Becker v. Sherman, et al.

Filing 112

ORDER on Joint Stipulation Concerning Production of Materials Sought by Plaintiff's Third-Party Subpoena, signed by Magistrate Judge Jeremy D. Peterson on 2/12/2019. (Hellings, J)

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XAVIER BECERRA, State Bar No. 118517
Attorney General of California
MICHELLE ANGUS, State Bar No. 210031
Supervising Deputy Attorney General
ROBERT M. PERKINS, III, State Bar No. 309192
Deputy Attorney General
1300 I Street, Suite 125
P.O. Box 944255
Sacramento, CA 94244-2550
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Non-Party California
Department of Corrections and Rehabilitation –

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Additional Counsel Listed on Signature Page
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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FRESNO DIVISION
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JOSEPH BECKER,

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v.

1:16-cv-0828-AWI-JDP (PC)
Plaintiff, JOINT STIPULATION CONCERNING
PRODUCTION OF MATERIALS
SOUGHT BY PLAINTIFF’S THIRDPARTY SUBPOENA

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WARDEN SHERMAN, et al.,
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Judge:
The Hon. Jeremy D. Peterson
Trial Date:
Not Yet Set
Defendants. Action Filed: June 15, 2016

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On November 16, 2018, Plaintiff Joseph “Cinnamon” Becker (hereafter, “Plaintiff”) and

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counsel for non-party California Department of Corrections and Rehabilitation (“CDCR”)

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(hereafter, “Counsel for CDCR”) (together, “the parties”) attended a telephonic meet and confer

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concerning Plaintiff’s third-party subpoena served on CDCR (hereafter, the “Subpoena”).

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Requests 17 through 19 of the Subpoena sought production of “Policies, Procedures, and Training

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Materials” related to the Prison Rape Elimination Act (hereafter, “PREA”). In response to these

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Requests, Counsel for CDCR directed Plaintiff’s counsel to CDCR’s publicly-available

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information concerning CDCR’s PREA audits, and Plaintiff’s counsel agreed to narrow Requests
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JOINT STIPULATION (1:16-cv-0828-AWI-JDP (PC))

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17 through 19 to documents that CDCR provided to the PREA auditors.1

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At this time, Counsel for CDCR represent that they have diligently and thoroughly

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reviewed the audit materials that were generated as a result of the audit conducted at Deuel

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Vocational Institute (hereafter, “Deuel”). Counsel for CDCR has identified the following

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materials as being irrelevant to any claim or defense in this matter:

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1. First, the PREA audit packets include information about the institutions with which

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Deuel contracts for the confinement of inmates. Under 28 C.F.R. § 115.12, it is mandatory that a

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public correctional facility contain terms in its contract that require the contracting entities to

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comply with PREA national standards.
2. Second, Deuel’s audit packet also includes information about Deuel’s compliance with

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28 C.F.R. § 115.16, which requires PREA-compliant institutions to ensure that inmates with

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disability-related needs have an equal opportunity to participate in, or benefit from, all aspects of

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the agency’s efforts to prevent, detect, and respond to sexual abuse. Counsel for CDCR has

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reviewed over 100 pages of documents detailing budgetary analysis and contracts for services

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provided to inmates with disability related needs.

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3. Third, the PREA national standards require all staff members at PREA-compliant

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institutions be subjected to a background check to ensure that the staff members have: (1) never

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engaged in sexual abuse in a prison; or (2) been convicted of that behavior. Deuel’s PREA audit

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packet contains over 150 pages of employment applications that contain employee information,

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Request No. 17: All Documents and Communications from the Relevant Time Period Relating to
Policies Procedures, and Training Materials at the CDCR facilities where Ms. Becker was
incarcerated during the period of her incarceration at that facility Relating to assault, PREA
violations, sexual harassment, and threats among prisoners.

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Requests 17 through 19 sought the following materials:

Request No. 18: All Documents and Communications from the Relevant Time Period Relating to
Policies Procedures and Training Materials at the CDCR facilities where Ms. Becker was
incarcerated during the period of her incarceration at that facility Relating to the investigation of
assault, PREA violations, sexual harassment, and threats among prisoners.
Request No. 19: All Documents and Communications from the Relevant Time Period Relating to
Policies, Procedures, and Training Materials at the CDCR facilities where Ms. Becker was
incarcerated during the period of her incarceration at that facility Relating to services provided
and measures taken to protect victims of assault, PREA violations, sexual harassment, and threats
among prisoners.
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JOINT STIPULATION (1:16-cv-0828-AWI-JDP (PC))

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such as full names and home addresses. Moreover, no employee who completed the updated

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PREA-compliant employment application affirmatively represented that he or she engaged in

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sexual abuse or had been convicted of that behavior. Counsel for CDCR, however, will produce a

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blank copy of the updated employment application to Plaintiff’s counsel.
4. Fourth, Deuel’s PREA audit packet contains several forms, such as a CDCR Form 128

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Mental Health Chrono, a PREA screening tool, an inmate/parolee 602 grievance form, sexual

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assault forensic examination reports, and PREA report forms. Deuel staff members provided

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these forms to the PREA auditors who conducted the audit of Deuel. These forms contain

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personal third-party inmate information, which Counsel for CDCR represents is relevant to any

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claim or defense in this matter. Counsel for CDCR, however, has agreed to provide blank copies

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of these forms to Plaintiff’s counsel.

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5. And fifth, the PREA national standards require compliant institutions to develop

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policies and procedures that limit cross-gender viewing and searches. Deuel included CDCR

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training materials on searches of transgender inmates. These materials have already been

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provided to Plaintiff’s counsel as part of Defendants’ Responses to Plaintiff’s First Set of

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Requests for Production of Documents.

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JOINT STIPULATION (1:16-cv-0828-AWI-JDP (PC))

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As a result of Counsel for CDCR’s review of these materials and representation that the

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information contained in the above-mentioned documents is not relevant to any claim or defense

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in this matter, the parties stipulate that CDCR will not be required to produce these items as part

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of CDCR’s response to Requests 17 through 19 of the Subpoena, as modified by the parties’ meet

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and confer letters.

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Dated: February 6, 2019

LATHAM & WATKINS, LLP
Elizabeth L. Deeley
Katherine M. Larkin-Wong
Christopher J. Bower
Cameron J. Clark
David R. Derrick
Catherine A. Rizzoni

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By:

/s/ Katherine M. Larkin-Wong
Katherine M. Larkin-Wong
Pro Bono Attorneys for Plaintiff Joseph
“Cinnamon” Becker

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Dated: February 6, 2019

XAVIER BECERRA
Attorney General of California
MICHELLE L. ANGUS
Supervising Deputy Attorney General

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By: /s/ Robert M. Perkins, III
ROBERT M. PERKINS, III
Deputy Attorney General
Attorneys for Non-Party California
Department of Corrections and
Rehabilitation

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IT IS SO ORDERED.

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Dated:

February 12, 2019
UNITED STATES MAGISTRATE JUDGE

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JOINT STIPULATION (1:16-cv-0828-AWI-JDP (PC))