Garrett v. Davey, et al.

Filing 28

ORDER Opening Limited Discovery 15 , 21 , 22 , & 27 , signed by Magistrate Judge Erica P. Grosjean on 6/13/17: 90-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARCUS LEWIS GARRETT,
Plaintiff,

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v.
D. DAVEY and GONZALEZ,

Case No. 1:16-cv-00636-EPG (PC)
ORDER OPENING LIMITED
DISCOVERY
(ECF NOS. 15, 21, 22, & 27)
NINETY DAY DEADLINE

Defendants.

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Marcus Lewis Garrett (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds on

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Plaintiff’s First Amended Complaint against defendants Davey and Gonzalez for failure to

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protect in violation of the Eighth Amendment. (ECF Nos. 10 & 11).

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After Plaintiff completed and returned the appropriate service documents (ECF No. 12),

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the Court ordered the United States Marshal Service (“the Marshal”) to serve Defendants (ECF

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No. 13). However, the summons for defendant Gonzalez was returned unexecuted. (ECF No.

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14). According to the Marshal, the “L/O at Corcoran State Prison” informed the Marshal that

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“no Lt. E. Gonzalez has ever worked at that facility.” (Id.). Accordingly, the Court issued an

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order to show cause, ordering Plaintiff to show cause why the Court should not dismiss

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defendant Gonzalez from this action, without prejudice, pursuant to Federal Rule of Civil

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Procedure 4(m). (ECF No. 15).

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On May 15, 2017, Plaintiff filed his response. (ECF No. 21). Plaintiff stated that he

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was informed that Lieutenant Gonzalez was a ranking official of administrative segregation on

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or about February of 2015, that Plaintiff was interviewed by someone who identified himself as

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Lieutenant Gonzalez on July 30, 2015, and that Lieutenant Gonzalez works at Corcoran.

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Plaintiff also stated that the litigation office at Corcoran should identify the lieutenant who had

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the position of correctional lieutenant during the period of February 19, 2015.

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Given Plaintiff’s response, the Court discharged the order to show cause, and requested

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that the Office of the Attorney General provide the name and an address for service for the

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defendant currently identified as Lieutenant Gonzalez. (ECF No. 22). On June 8, 2017, the

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Office of the Attorney General filed the declaration of M. Kimbrell, the litigation coordinator at

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Corcoran State Prison (“COR”). (ECF No. 27). According to M. Kimbrell, she “conducted a

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search for all COR employees with the name of E. Gonzalez and E. Gonzales with the rank of

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Correctional Lieutenant....” M. Kimbrell’s “search revealed that, while [California Department

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of Corrections and Rehabilitation] has employed individuals named E. Gonzalez and E.

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Gonzales at COR, none of them held the title of Correctional Lieutenant.” (Id. at p. 2).

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In light of this, the Court will open limited discovery, for the purpose of identifying and

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getting a service address for the defendant currently identified as Lieutenant Gonzalez (the

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Court recognizes that such discovery may pose privacy issues, which may necessitate in

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camera review or sealing of documents).

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Accordingly, based on the foregoing, IT IS HEREBY ORDERED that:
1. Discovery is open for the limited purpose of identifying and getting a service
address for the defendant currently identified as Lieutenant Gonzalez;

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2. If Plaintiff does not identify and provide an address for defendant Gonzalez

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within 90 days from the date of service of this order, the Court will issue

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findings and recommendations, recommending that defendant Gonzalez be

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dismissed from this case, without prejudice, for failure to serve;1 and

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3. Discovery shall proceed as follows:

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a. Discovery requests shall be served by Plaintiff pursuant to Federal Rule

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of Civil Procedure 5 and Local Rule 135.

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responses shall not be filed with the Court unless required by Local

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Rules 250.2, 250.3, or 250.4 (providing that discovery requests shall not

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be filed unless or until there is a proceeding in which the document or

Discovery requests and

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The Court notes that, upon motion by Plaintiff, this deadline can be extended for cause,
including the need to file motions to compel further discovery responses.
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proof of service is at issue). Plaintiff may serve on any other party no

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more than 3 interrogatories, 3 requests for production of documents, and

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3 requests for admission. On motion, these limits may be increased for

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good cause;

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b. Responses to written discovery requests shall be due thirty (30) days

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after the request is first served. Boilerplate objections are disfavored and

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may be summarily overruled by the Court. Responses to document

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requests shall include all documents within a party’s possession, custody

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or control. Fed. R. Civ. P. 34(a)(1). Documents are deemed within a

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party’s possession, custody, or control if the party has actual possession,

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custody, or control thereof, or the legal right to obtain the property on

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demand.2

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c. If any party or third party withholds a document on the basis of privilege,

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that party or third party shall provide a privilege log to the requesting

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party identifying the date, author, recipients, general subject matter, and

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basis of the privilege within fourteen (14) days after the date that

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responses are due. Failure to provide a privilege log within this time

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shall result in a waiver of the privilege. To the extent the requesting

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party disputes whether a document is privileged, it can raise that issue in

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a motion to compel further discovery responses. If a party or third party

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withholds a document on the basis of the official information privilege,

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the requesting party may request that the Court conduct an in camera

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review of such document so that the Court can balance the moving

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party's need for the documents in the litigation against the reasons that

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are asserted in defending their confidentiality. In any such request for in

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Defendant(s)’ responses should be consistent with their right to request documents pursuant to
California Government Code § 3306.5 (“Each employer shall keep each public safety officers’ personnel file or a
true and correct copy thereof, and shall make the file or copy thereof available within a reasonable period of time
after a request thereof by the officer.”).
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camera review, the party requesting review shall identify, with

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specificity, the document(s) for which review is sought;
d. With the Court’s permission, Plaintiff may serve third party subpoenas,

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including

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Rehabilitation, if Plaintiff seeks documents from entities that are not

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presently defendants in this case. To issue a subpoena on these entities,

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or any other third parties, Plaintiff must file a request for the issuance of

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a subpoena duces tecum with the Court.

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request, it may issue Plaintiff a subpoena duces tecum, commanding the

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production of documents from a non-party, and may command service of

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the subpoena by the United States Marshal Service. Fed. R. Civ. P. 45;

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28 U.S.C. 1915(d). However, the Court will consider granting such a

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request only if the documents sought from the non-party are not equally

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available to Plaintiff and are not obtainable from Defendant(s) through a

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request for production of documents. Fed. R. Civ. P. 34. In any request

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for a subpoena, Plaintiff must: (1) identify with specificity the

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documents sought and from whom; and (2) make a showing in the

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request that the records are only obtainable through that third party; and

on

the

California

Department

of

Corrections

and

If the Court approves the

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e. The parties are required to act in good faith during the course of

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discovery and the failure to do so may result in the payment of expenses

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pursuant to Federal Rule of Civil Procedure 37(a)(5) or other appropriate

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sanctions authorized by the Federal Rules of Civil Procedure or the

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Local Rules.

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IT IS SO ORDERED.
Dated:

June 13, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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