values’ enforced by Walden House that are contrary to well-established rights to be afforded inmates.”

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(7) Board of Parole Hearings. “All communications prepared by the Board during decision

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review of Jeffrey P. Perrotte, H89472 grant of parole on April 3, 2013, and forwarded to Governor’s

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office, including highlighted disciplinaries or informational chronos which the Governor mentioned in

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the grant ‘reversal.’ This includes the mentioning and reference to an ‘escape’ letter intercepted by

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prison staff.”

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Ruling: Plaintiff’s requests for subpoenas are vague, ambiguous, overbroad and irrelevant to

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his retaliation claim against Defendant Stacey Johnson for placement of a false CDCR Form 129-B in

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his central file and placement in the A.S.U. More specifically, the requests for information relating to

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an escape letter are irrelevant. Accordingly, Plaintiff’s requests for subpoenas shall be denied, without

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prejudice.

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C.

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In Plaintiff’s May 4, 2018 request, Plaintiff merely seeks the Court to issue “blank” subpoenas

Plaintiff’s May 4, 2018 Request for Subpoenas

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to him to obtain necessary documentation to prosecute this action. As explained above, Plaintiff

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cannot make a “blank” request for subpoenas, but rather must make a specific showing of the

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necessity of such subpoenas. Accordingly, Plaintiff’s request for issuance of “blank” subpoenas must

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be denied, without prejudice.
Plaintiff’s May 21, 2018 Request for Subpoenas

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D.

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In his May 21, 2018 motion, Plaintiff again seeks issuance of subpoenas. Plaintiff seeks the

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Court to issue the following seven subpoenas:
(1) Richard J. Donovan Correctional Facility, Attention Litigation Coordinator. “All phone

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records and recordings placed to: 760-408-0400 on 6-29.-17, Oct. 3-15, 2017, 2-14-18, 3-7-18, 2-26-

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18, 3-20-18, 3-21-18, 4-12-18, 4-13-18 (There will be more, if dates are discovered).”

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(2) Riverside County Jail, Larry D. Smith Facility. “All phone records, recordings and

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transcripts made by Jeffrey P. Perrotte, D.O.B. 7-30-63 during the following two periods and booking

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#’s, 201649037 from 12-13-16 through 1-30-17 and 201747324 from 12-11-17 through 3-11-18.”
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(3) CDCR Office of Public Safety, Manuel Lujan. “All materials regarding an investigation

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involving Walden House employee Stacey Johnson while a C.S.A.T.F, including, but not limited to,

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even involving an escape letter mailed to inmate Jeffrey P. Perrotte, H-89472, postmarked, April 2011.

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Include all investigatory notes and information received, as well as unofficial or official conclusions.

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Any and all investigations conducted of Walden House and/or employees at C.S.A.T.F. from 2008

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through 2015.”

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(4) Custodian of Records at Walden House. “Copies of employee records including

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complaints, grievances, warnings, disciplinary investigative documents of (former) Stacey Johnson,

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Sue Rudd, and Jean LeFlore. Name and last known contact information of all present and former

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employees of Walden House who, for any amount of time, worked at the Corcoran Substance Abuse

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Treatment Facility from 2008 through 2015. All records related to the training, including curriculum

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Walden House employees receive on rights to be afforded inmates, grievance processes and due

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process. All materials used in the teaching of ‘Family Values.’ All records and investigations

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regarding suspected or actual employee misconduct of Walden House employees at C.S.A.T.F. from

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2008 through 2015. All behavior modification techniques employed (descript by Walden House at

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C.S.A.T.F including, the Bench, Contracts, Pull-ups, Core Group, etc. Copy of all grievances and

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complaints by residents or mentors against Walden House providers supervisors during 2008 through

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2015. Process on a resident filing a grievance. All training mentors and mentor candidates receive.

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All training Walden House receives from CDCR on inmate/staff relations. Copies of all CDCR-115

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RVR’s written by Walden House providers. All complaints received by Walden House employees on

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Stacey Johnson and Jean LeFlore. All documented instances of staff misconduct at SATF.”

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(5) CDCR Appeals Coordinator. “Produce all grievances received from 2008 through 2015

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on: (a) filed by any inmate against Walden House (supervisors or providers) on F. or G. Facility for

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any reason, including all responses, at every level; (b) all staff misconduct appeals received on Walden

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House employees; (c) all retaliation appeals on Walden House employees, include all screened-out

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appeals as well.”

