Mitchell v. Schwartzenegger et al

Filing 199

ORDER signed by Magistrate Judge Kendall J. Newman on 8/19/2015 ORDERING that plaintiff's 187 motion to reopen discovery and modify the scheduling order is DENIED; plaintiff's 196 request to issue a subpoena duces tecum is DENIED; plaintiff's 186 motion for an examination or expert witness is DENIED; plaintiff's 185 request for judicial notice is DENIED; and within 14 days, defendants shall file their pretrial statement. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN EDWARD MITCHELL,

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Plaintiff,

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No. 2:09-cv-3012 JAM KJN P

v.

ORDER

J. HAVILAND, et al.,

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Defendants.

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I. Introduction

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Plaintiff is a state prisoner, proceeding without counsel. This action is proceeding on

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plaintiff’s excessive force claims against defendant Rosario, and plaintiff’s retaliation claims

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against defendants Rosario and McGuire. Several motions are pending, which the court addresses

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below.

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II. Background

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This action was filed on October 28, 2009. Plaintiff filed a second amended complaint on

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February 23, 2012. (ECF No. 51.) Defendants filed an answer on April 25, 2013. On May 6,

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2013, the court issued a discovery and scheduling order; the discovery deadline was set for

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August 16, 2013, and pretrial motions deadline was set for November 8, 2013. (ECF No. 73.)

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On August 7, 2013, the discovery deadline was extended to October 16, 2013, for the limited

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purpose of allowing plaintiff to propound interrogatories to defendants, and conducting follow-up

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discovery as to potential witnesses Valdez and Neason, and the pretrial motions deadline

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extended to January 8, 2014. (ECF No. 89.) Plaintiff was cautioned that the court was not

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inclined to further extend the discovery deadline. (Id.) On November 14, 2013, defendants’

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motion to modify the scheduling order was granted, and the matter was referred for a settlement

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conference, and the pretrial motions deadline was vacated. (ECF No. 111.) On April 8, 2014,

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following unsuccessful settlement negotiations, the court issued a revised scheduling order setting

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the pretrial motions deadline for June 13, 2014, and noted that discovery was closed. (ECF No.

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141.) Following resolution of summary judgment motions, a further scheduling order issued,

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setting the jury trial for November 9, 2015, following a pretrial conference on the papers. (ECF

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No. 172.)

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III. Request to Reopen Discovery and Modify Scheduling Order

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On July 7, 2015, plaintiff filed a request to reopen discovery and modify the pretrial

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scheduling order. Defendants oppose the request. For the reasons set forth below, the court

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denies plaintiff’s request.

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Plaintiff seeks to obtain discovery concerning three separate matters. First, plaintiff seeks

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to obtain documents from defendant Rosario’s personnel file, stating that although he sought this

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information through discovery, defendants “may have claimed ‘privilege, privacy and/or

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relevancy.’” (ECF No. 187 at 1.) Plaintiff claims he cannot be sure what their response was

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because numerous documents were not returned to him after he returned from testifying in Draper

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v. Rosario, Case No. 2:10-cv-0032 KJM EFB (E.D. Cal.).1 Second, plaintiff seeks documents

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demonstrating who, where and when the August 16, 2008 videotape was removed and viewed.

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(ECF No. 187 at 3.) Plaintiff complains that defendants failed to turn such documents over in

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response to his discovery requests. Finally, plaintiff states that discovery should be reopened as

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to statements by Kevin Fisher. Plaintiff claims that he should receive all 602 or staff complaints

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that Fisher filed concerning defendant Rosario. (ECF No. 187 at 6.)

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Court records reflect that plaintiff testified in the Draper trial on June 17, 2014. (Id., ECF No.
226).
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Defendants contend that plaintiff fails to show he diligently pursued such discovery

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despite the fact that plaintiff concedes that defendant Rosario’s personnel file and the videotape

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“evidence log” were the subject of discovery or discovery-related motions. (ECF No. 192 at 2,

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citing ECF No. 187 at 4-5.) Defendants note that plaintiff offered no explanation for his delay in

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raising these issues. As to Mr. Fisher, defendants argue that plaintiff failed to explain the

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relevance of such documents or why plaintiff failed to seek them during discovery. In addition,

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defendants point out that plaintiff provided a recent declaration by Mr. Fisher, yet plaintiff failed

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to explain why plaintiff could not obtain the documents directly from Mr. Fisher.
“The district court is given broad discretion in supervising the pretrial phase of litigation.”

