Bird v. Mayhew, et al.

Filing 30

ORDER GRANTING IN PART and DENYING IN PART Plaintiff's Motion to Compel Discovery From Defendant 27 , signed by Magistrate Judge Stanley A. Boone on 1/29/16: 30-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL BIRD,

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Plaintiff,

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v.
DONALD MAYHEW,

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Defendant.

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Case No.: 1:15-cv-00298-LJO-SAB (PC)
ORDER GRANTING IN PART AND DENYING
PART PLAINTIFF‟S MOTION TO COMPEL
DISCOVERY FROM DEFENDANT
[ECF No. 27]

Plaintiff Michael Bird is appearing pro se in this civil rights action pursuant to 42 U.S.C. §

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1983. This action was removed from the Madera County Superior Court to this Court on February 25,

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2015.

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This action is proceeding against Defendant Donald Mayhew for excessive force and
negligence.
On December 8, 2015, Plaintiff filed a motion to compel discovery from Defendant.
Defendant filed an opposition on December 30, 2015.

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I.

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DISCUSSION

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A.

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Plaintiff is proceeding pro se and he is a state prisoner challenging his conditions of

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confinement.

Legal Standard

As a result, the parties were relieved of some of the requirements which would
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otherwise apply, including initial disclosure and the need to meet and confer in good faith prior to

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involving the Court in a discovery dispute. Fed. R. Civ. P. 26(a)(1); Fed. R. Civ. P. 26(c); Fed. R. Civ.

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P. 37(a)(1); Local Rules 240, 251; ECF No. 26, Discovery and Scheduling Order, &4. Further, where

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otherwise discoverable information would pose a threat to the safety and security of the prison or

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infringe upon a protected privacy interest, a need may arise for the Court to balance interests in

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determining whether disclosure should occur.

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Rhinehart, 467 U.S. 20, 35 n.21 (1984) (privacy rights or interests implicit in broad purpose and

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language of Rule 26(c)); Burlington N. & Santa Fe Ry. Co. v. United States Dist. Court for the Dist. of

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Montana, 408 F.3d 1142, 1149 (9th Cir. 2005) (discussing assertion of privilege); Soto v. City of

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Concord, 162 F.R.D. 603, 616 (N.D. Cal. 1995) (recognizing a constitutionally-based right of privacy

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that can be raised in discovery); see also Garcia v. Clark, No. 1:10-CV-00447-LJO-DLB PC, 2012

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WL 1232315, at *6 n.5 (E.D. Cal. Apr. 12, 2012) (noting inmate=s entitlement to inspect discoverable

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information may be accommodated in ways which mitigate institutional safety concerns); Robinson v.

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Adams, No. 1:08-cv-01380-AWI-BAM PC, 2012 WL 912746, at *2-3 (E.D. Cal. Mar. 16, 2012)

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(issuing protective order regarding documents containing information which implicated the safety and

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security of the prison); Orr v. Hernandez, No. CV-08-0472-JLQ, 2012 WL 761355, at *1-2 (E.D. Cal.

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Mar. 7, 2012) (addressing requests for protective order and for redaction of information asserted to

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risk jeopardizing safety and security of inmates or the institution if released); Womack v. Virga, No.

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CIV S-11-1030 MCE EFB P, 2011 WL 6703958, at *5-6 (E.D. Cal. Dec. 21, 2011) (requiring

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defendants to submit withheld documents for in camera review or move for a protective order).

See Fed. R. Civ. P. 26(c); Seattle Times Co. v.

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However, this is a civil action to which the Federal Rules of Civil Procedure apply. The

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discovery process is subject to the overriding limitation of good faith, and callous disregard of

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discovery responsibilities cannot be condoned. Asea, Inc. v. Southern Pac. Transp. Co., 669 F.2d

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1242, 1246 (9th Cir. 1981) (quotation marks and citation omitted). Parties may obtain discovery

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regarding any nonprivileged matter that is relevant to any party=s claim or defense, and for good cause,

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the Court may order discovery of any matter relevant to the subject matter involved in the action. Fed.

