Milliken v. Lightfield et al

Filing 52

ORDER signed by Magistrate Judge John F. Moulds on 03/30/12 granting in part and denying in part 42 Motion to Compel. (See order for further details) (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES M. MILLIKEN,

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Plaintiff,

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No. 2:10-cv-1412-FCD-JFM (PC)

vs.

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MR. LIGHTFIELD, 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. This action is proceeding on plaintiff’s first amended complaint, filed October

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8, 2010. Plaintiff claims that his rights under the Eighth Amendment were violated by deliberate

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indifference to his health and safety. This matter is before the court on plaintiff’s motion to

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compel further responses to requests for admissions and requests for production of documents

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served on defendants in August 2011. Defendants oppose the motion.

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Plaintiff seeks further responses to request numbers 6, 7, 9, 15 and 16 of his first

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request for production of documents, and to request number 10 of his second request for

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production of documents.

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By request number 6, plaintiff seeks “All documents generated by CSPSacramento from 6/1/09 to 11/1/09 that correlate with” documents requested in request numbers
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1-5, “(i.e. Memorandums, Briefs, Reports ect [sic]. . .).” Ex. 5 to Motion to Compel Discovery,

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filed December 13, 2011, at 6. Defendants objected to this request on the grounds “as vague,

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ambiguous, overbroad and as a request for an unidentifiable document.” Ex. A to Defendants’

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Opposition to Motion to Compel, filed December 29, 2011. Defendants objection is well taken.

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No further response to this request will be required.

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By request number 7, plaintiff seeks “[a]ll documents generated by CSP-

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Sacramentos [sic] Supervisor of Building Trades Philip Albee from 6/1/09 to 11/1/09 in relation

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to living conditions, specifically a pipe leak between cells H-196/197 at CSP/SAC/A.S.U.

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(including but not limited to the document generated by P. Albee on 9/25/09 when interviewing

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Inmate Soto-J00959 regarding the leaky pipe chase between cells H-196/197).” Ex. 5 to Motion

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to Compel, at 6. Defendants objected to this request and also informed plaintiff that no such

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documents exist. See Ex. A to Opposition, at 1. Plaintiff contends that he saw P. Albee conduct

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an interview with inmate Soto and take handwritten notes; he also cites to a response to inmate

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Soto’s administrative appeal that indicates that P. Albee “interviewed inmate Soto and discussed

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the issue.” Ex. 1 to First Amended Complaint.

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Neither party has included a copy of defendants’ responses to the requests for

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production of documents, and it is not clear on the record whether defendants have provided

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plaintiff with a verified response to this request. In view of plaintiff’s representation that he

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witnessed P. Albee taking handwritten notes on 9/25/09 while interview inmate Soto about the

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leaky pipe chase, and good cause appearing, defendants will be granted a period of ten days in

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which to file verification that no such notes existed on or after the date on which plaintiff served

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his first request for production of documents on defendants.

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By request number 9, plaintiff seeks production of “[t]he names, rank. and contact

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information of all staff members who responded to the scene where [he] fell on 8/31/09 and all

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documents created by them as a result of their response to the scene.” Ex. 5 to Motion to

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Compel, at 7. Defendants informed plaintiff that this information was in his medical file and, in
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a letter dated December 12, 2011, represented that defense counsel would “look for the 7219 and

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any other document that may exist.” Ex. A to Opposition, at 2. Good cause appearing,

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defendants will be directed to inform the court in writing within ten days whether any additional

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documents responsive to this request have been produced to plaintiff and if not, why not.

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By request number 15, plaintiff seeks “shower records from CSP-Sacramento

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A.S.U for cell H-196 from 6/1/09 to 11/1/09.” Ex. 5 to Motion to Compel, at 8. Defendants

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objected to this request on the ground that the evidence sought was not relevant and not likely to

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lead to the discovery of admissible evidence. See Ex. A to Opposition, at 2. Plaintiff contends

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these records will corroborate his testimony that the leak forced him to choose between safety

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and hygiene and that he therefore skipped showering on a regular basis during this period.

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Motion to Compel at 9. Plaintiff’s request for written records of how often he took showers

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during the relevant period is reasonably designed to lead to the discovery of admissible evidence.

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Defendants shall produce documents responsive to this request to plaintiff within ten days.