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Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) (citation and internal

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quotation marks omitted). Rule 16(b) provides that “[a] schedule may be modified only for good

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cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). “The schedule may be modified

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‘if it cannot reasonably be met despite the diligence of the party seeking the extension.’”

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Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (quoting

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Johnson, 975 F.2d at 607).

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Here, plaintiff was previously granted an extension of the discovery period and warned

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that the court is not inclined to extend such deadline further. The record reflects that plaintiff

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sought discovery from defendant Rosario’s personnel file as well as discovery concerning the

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missing August 16, 2008 videotape, yet failed to seek further orders, such as a motion to compel

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production of documents, during the discovery period, or seek reconsideration of rulings on

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discovery disputes shortly after the orders issued. It does not appear that plaintiff sought

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discovery as to Kevin Fisher, and plaintiff failed to demonstrate how such discovery is relevant.2

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Kevin Fisher filed one civil rights complaint in this district against Rosario. Fisher v. Cappel,
Case No. 2:13-cv-0642 AC (E.D. Cal.). Plaintiff alleged that he was placed on a yard where he
was unsafe and suffered significant injuries at the hands of other inmates as a result. (Id., ECF
No. 9 at 3.) However, because plaintiff made no allegation that Rosario was involved in placing
Fisher on the yard, Fisher’s claim against Rosario was dismissed for failure to link any action by
Rosario to the alleged constitutional deprivation. (Id., ECF No. 9 at 5.) The action was dismissed
on July 2, 2015. (Id., ECF No. 30) Because such allegations differ from plaintiff’s claim
concerning the use of force, Fisher’s allegations in Case No. 2:13-cv-0642 AC are not relevant.
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Plaintiff also failed to explain why he did not seek discovery concerning Mr. Fisher during the

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discovery period. Moreover, plaintiff failed to explain why he did not seek further court

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assistance concerning the discovery he now seeks before the discovery deadline expired on

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October 16, 2013, or before either pretrial motions deadline expired on January 8, 2014, or June

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13, 2014. Such delay demonstrates that plaintiff was not diligent in seeking the discovery he now

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requests.

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Plaintiff argues that in the alternative, the court could issue for production at trial a

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subpoena duces tecum for defendant Rosario’s personnel file or the documents demonstrating the

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existence of the August 16, 2008 videotape. Plaintiff seeks documents from defendant Rosario’s

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personnel file concerning prior incidents where the use of excessive force was alleged. In support

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of his request, plaintiff contends that the court could simply order the clerk of court to send

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plaintiff the personnel records disclosed in Draper v. Rosario, 2013 WL 6198945 (E.D. Cal. Nov.

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27, 2013) (District Court 2:10-cv-0032 KJM EFB). However, the November 27, 2013 order did

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not order disclosure of such records; rather, the order simply directed that Rosario’s personnel file

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be submitted to the court for an in camera review. Id. Following such in camera review, the

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district court declined to order production of any of the materials produced in camera. Draper v.

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Rosario, 2:10-cv-0032 KJM EFB (E.D. Cal. Jan. 10, 2014) (ECF No. 116). The district court

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explained that defendant Rosario’s file contained grievances based on Rosario’s use of force filed

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by inmates Ronald Walton,3 Mario Thompson,4 and plaintiff, but the district court noted that none

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of the complaints were upheld, and found that the three documents worth noting were not

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relevant. (Id., ECF No. 116 at 1-2.) The district court also compared the grievances against the

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civil rights complaints filed in the Eastern District by inmates Michael Haynes and Sean