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R. Civ. P. 26(b)(1) (quotation marks omitted). Relevant information need not be admissible at the trial

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if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. Id.

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(quotation marks omitted).

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Generally, if the responding party objects to a discovery request, the party moving to compel

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bears the burden of demonstrating why the objections are not justified. Grabek v. Dickinson, No. CIV

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S-10-2892 GGH P, 2012 WL 113799, at *1 (E.D. Cal. Jan. 13, 2012); Womack, 2011 WL 6703958, at

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*3; Mitchell v. Felker, No. CV 08-119RAJ, 2010 WL 3835765, at *2 (E.D. Cal. Sep. 29, 2010); Ellis

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v. Cambra, No. 1:02-cv-05646-AWI-SMS PC, 2008 WL 860523, at *4 (E.D. Cal. Mar. 27, 2008).

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This requires the moving party to inform the Court which discovery requests are the subject of the

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motion to compel, and, for each disputed response, why the information sought is relevant and why

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the responding party=s objections are not meritorious. Grabek, 2012 WL 113799, at *1; Womack,

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2011 WL 6703958, at *3; Mitchell, 2010 WL 3835765, at *2; Ellis, 2008 WL 860523, at *4.

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However, the Court is vested with broad discretion to manage discovery and notwithstanding these

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procedures, Plaintiff is entitled to leniency as a pro se litigation; therefore, to the extent possible, the

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Court endeavors to resolve his motion to compel on its merits. Hunt v. County of Orange, 672 F.3d

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606, 616 (9th Cir. 2012); Surfvivor Media, Inc. v. Survivor Productions, 406 F.3d 625, 635 (9th Cir.

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2005); Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002).

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B.

Motion to Compel

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

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

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the responding party=s possession, custody or control: any designated documents or tangible things.

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Fed. R. Civ. P. 34(a)(1) (quotation marks omitted). AProperty is deemed within a party=s >possession,

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custody, or control= if the party has actual possession, custody, or control thereof or the legal right to

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obtain the property on demand.@ Allen v. Woodford, No. CV-F-05-1104 OWW LJO, 2007 WL

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309945, *2 (E.D. Cal. Jan. 30, 2007) (citing In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir.

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1995)); accord Bovarie v. Schwarzenegger, No. 08cv1661 LAB (NLS), 2011 WL 719206, at *4 (S.D.

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Cal. Feb. 22, 2011); Evans v. Tilton, No. 1:07CV01814 DLB PC, 2010 WL 1136216, at *1 (E.D. Cal.

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Mar. 19, 2010).

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In responding to discovery requests, a reasonable inquiry must be made, and if no responsive

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documents or tangible things exist, Fed. R. Civ. P. 26(g)(1), the responding party should so state with

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sufficient specificity to allow the Court to determine whether the party made a reasonable inquiry and

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exercised due diligence, Uribe v. McKesson, No. 08cv1285 DMS (NLS), 2010 WL 892093, at *2-3

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(E.D. Cal. Mar. 9, 2010). If responsive documents do exist but the responsive party claims lack of

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possession, control, or custody, the party must so state with sufficient specificity to allow the Court (1)

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to conclude that the responses were made after a case-specific evaluation and (2) to evaluate the merit

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of that response. Ochotorena v. Adams, No. 1:05-cv-01525-LJO-DLB (PC), 2010 WL 1035774, at

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*3-4 (E.D. Cal. Mar. 19, 2010).

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In his motion to compel, Plaintiff seeks the following: 1) any and all video-taped interviews of

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inmates and/or prison staff who were questioned on the date of the incident; 2) any notes of the July

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31, 2014 interview of Plaintiff that were generated by Lieutenant Robertson; and 3) any and all

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completed incident reports written about the June 25, 2014 incident by Valley State Prison “VSP”

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correctional officers/staff D. Mayhew, Burns, Jordan, Cotton, and VSP psych-tech M. Diaz. Plaintiff

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also seeks sanctions against Defendant.