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(6) Warden at C.S.A.T.F. “All documents and investigatory notes regarding the ordered

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investigation of April 2011 on inmate Perrotte, H-89472, regarding intercepted escape letter by A.S.U.

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staff on April 2011 which special agent John Santos, CDCR, stated all evidence seems to point to the

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incident with Stacey Johnson. All documents and notes generated by I.S.U. Lt. S. Ramirez on

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investigation of Stacey Johnson and all Walden House employees at this time and from 2008 through

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2015 on allegations of misconduct. Investigation of assault on inmate Perrotte, J. H-89472, when

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housed in ad-seg on 4-19-11, including, all records on assailant, inmate Stroud, P-49247, including

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validations, history of violence, all received CDC rules violation reports including from this incident,

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reason in ad-seg level and security concerns. List all CDCR staff working in ad-seg at 1717 hours on

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4-19-2011, copy of all log books for 4-19-11 of ad-seg. Provide a detailed and concise report of all

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training provided to ASU staff on the placement of inmates in cell. Provide all training and operations

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policies at C.S.A.T.F. placement. Provide all incidents of inmates on Fac. F being attacked or killed

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by inmates being brought to F Fac. From other G.P. yards A&B from 2008-2011. All RVR’s issued.

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All investigations conducted as a result of inmate Perrotte, H-89472 being placed in ad-seg on 4-19-11

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for allegations made by ‘S’ against Walden House. All investigations conducted regarding staff

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misconduct appeals filed by inmate Perrotte, H-89472, including screened-out appeals, against Stacey

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Johnson, Jean LeFlore, and Cindy Hebron. All appeals filed by any inmate alleging a failed or

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inadequate grievance process at SATF from 2008 through 2011. All written and unwritten policies on

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the placement of validated and non-validated inmates in ad-seg and housing determinants. All

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classification notes and institution investigations into CDCR-128B informational chrono authored by

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Stacey Johnson on 4-13-18 where Johnson states inmates informed her that inmate Perrotte, H89472

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was going to ‘have Johnson hurt.’ Include classification notes of 6-15-11 and 6-22-11 where

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committee noted the chrono was questionable and it was better for inmate Perrotte, H89472 to be kept

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away from Stacey Johnson so something worse wasn’t alleged. All policies and rules regarding

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protecting Level II inmates from valided STG-1 Level IV inmates with significant in-prison violence.

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Criteria for STG classification. All training CSATF provided to Walden House to insure for the

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protection of inmate rights. All documents regarding the termination in April 2011 of Walden House

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employee Sue Rudd by Stacey Johnson and Jean LeFlore. How C.S.A.T.F insured Walden Houses

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‘Family Values’ did not trump the due process to be afforded inmates. All agreements and
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expectations conveyed to Walden House on the treatment of inmates including training material on

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what constitutes retaliation. List of all Walden House employees denied access into C.S.A.T.F for

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cause, re investigation(s).”
(7) Board of Parole Hearings. All communications prepared by the BPH during 2010, 2012,

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2013, 2014, Parole Hearing Decision Review on Perrotte, J, H-89472 on 2010 denial and 2012, 2013,

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grant of parole resulting in reversal and 2015’s grant of parole including BPH’s memorandum to the

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Governor. This includes any BPH document memorandum, note, or recording, or hearing transcript

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mentioning or referencing a CDC-128B chrono dated 4-13-18 by Stacey Johnson and an ‘escape

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letter’ intercepted by prison staff which had been mailed to inmate Perrotte, H-89472, in April, 2011.

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All documents received and prepared regarding parole revocation of inmate Perrotte, J, H-89472,

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including: report and recommendation by Agent Bolton and Supervisor PVDMI CDCR-Form 1500,

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copy of field file, and copy of all interviews conducted. DAPO and BPH policies regarding overriding

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PVDMI and intermediate sanctions. All policies related to the retroactive application of new parole

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laws from AB-109, 117, ‘2011 Realignment Act,’ regarding parole revocation for former life inmates

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and any analysis of ex post facto.”
Ruling: Plaintiff’s requests for subpoenas are vague, ambiguous, overbroad and irrelevant to

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his retaliation claim against Defendant Stacey Johnson for placement of a false CDCR Form 129-B in

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his central file and placement in the A.S.U. More specifically, the requests for information relating to

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an escape letter are irrelevant. Accordingly, Plaintiff’s requests for subpoenas shall be denied, without

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prejudice.

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IT IS SO ORDERED.

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Dated:

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January 11, 2019
UNITED STATES MAGISTRATE JUDGE

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