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In Walton v. Frey, Case No. 2:10-cv-2608 JAM EFB (E.D. Cal.), defendant Rosario was
granted summary judgment on Walton’s claim that Rosario used excessive force on February 28,
2010, finding that Walton failed to adduce evidence that a reasonable jury could conclude that
Rosario’s conduct violated plaintiff’s Eighth Amendment rights. (Id., ECF Nos. 31 at 7-9; 33.)
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Defendants provided copies of the April 10, 2014 findings and recommendations and the June
25, 2014 order issued in Thompson v. Rosario, Case No. 2:12-cv-0776 KJM DAD, in which the
district court adopted the recommendations and granted Rosario summary judgment on
Thompson’s claim that Rosario used excessive force on November 29, 2009. (ECF No. 191-2.)
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Williams,5 and found “nothing in the files that illuminates the incidents described in those

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complaints.” (Id., ECF No. 116 at 2.) Moreover, following a jury trial, the jury found that

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defendant Rosario did not violate Draper’s Eighth Amendment rights by using excessive force on

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September 9, 2009. (Id. at ECF No. 235.) For all of these reasons, the undersigned cannot find

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good cause to reopen discovery to revisit defendant Rosario’s personnel file at this late stage of

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the proceeding and in light of plaintiff’s failure to diligently seek the discovery.

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Regarding the missing videotape, plaintiff claims there are records as to its existence,

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which he argues he has a right to in their physical form. (ECF No. 187 at 4.) However, the

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declaration by litigation coordinator Cervantes confirmed that Sgt. Burris videotaped plaintiff

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while Sgt. Henry asked plaintiff interview questions during an inmate use of force interview on

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August 16, 2008. (ECF No. 113 at 8.) This court also confirmed that the August 16, 2008

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videotape, although now missing, did exist. (ECF Nos. 127 at 7; 141 at 7.) Thus, it is no longer

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disputed that the August 16, 2008 videotape did exist; it merely cannot be located. Accordingly,

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no further discovery is required to document the existence of the August 16, 2008 videotape

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because such evidence would be redundant. Moreover, plaintiff is cautioned that the point at trial

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will not be whether or not the videotape existed or someone lost it – although the court may give

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plaintiff some latitude to seek to impeach witnesses as to why the videotape was not preserved.

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At trial, plaintiff must adduce evidence as to what happened during the use of force as well as

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what injuries he sustained. As the court previously informed him,

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plaintiff may introduce the testimony of Sergeants Henry and
Burris, who observed plaintiff during the August 16, 2008
interview (ECF No. 113 at 2); the written report of the sergeants’
observations during the August 16, 2008 interview; the medical
records documenting plaintiff’s injuries; and the testimony of
witnesses or those involved in the August 5, 2008 use of force
incident. Also, through discovery responses, defendants provided
plaintiff with evidentiary support of his injuries. (ECF No. 119 at
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(ECF No. 141 at 8.) Accordingly, plaintiff’s motion to reopen discovery to obtain further

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Sean Williams’ case, Williams v. Haviland, 2:10-cv-0377 WBS CMK (E.D. Cal.), was
dismissed for failure to exhaust administrative remedies on January 31, 2011. Michael Haynes’
case, Haynes v. Rosario, 2:12-cv-3018 KJN (E.D. Cal.), is presently pending.
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evidence concerning the existence of the August 16, 2008 videotape is denied.
For all of the above reasons, the undersigned does not find good cause to reopen discovery

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or modify the current scheduling order. Plaintiff’s motion is denied.

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IV. Subpoena Duces Tecum

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On August 10, 2015, plaintiff submitted a subpoena duces tecum directed to litigation

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coordinator S. Cervantes, directing Cervantes to appear at jury trial on November 9, 2015, and

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produce the following materials:

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CSP-Solano ISU Archives for the year 2008, specifically evidence
locker log book records for incident report SOL-SF-08-08-0241
(Aug 16 Videotape interview). All documents referred to on
11/07/13 in the declaration, archives, Logbook of Evidence, only
entries that pertain to this case and or SOL-SF-08-08-241.
(ECF No. 196.)
The court will authorize service of the subpoenas by the United States Marshal only upon
a showing of good cause, as discussed below.
Pursuant to Federal Rule of Civil Procedure 45(a)(2), a subpoena duces tecum may direct

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a non-party to an action to produce documents or other tangible objects for inspection. A

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subpoena must be personally served or it is null and void. Fed. R. Civ. P. 45(c); Gillam v. A.