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Request No. 1: “Any and all video-taped interviews of inmates and/or prison staff(s) who

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Request for Document Production, Set One, Number One

were questioned on the date of the incident.”
Response: “Defendant objects to this request on the ground that it is vague, ambiguous, and

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overly broad. Defendant further objects on the grounds that this request is compound. Defendant

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further objects to this request on the ground that it seeks information that is not relevant to the claims

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and defenses at issue in this action and not reasonably calculated to lead to this discovery of

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admissible evidence. Defendant further objects as this request assumes facts not in evidence.

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Defendant further objects as this request assumes facts not in evidence. Defendant further objects to

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this request to the extent that it seeks information, the disclosure of which could endanger the safety of

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other inmates and staff of the CDCR or jeopardize the security of the institution, and is therefore

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deemed confidential under Cal. Code Regs. tit. 15, § 3321.”

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“Without waiving these objections, Defendant responds as follows: There are no videos or
videotaped interviews responsive to this request.” (Sloan Decl. ¶ 2, Ex A.)

Supplemental Response: In response to Plaintiff‟s meet and confer letter dated October 21,
2015, Defendant elaborated and stated:
“This is a full and complete response as there are no videos taken concerning the incident that

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are in the possession of CDCR or Valley State Prison (VSP). A use of force video was made on the

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date of your alleged incident on June 25, 2014. However, Defendant has been unable to locate the

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video through the institution. Should this video become available, Defendant will immediately make

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the video available for viewing by the Plaintiff. Defendant reserves the right to supplement this

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response and provide the video to Plaintiff should it be located at a future date.”

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(Sloan Decl. ¶ 5, Ex. D.)

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Ruling: In response to Plaintiff‟s meet and confer letter, Defendant advised Plaintiff that after

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a diligent and reasonable search, no records responsive to this request have been located. (Sloan Decl.

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¶ 2, Ex. A; ¶ 5, Ex. D.) With specific regard to the video recording/written statements taken by

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Lieutenant Padua, on June 25, 2014, from Plaintiff, Defendant informed Plaintiff the video has not

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been located after a diligent search. (Critchlow Decl. ¶¶ 10, 12-15; Robertson Decl. ¶¶ 2, 4, 5.)

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Defendant submits that he is continuing to search for the responsive video and informed Plaintiff that

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the video will be provided to him if it is located. (Critchlow Decl. ¶ 15; Robertson Decl. ¶ 5; Sloan

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Decl. ¶ 5, Ex. D.) Absent evidence to the contrary, not present here, Plaintiff is required to accept

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Defendant‟s response that such video has not been located and if and when located, it will be

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produced. Accordingly, Plaintiff‟s motion to compel a further response is DENIED.

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2.

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Request No. 2: “Any and all notes of the July 31, 2014, interview of the plaintiff that were

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Request for Document Production, Set One, Number Two

generated by Correctional Lieutenant D. Robertson.” (Sloan Decl. ¶ 2, Ex. A.)

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Response: “Defendant objects to this request on the ground that it is vague, ambiguous, and

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overly broad. Defendant further objects [on] the grounds that this request is compound. Defendant

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further objects to this request on the ground that it seeks information that is not relevant to the claims

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and defenses at issue in this action and not reasonably calculated to lead to this discovery of
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admissible evidence. Defendant further objects as this request assumes facts not in evidence.

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Defendant further objects to this request to the extent that it seeks information, the disclosure of which

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could endanger the safety of other inmates and staff of the CDCR or jeopardize the security of the

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institution, and is therefore deemed confidential under Cal. Code Regs. tit. 15, § 3321.”

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“Without waiving these objections, Defendant responds as follows: No discoverable notes

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were generated by Correctional Lieutenant D. Robertson after any July 31, 2014 interview.”

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(Sloan Decl. ¶ 2, Ex. A.)

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Supplemental Response: In response to Plaintiff‟s meet and confer letter dated October 21,
2015, Defendant further elaborated by stating:

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“Defendant provided all discoverable documents responsive to this request along with a

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privilege log for the confidential documents. There were no additional notes taken during or after the

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July 31, 2014 interview, other than that which has already been provided or listed on the privilege log.

