Dicey v. Harrison, W. R., et al.
Filing
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ORDER signed by Magistrate Judge John F. Moulds on 9/14/11 regarding 58 Motion to Compel and DENIES motion as to request numbers 1, 2, 4, 7, 8, 9, 10, 11 and 12; and 2. Within 10 days from the date of this order defendant shall submit to the chambers of the undersigned for in camera review any documents responsive to requests 3, 5 and 6 related to the March 29, 2007 incident that is the subject of this action. (Meuleman, A)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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BERLAN LYNELL DICEY,
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Plaintiff,
No. 2:08-cv-2608-JAM-JFM (PC)
vs.
W. R. HARRISON, et al.,
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Defendants.
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ORDER
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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to
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42 U.S.C. § 1983. In relevant part, plaintiff claims that defendant Harrison violated his rights
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under the Eighth Amendment by use of excessive force and deliberate indifference to plaintiff’s
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serious medical needs in an incident at High Desert State Prison on March 29, 2007. This action
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is before the court on plaintiff’s motion to compel further responses to a request for production of
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documents that he served on defendant Harrison.1 Defendants oppose the motion.
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By request number 1, plaintiff sought production of all 602 inmate grievance
appeals filed against defendant Harrison by inmates at High Desert State Prison (High Desert).
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Discovery closed in this action on December 17, 2010. See Revised Scheduling Order
filed September 14, 2010. By order filed January 4, 2011, plaintiff was granted a period of thirty
days in which to file a motion to compel further responses to his request for production of
documents.
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Defendant initially objected to the request as “overly broad and not reasonably calculated to lead
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to the discovery of admissible evidence” and on the ground that he had no documents responsive
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to the request. Ex. A to Declaration of Matthew Ross Wilson, attached to Defendant Harrison’s
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Opposition to the Plaintiff’s Motion to Compel, filed February 9, 2011 (hereafter Wilson
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Declaration), at 2. Subsequently, defendant supplemented the response by providing plaintiff a
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copy of the grievance he filed concerning the incident at bar. Ex. B to Wilson Declaration at 2.
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Plaintiff’s request number 4 is substantially similar, as is defendant’s initial and supplemental
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response thereto. Plaintiff has made no showing that the responses to requests 1 and 4, as
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supplemented, are inadequate. Accordingly, no further responses to these requests will be
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required.
By request number 2, plaintiff sought production of “any and all documents of
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complaints filed against you by fellow departmental (CDCR) employee’s and or free staff
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employees at high desert prison, if any.” Ex. A to Wilson Declaration at 2-3. Defendant
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Harrison objected to this request as “overly broad and not reasonably calculated to lead to the
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discovery of admissible evidence.” Id. at 3. Defendant Harrison also responded that he had no
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documents responsive to the request. Defendant Harrison’s objection is well-taken. No further
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response to this request will be required.
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By request number 3, plaintiff sought production of “any and all documents filed
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against you concerning an internal affairs investigations [sic] at high desert state prison and or at
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any other (CDCR) institution, if any.” Id. By request number 5, plaintiff sought “any and all
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written documents filed against [defendant Harrison] or correctional officials at high desert state
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prison that concern the march/ 29th/ 2007 incident on facility “bravo yard” circumstances
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surrounding your involvement of the use of force on the plaintiff “Berlan Lynell Dicey” and on
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inmate “John Holcome” (incident log number: HDSP-FBO-07-03-0172). Id. at 3-4. By request
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number 6, plaintiff sought production of all documents filed against defendant Harrison “that
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there after adverse, disciplinary action was recomended [sic] or taken against you, if any.
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Defendant Harrison objected to request numbers 3 and 6 as overly broad and to request numbers
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3, 5 and 6 as “not reasonably calculated to lead to the discovery of admissible evidence.” Id. at 3.
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Defendant Harrison also objected that disclosure of such documents is protected by the official
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information privilege, California Evidence Code §§ 1040, 1043 and 1045, and California Penal
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Code § 832.7. Id. Good cause appearing, defendant Harrison will be directed to submit for in
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camera review all documents responsive to these requests.