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Shyman, Inc., 22 F.R.D. 475 (D. Alaska 1958). Because plaintiff is proceeding in forma

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pauperis, he is entitled to obtain personal service of an authorized subpoena duces tecum by the

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United States Marshal. 28 U.S.C. § 1915(d). However, this court must consider the following

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limitations before directing the United States Marshal to personally serve a prisoner’s proposed

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subpoena duces tecum.

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A subpoena duces tecum is subject to the relevance standards set forth in Federal Rule of

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Civil Procedure 26(b)(1) (“[p]arties may obtain discovery regarding any nonprivileged matter that

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is relevant to any party’s claim or defense”), and the considerations of burden and expense set

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forth in Federal Rules of Civil Procedure 26(b)(2) and 45(c)(1). The “Federal Rules of Civil

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Procedure were not intended to burden a non-party with a duty to suffer excessive or unusual

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expenses in order to comply with a subpoena duces tecum.” Badman v. Stark, 139 F.R.D. 601,

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605 (M.D. Pa. 1991) (requiring indigent plaintiff to demonstrate that he had “made provision for
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the costs of such discovery”) (citing Cantaline v. Raymark Industries, Inc., 103 F.R.D. 447, 450

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(S.D. Fla. 1984)); see also United States v. Columbia Broadcasting System, Inc., 666 F.2d 364

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(9th Cir. 1982) (court may award costs of compliance with subpoena to non-party). Non-parties

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are “entitled to have the benefit of this Court’s vigilance” in considering these factors. Badman,

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139 F.R.D. at 605. In addition, a motion authorizing service of a subpoena duces tecum must be

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supported by: (1) clear identification of the documents sought and from whom, and (2) a showing

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that the records are obtainable only through the identified third party. See, e.g., Davis v. Ramen,

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2010 WL 1948560, *1 (E.D. Cal. 2010); Williams v. Adams, 2010 WL 148703, *1 (E.D. Cal.

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2010).

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Plaintiff seeks all documents referred to in Cervantes’ 2013 declaration. The sole focus of

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Cervantes’ declaration is the August 16, 2008 videotape. Cervantes explains that the use of force

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interview was videotaped on August 16, 2008, and then recounts the myriad efforts undertaken in

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an unsuccessful effort to locate the videotape. While the documents plaintiff seeks may be

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tangentially relevant in that the documents might provide evidence of who reviewed the August

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16, 2008 videotape, or provide additional evidence to demonstrate that the tape existed, it is not

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disputed that the videotape once existed but cannot now be located. Also, there are already-

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identified witnesses who can be called to testify as to the contents of the videotape, such as

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plaintiff and Sergeants Henry and Burris. The documents plaintiff seeks will not identify the

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contents of the videotape. Moreover, the August 5, 2008 incident report, as supplemented by the

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August 16, 2008 pages, is in the parties’ possession and will likely be admitted at trial. S.

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Cervantes, a nonparty, should not be burdened with producing documents that are redundant or

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cumulative of evidence already in the possession of the parties. Thus, plaintiff’s request to issue

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a subpoena duces tecum for S. Cervantes, litigation coordinator, is denied without prejudice,

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should plaintiff be able to demonstrate the relevance of the documents sought.

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Plaintiff may choose to subpoena Cervantes as a witness at trial. However, in addition to

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providing a completed subpoena for service by the Marshal upon Cervantes, plaintiff must tender

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an appropriate sum of money to the witness through the United States Marshal. Because

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Cervantes is not incarcerated, the appropriate sum of money is the daily witness fee of $40.00
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plus the witness’ travel expenses. 28 U.S.C. § 1821 (emphasis added). As plaintiff was informed

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in the court’s scheduling order, because no statute authorizes the use of public funds for these

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expenses in civil cases, the tendering of witness fees and travel expenses is required even if

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plaintiff is proceeding in forma pauperis. Thus, a subpoena will not be served by the United

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States Marshal upon an unincarcerated witness unless the subpoena is accompanied by a money

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order made payable to the witness for the full amount of the witness’ travel expenses plus the

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daily witness fee of $40.00.