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Defendant will not be providing any additional information regarding this request.”

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Defendant provided a Privilege Log with his response that stated in part:

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“2. Our computerized Inmate Appeals Tracking System allows us to search for staff complaints

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submitted against CDCR personnel by name. Staff complaints are retained for five years. The

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documents responsive to Plaintiff‟s request no. 2 include the confidential portions of the appeal

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inquiry related to the appeal Plaintiff Michael Bird submitted against Officer Mayhew concerning an

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incident on June 24, 2014, identified in Log No. 1 of the privilege log, attached as Exhibit A. Officer

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Mayhew retains a privacy interest in those confidential findings under the California Code of

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Regulations, Title 15, section 3450, subsection (d) and (e), as well as the Official Information

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Privilege. Providing this information to Plaintiff would reveal to him the manner in which staff

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complaints are investigated by prison officials, and specific findings concerning the Defendant to

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which he is not entitled. Moreover, in Plaintiff‟s grievance, it was determined that Officer Mayhew

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acted appropriately, and did not violate CDCR policy. Nonetheless, allowing Plaintiff to view these

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findings creates security concerns because Plaintiff may share this information with other inmates to

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disrupt order and undermine proper respect for institutional authority. It may also provide insight to

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Plaintiff for how he could more effectively fabricate false accusations against prison officials in the
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future. It may also reduce the morale of prison staff by leaving them with the impression that

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confidential findings on accusations made against them will not be protected, and can be disseminated

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to the inmate population once a lawsuit is filed.

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3. If disclosed, it may discourage staff from speaking candidly during investigations.

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4. It is difficult to project how much harm could result from an order requiring CDCR to

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disclose the confidential portions of the appeal inquiries related to Plaintiff‟s own administrative

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appeals. Sworn peace officers believe the confidential portions of the appeal inquiries related to

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Plaintiff‟s own administrative appeals, are held in confidence, and they are held in confidence. The

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effect of the disclosure of these documents on prison staff members, who are routinely subject to false

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or unsubstantiated accusations of misconduct, is also difficult to project. At the very least, morale will

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likely suffer from such a development.”

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(Sloan Decl. ¶ 3, Ex. B.)

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In his motion to compel, Plaintiff contends the notes in which he is referring concern the use of

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force statements given by Plaintiff during the July 31, 2014, interview between himself and the

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Lieutenant. In addition, Plaintiff seeks any statements made by Defendant Mayhew to the Lieutenant

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regarding the use of force.

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Ruling: If a party receives a discovery request that would reach material that it believes is

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covered by the official information privilege may assert such objection that invokes such privilege.

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However, Defendant‟s objection on the basis of privilege is overruled. Defendant has failed to make

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the necessary showing that the requested statements made by Plaintiff and Defendant Mayhew in

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relation to Plaintiff‟s staff complaint are privileged. The Supreme Court has long noted that privileges

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are disfavored. Jaffee v. Redmond, 518 U.S. 1, 9 (1996). “The party asserting an evidentiary

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privilege has the burden to demonstrate that the privilege applies to the information in question.”

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Tornay v. United States, 840 F.2d 1424, 1426 (9th Cir. 1988). Privileges are to be “strictly construed”

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because they “impede full and free discovery of the truth.” Eureka Fin. Corp. v. Hartford Acc. and

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Idemnity Co., 136 F.R.D. 179, 183 (E. D. Cal. 1991). “If the privilege is worth protecting, a litigant

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must be prepared to expend some time to justify the assertion of the privilege.” Id.

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In civil rights cases, questions of privilege are resolved by federal law. Kerr v. U.S. District

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Court for the Northern District of California, 511 F.2d 192, 197 (9th Cir. 1975), aff‟d on procedural

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grounds, 426 U.S. 394, (1976). “State privilege doctrine, whether derived from states or court

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decisions, is not binding on federal courts in these kinds of cases.” Kelly v. City of San Jose, 114

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F.R.D. 653, 655-656 (N.D. Cal. 1987).

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Nevertheless, “[f]ederal common law recognizes a qualified privilege for official information.”