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By request number 16, plaintiff seeks “a post order for defendants Lightfield,

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Lewis and Taylor.” Ex. 5 to Motion to Compel, at 8. Defendants have informed plaintiff that

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there are no post orders for defendant Taylor. See Ex. A to Opposition, at 2. Defendants have

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also informed plaintiff both that the post orders of defendants Lightfield and Lewis “are not

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relevant and will not lead to the discovery of admissible evidence” because the legal obligations

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of said defendants relevant to this action are set out in Osolinsky v. Kane, 92 F.3d 934 (9th Cir.

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1996), and that the post orders would state the supervisory responsibilities of said defendants

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and, if that is what plaintiff was looking for, counsel would “do what [he] can to get them.” Id.

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Within ten days from the date of this order, counsel for defendants shall inform the court in

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writing whether post orders for defendants Lightfield and Lewis have been provided to plaintiff

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and if not, why not.

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By request number 10 of his second request for production of documents, plaintiff
seeks “a diagram of CSP-Sacrament A.S.U H-Pod (including showers).” Ex. 6 to Motion to
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Compel, at 3. Defendants object to producing this document on the ground that it would pose a

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security threat at the prison. See Ex. A to Opposition, at 4. Plaintiff contends that he needs the

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evidence to prove that the water leak was between his cell and the shower and the only way to get

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to the shower from plaintiff’s cell was to walk past the water leak. It is undisputed that plaintiff

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slipped in water that was leaking in an area between plaintiff’s cell and the shower. See

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Defendants’ Statement of Undisputed Facts in Support of Motion for Summary Judgment, filed

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February 17, 2012, at, e.g., Facts 22, 23, and 27. Defendants will not be required to produce any

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documents in response to this request.

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Plaintiff also seeks to compel further responses to request numbers 1 and 10 of

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plaintiff’s first request for admissions, and requests 6 through 22 of plaintiff’s second request for

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admissions. By request number one, plaintiff seeks an admission that an inmate request for

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interview dated August 21, 2009 addressed to R. Taylor is genuine. According to plaintiff,

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defendants responded that they were neither able to admit or deny the authenticity of the

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document because copies of such documents “are not normally retained as a matter of course.”

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Motion to Compel, at 12. Defendants contend that they do not have the original of this document

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in their possession and therefore cannot verify its authenticity. Opposition, at 4. Defendants’

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response is sufficient and no further response will be required.

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By request number 10, plaintiff seeks an admission that the repair to the leaky

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pipe chase was completed on October 6, 2009. Motion to Compel, at 10. In their opposition to

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the motion, defendants, inter alia, represent that counsel informed plaintiff that he would find out

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what he could from defendants about the repair date. Opposition, at 5. Good cause appearing,

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within ten days from the date of this order counsel for defendants shall inform the court in

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writing whether the repair date has been provided to plaintiff and if not, why not.

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By requests 6 through 22 of plaintiff’s second request for admissions, plaintiff

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seeks to compel defendants to admit the authenticity of medical records. Defendants did not

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admit the authenticity of these records because they are not custodians of the records, don’t
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generate them, and haven’t seen them. Ex. A to Opposition, at 4. It is not defendants’

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responsibility to authenticate plaintiff’s evidence for plaintiff. Defendants will not be required to

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respond further to this request.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s December 13, 2011 motion to compel is granted in part, as follows:

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a. Defendants are granted ten days from the date of this order to file and

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serve verification that no notes responsive to request number 7 of plaintiff’s first request for

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production of documents existed on or after the date on which plaintiff served said request on

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defendants.

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b. Within ten days from the date of this order defendants shall inform the

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court in writing within ten days whether any additional documents responsive to request number

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9 of plaintiff’s first request for production of documents have been produced to plaintiff and if

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not, why not.

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c. Within ten days from the date of this order defendants shall produce all

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documents responsive to request number 15 of plaintiff’s first request for production of

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documents.

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d. Within ten days from the date of this order, counsel for defendants shall

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inform the court in writing whether post orders for defendants Lightfield and Lewis have been

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provided to plaintiff and if not, why not.

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e. Within ten days from the date of this order counsel for defendants shall

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inform the court in writing whether counsel has confirmed the repair date in response to request

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number 10 of plaintiff’s first request for admissions and if not, why not.

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2. In all other respects, plaintiff’s December 13, 2011 motion to compel is denied.
DATED: March 30, 2012.

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