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V. Motion for Examination or Expert Witness

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On July 7, 2015, plaintiff filed a motion for physical and mental examination or the

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appointment of an impartial expert witness, citing Rule 35 of the Federal Rules of Civil

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Procedure. (ECF No. 186.) Plaintiff lists the injuries that he alleges were caused by the actions

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of defendants, and argues that because such injuries are “in controversy,” the court may order an

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impartial examination of plaintiff. (ECF No. 186 at 2.)

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Defendants counter that plaintiff’s motion is improper because he seeks his own

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examination, presumably to avoid having to pay for the exam himself. Defendants note that

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although plaintiff requests the appointment of an impartial expert witness, he failed to identify

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what type of expert he seeks, but argue that plaintiff is not entitled to the appointment of an expert

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witness in any event.

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Rule 35(a)(1) provides that the court

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may order a party whose mental or physical condition -- including
blood group -- is in controversy to submit to a physical or mental
examination by a suitably licensed or certified examiner. The court
has the same authority to order a party to produce for examination a
person who is in its custody or under its legal control.

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Fed. R. Civ. P. 35(a)(1). An order for the physical examination “may be made only on motion for

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good cause and on notice to all parties and the person to be examined; and must specify the time,

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place, manner, conditions, and scope of the examination, as well as the person or persons who

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will perform it.” Fed. R. Civ. P. 35(1)(2)(A) and (B). The rule allows an opposing party who

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complies with the rule to obtain an order requiring a plaintiff to submit to a medical examination.

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It does not allow a party who has placed his or her mental or physical condition at issue to obtain

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an expert examination or report.

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Rule 35 does not authorize plaintiff to seek his own free examination to obtain evidence to

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prosecute his case. Smith v. Carroll, 602 F.Supp.2d 521, 526 (D. Del. 2009). Instead, in limited

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circumstances, Rule 35 “allows the court to order a party to submit to a physical examination at

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the request of an opposing party.” Smith, 602 F.Supp.2d at 526 (emphasis added); see also

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Brown v. United States, 74 F. App’x 611, 614 (7th Cir. 2003) (holding that Rule 35 does not

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permit the court to appoint an expert to examine an indigent party who seeks an examination of

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himself). Therefore, plaintiff’s request for an examination under Rule 35 is denied.
With regard to the request for an impartial expert witness, plaintiff’s request is wholly

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unsupported by facts or legal authority. It appears, however, that plaintiff seeks an expert in

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connection with his claim under the Eighth Amendment.
“The district court has the discretion to appoint an expert pursuant to Rule 706(a) of the

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Federal Rules of Evidence. “The court may on its own motion or on the motion of any party

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enter an order to show cause why expert witnesses should not be appointed. . . .” Lopez v.

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Scribner, 2007 WL 1215420 (E.D. Cal. Apr. 24, 2007) (citing Fed. R. Evid. 706(a); Walker v.

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American Home Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999)). “The

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plain language of section 1915 does not provide for the appointment of expert witnesses to aid an

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indigent litigant.” Hannah v. United States, 523 F.3d 597, 601 (5th Cir. 2008) (quoting Pedraza

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v. Jones, 71 F.3d 194, 196 (5th Cir.1995)). Pursuant to Rule 706, however, the court has

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discretion to apportion costs in the manner directed by the court, including the apportionment of

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costs to one side. Fed. R. Evid. 706(b). In situations such as this, where a plaintiff proceeds in

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forma pauperis and is presumably unable to pay for an expert, and the government would bear the

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cost of appointing the expert, the court should exercise caution.6