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Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir. 1990) (“[g]overnment personnel files are

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considered official information.”). The official information privilege ensures disclosure of

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discoverable information without comprising the state‟s interest in protecting the privacy of law

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enforcement officials and in ensuring the efficacy of its law enforcement system. Kelly, 114 F.R.D. at

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662-663. “To determine whether the information sought is privileged, courts must weigh the potential

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benefit of the disclosure against the potential disadvantages, if the latter is greater, the privilege bars

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discovery. Sanchez, 936 F.2d at 1033-1034. “In the context of civil rights suits against [correctional

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officials], this balancing approach should be „moderately pre-weighed in favor of disclosure.‟” Soto,

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162 F.R.D. at 613 (quoting Kelly, 114 F.R.D. at 661).

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The party invoking the privilege must at the outset make a “substantial showing” by way of a

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declaration or affidavit from a responsible official with personal knowledge of the matters attested.

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Soto v. City of Concord, 162 F.R.D. 602, 613 (N.D. Cal. 1995). “The claiming official must „have

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seen and considered the contents of the documents and himself have formed the view that on grounds

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of public interest they ought not to be produced‟ and state with specificity the rationale of the claimed

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privilege.” Kerr, 511 F.2d at 198 (citation omitted). The affidavit must include: (1) an affirmation

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that the agency generated or collected the material in issue and has maintained its confidentiality; (2) a

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statement that the official has personally reviewed the material in question; (3) a specific identification

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of the governmental or privacy interests that would be threatened by disclosure of the material to

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plaintiff and/or his lawyer; (40 a description of how disclosure subject to a carefully crafted protective

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order would create a substantial risk of harm to significant governmental or privacy interests, and (5) a

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projection of how much harm would be done to the threatened interests if disclosure were made. Soto,

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162 F.R.D. at 613. In addition, “[t]he asserting party, as in any case where a privilege is claimed, must
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sufficiently identify the documents so as to afford the requesting party an opportunity to challenge the

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assertion of privilege.” Miller, 141 F.R.D. at 300.

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Defendant asserts the official information privilege by presenting boilerplate objections that

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fails to comply with the above requirements. The only specific fact presented that is directly related to

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this case is that staff members Cotton and Jordan were interviewed in addition to Defendant Mayhew.

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However, this fact does not render such documentation confidential in nature and, in any event,

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Plaintiff seeks only the statements made by himself and Defendant Mayhew. Accordingly, Plaintiff‟s

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motion to compel is GRANTED, and Defendant shall provide any and all statements made by himself

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and Defendant Mayhew during the July 31, 2014, interview by Lieutenant D. Robertson.

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3.

Request for Document Production, Set One, Number Three

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Request No. 3: “Any and all completed incident reports written about the June 25, 2014,

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incident by Valley State Prison “VSP” Correctional Officers/Staffs D. Mayhew, Burns, Jordan, S.

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Cotton, and VSP Psych-Tech M. Diaz.”

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Response: Defendant objects to this request on the ground that it is vague, ambiguous, and

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overly broad. Defendant further objects [on] the grounds that this request is compound. Defendant

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further objects to this request on the ground that it seeks information that is not relevant to the claims

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and defenses at issue in this action and not reasonably calculated to lead to th[e] discovery of

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admissible evidence. Defendant further objects to this request to the extent that it seeks information,

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the disclosure of which could endanger the safety of other inmates and staff of the CDCR or

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jeopardize the security of the institution, and is therefore deemed confidential under Cal. Code Regs.

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tit. 15, § 3321.”

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“Without waiving these objections, Defendant responds as follows: All responsive, non-

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confidential documents, are attached as Bates numbers 1-19.”

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(Sloan Decl. ¶ 2, Ex. A.)