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By request number 7, plaintiff sought “ any and all documents writings, drawings,
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graphs, charts, photographs, phono-records, and other data compications [sic] from which
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information can be obtained, including electronic mail (“e-mail”) concerning the use of force
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policies of chemical agents (o.c.9. pepper spray tear gas) etc... that is considered non privileged
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information, if any.” Id. at 4. Defendant Harrison objected to this request as vague, ambiguous,
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overly broad, and overly burdensome, but produced to plaintiff relevant provisions of Title 15 of
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the California Code of Regulations. Id. Similarly, by request number 8, plaintiff sought “ any
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and all information and documents that contain, mention, construe, or refer to policies on
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correctional officials responses to inmate on inmate threats and violence at high desert state
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prison, if any. Id. at 5. Defendant interposed the same objections, as well as an objection that the
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request could encompass documents protected by the attorney client privilege and work product,
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and provided the same sections of Title 15 in response. Id. By request number 9, plaintiff sought
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“ any and all written information and documents, memos, memorandums, addressed to all
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correctional officials concerning policies and procedures of the use of force policy against
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inmates at high desert state prison, if any.” In response, defendant objected that the request was
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“[o]verly broad, burdensome and harassing” but also a response referring plaintiff to the same
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provisions of Title 15. Id. Defendant’s response to requests 7, 8, and 9 is sufficient. No further
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response will be required.
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By request number 10, plaintiff sought “any and all documents written
complaints, electronic mail (email) filed against this department, (high desert state prison) by
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inmates and or by the inmates family or family members, civilians and any other firms, agencies,
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including the office of the inspector general, the prison law office and the department of justice
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that surround circumstances concerning complaints of excessive use of force by high desert
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state prison correctional officials starting from the year 2005 entill [sic] the “year 2010”, if any.”
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Id. Defendant objected to that request on the grounds that it was “not reasonably calculated to
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lead to the discovery of admissible evidence” and that disclosure of such documents was
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protected by “the official information privilege and California Evidence Code §§1040, 1043 and
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1045 and Penal Code S832.7.” Id. Defendant’s objection that this request is not reasonably
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calculated to lead to the discovery of admissible evidence is well-taken. No further response will
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be required.
By request number 11, plaintiff sought “any and all documents. written
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memorandums, video recordings, tape recordings that was conducted with you concerning the
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march/29th/2007 incident of your role of the use of force of chemical agents against the plaintiff,
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if any.” Id. at 6. Defendant objected to this request, on the ground that “[a]s phrased, this
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request seeks documents protected by the attorney client privilege, work product doctrine and
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official privilege.” Defendant also stated that he had nothing responsive to the request. In
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opposition to the motion, defendants note that defendant did produce the incident report from this
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incident in a supplemental response to request number 12. Id. Production of the incident report is
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a sufficient response to this request. No further response will be required.
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By request number 12, plaintiff sought “any and all documents concerning the
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march/29th/2010 incident involveing [sic] the plaintiff and your role of the use of force incident
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package CDCR 3010, incident commander review critique use of force incidents, CDCR 301 1
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managers review first level use of force incidents, CDCR 3012 managers review second level use
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of force incidents CDCR 3013 inmate interview guidelines, CDCR 3014 report of findings
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inmate interview, CDCR 3034 institutional executive review committee allegation review,
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CDCR 3035 IERC use of force review and further action recommendation and any other CDCR
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incident reports including CDCR forms 3036, 3037 CDCR 1662 preliminary incident
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notification and CDCR 3010 form or forms and or any other documents that are discoverable if
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any.” Id. at 6. Defendant initially objected that he had no documents responsive to this request,
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id. at 7, but subsequently produced the rules violation report and the incident reports from the
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incident at bar. Ex. B to Wilson Declaration at 4. Defendant’s response to request number 12 is
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sufficient. No further response will be required.
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In accordance with the above, IT IS HEREBY ORDERED that:
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1. Plaintiff’s February 3, 2011 motion to compel further responses to his request
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for production of documents is denied as to request numbers 1, 2, 4, 7, 8, 9, 10, 11 and 12; and
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2. Within ten days from the date of this order defendant shall submit to the
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chambers of the undersigned for in camera review any documents responsive to requests 3, 5 and
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6 related to the March 29, 2007 incident that is the subject of this action.
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DATED: September 14, 2011.
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