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“The expenditure of public funds on behalf of an indigent litigant is proper only when
authorized by Congress.” Tedder v. Odel, 890 F .2d 210 (9th Cir. 1989). Numerous court have
recognized that the in forma pauperis statute, 28 U.S.C. § 1915, does not authorize the
expenditure of public funds for witnesses. See, e.g., Gorton v. Todd, 793 F.Supp.2d 1171, 1181
n.11 (E.D. Cal. 2011) (discussing multiple cases). As the Seventh Circuit pointed out in Brown,
“no civil litigant, even an indigent one, has a legal right” to “compel the government to bear the
cost and responsibility for hiring an expert witness to testify on his behalf in order to establish a
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“If scientific, technical, or other specialized knowledge will assist the trier of fact to

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understand the evidence or to determine a fact in issue, a witness qualified as an expert by

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knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion

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or otherwise.” Fed. R. Evid. 702. The decision whether or not to admit expert testimony does not

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rest upon the existence or strength of the expert’s opinion but rather whether the expert testimony

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will assist the trier of fact in drawing its own conclusion as to a fact in issue. Lopez, 2007 WL

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1215420 *1 (citing United States v. Rahm, 993 F.2d 1405, 1412 (9th Cir. 1993).).

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Here, plaintiff asserts a claim for excessive force in violation of the Eighth Amendment.
To prevail on a claim for excessive force, the plaintiff must establish that force was used

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“maliciously and sadistically for the purpose of causing harm,” rather than “in a good-faith effort

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to maintain or restore discipline.” Hudson v. McMillian, 503 U.S. 1, 7 (1992). Plaintiff does not

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need to establish that his injury was “significant, serious, or more than minor.” Gomez v.

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Chandler, 163 F.3d 921, 924 (5th Cir. 1999).

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An expert will not assist the trier of fact in understanding if the alleged use of force was

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malicious and sadistic for the purpose of causing harm. This element “does not depend on

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technical determinations, but instead hinges on the intent of the prison administrators,” and no

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“scientific, technical, or other special knowledge” is required to help the trier of fact; thus, an

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expert is not necessary for plaintiff to present his case to a jury. See Salcido v. Zarek, 237 F.

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App’x 151, 152 (9th Cir. 2007) (district court did not err in denying plaintiff’s request for an

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expert where the case depended on the defendants’ intent in providing medical care to plaintiff).

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An expert is also not necessary to establish that plaintiff was injured. As plaintiff sought

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medical care after the incident, plaintiff’s medical records will demonstrate any injuries suffered.

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Appointing an expert to conduct a physical examination to determine the severity or extent of his

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injuries is unnecessary. Gomez, 163 F.3d at 924 (prisoner not required to demonstrate the

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severity of injury).

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fundamental element of his case.” 74 F. App’x at 614-15.
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Accordingly, to the extent plaintiff’s motion seeks the appointment of an expert to testify

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on his behalf regarding his Eighth Amendment claim, the request is denied.

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VI. Request for Judicial Notice
On July 7, 2015, plaintiff filed a document styled, “Request for Judicial Notice of Fact,

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Rule 201(b)(2).” (ECF No. 185.) Plaintiff provides his own declaration and asks the court to

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take judicial notice of facts concerning, inter alia, the injuries he allegedly sustained during the

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use of force on August 5, 2008, facts concerning the videotaping of such injuries, and facts

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surrounding the search for the August 16, 2008 videotape. Rule 201(b) states: “The court may

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judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known

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within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined

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from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). The facts

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proposed by plaintiff are not facts that are subject to judicial notice under Rule 201(b). Thus,

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plaintiff’s request for judicial notice is denied.

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VII. Defendants’ Pretrial Statement

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Defendants shall file their pretrial statement within fourteen days from the date of this

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order.

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IX. Conclusion

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to reopen discovery and modify the scheduling order (ECF No. 187)

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is denied;

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2. Plaintiff’s request to issue a subpoena duces tecum (ECF No. 196) is denied;

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3. Plaintiff’s motion for an examination or expert witness (ECF No. 186) is denied;

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4. Plaintiff’s request for judicial notice (ECF No. 185) is denied; and

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5. Within fourteen days from the date of this order, defendants shall file their pretrial

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statement.

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Dated: August 19, 2015

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