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In his motion to compel, Plaintiff states that each correctional staff member named in this

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request either wrote a report as a witness who was present during the June 25, 2014, incident, or was a

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witness to whom Plaintiff reported the incident. Therefore, Plaintiff argues he is entitled to discovery

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of such evidence.
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Ruling: As phrased, Plaintiff requested any copies of incident reports relating to the June 25,

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2014, incident involving Plaintiff and Defendant Mayhew. Although Defendant submits the official

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information privilege, there is no privilege log and Defendant does not specifically address such

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privilege as it relates to the incident reports, and for the same reasons stated above, Defendant‟s

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objection on the basis of privilege is overruled. To the extent such incident reports exist, Plaintiff‟s

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motion to compel a further response to this request is GRANTED. Defendant shall be directed to

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produce all incident reports drafted by any of the above individuals relating to the June 25, 2014

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incident, at issue in this action.
C.

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Motion for Sanctions

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To the extent Plaintiff seeks the imposition of sanctions against Defendant under the Court‟s

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inherent authority and under Federal Rule of Civil Procedure 37(a)(5), Plaintiff‟s request must be

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denied.

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Federal courts have the inherent authority to sanction conduct abusive of the judicial process.

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Chambers v. NASCO, Inc., 501 U.S. 32, 43-45 (1991). However, because of their very potency,

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inherent powers must be exercised with restraint and discretion. Chambers, 501 U.S. at 44 (quotation

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marks omitted).

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constituted, or been tantamount to, bad faith. Roadway Express, Inc. v. Piper, 447 U.S. 752, 767

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(1980); Gomez v. Vernon, 255 F.3d 1118, 1134 (9th Cir. 2001); Fink v. Gomez, 239 F.3d 989, 993-94

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(9th Cir. 2001).

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harassment, or an improper purpose, may support sanctions, Vernon, 255 F.3d at 1134; Fink, 239 F.3d

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at 994, but mere negligence or recklessness will not suffice, In re Lehtinen, 564 F.3d 1052, 1058 (9th

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Cir. 2009).

To be sanctionable under the Court‟s inherent power, the conduct must have

Recklessness, when combined with an additional factor such as frivolousness,

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The record does not support a finding that Defendant acted in bad faith in responding to

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Plaintiff‟s discovery requests, and Plaintiff‟s motion for sanctions pursuant to the Court‟s inherent

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authority is denied.

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With respect to Rule 37, the Court may apportion reasonable expenses where a motion to

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compel is granted in part and denied in part. Fed. R. Civ. P. 37(a)(5)(C). In this instance, the Court

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does not find that an apportionment of expenses is just, as Plaintiff is the prevailing party on only 2 out
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of 3 discovery requests. Furthermore, Plaintiff has not incurred attorney‟s fees nor has he shown he in

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fact incurred photocopying and mailing costs.1 See Haney v. Saldana, No. 1:04-cv-05935-AWI-SMS-

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PC, 2010 WL 3341939, at *10 (E.D. Cal. Aug. 24, 2010) (lack of attorney‟s fees, entitlement to free

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copies as indigent prisoner, and court‟s need to issue a number of limiting instruction are

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circumstances under which an award of sanction to the plaintiff would be unjust).

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II.

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ORDER

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1.

Plaintiff‟s motion to compel is GRANTED in part and DENIED in part as follows:

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a.

Plaintiff‟s motion to compel a further response to Request for Document Production
Number 1 is DENIED;

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b.

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Plaintiff‟s motion to compel a further response to Request for Document Production

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Number 2 is GRANTED, and within thirty (30) days from the date of service of this

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order, Defendant shall provide any and all statements made by himself and Defendant

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Mayhew during the July 31, 2014, interview by Lieutenant D. Robertson; and
c.

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Plaintiff‟s motion to compel a further response to Request for Document Production

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Number 3 is GRANTED, and within thirty (30) days from the date of service of this

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order, Defendant shall produce all incident reports drafted by any of the identified

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individuals relating to the June 25, 2014 incident, at issue in this action.
2.

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Plaintiff‟s motion imposition of sanctions is DENIED.

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IT IS SO ORDERED.

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Dated:

January 29, 2016
UNITED STATES MAGISTRATE JUDGE

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Pro se litigants are not entitled to attorney‟s fees. Kay v. Ehrler, 499 U.S. 432, 435, 1423 S.Ct. 1435
(1991).
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