Arocha v. Sauceda et al

Filing 80

ORDER signed by Magistrate Judge Kendall J. Newman on 10/22/2013 DENYING 70 Motion for Extension of Time; DENYING 73 Motion to Compel as to the request for information regarding the locations of Defendants Munoz and Montanez; GRANTING 73 Motion to Compel Defendants to provide additional information for service of Defendant Hart; ORDERING the defendants to conduct an inquiry regarding the location of Defendant Hart and to provide the information set forth within thirty (30) days; DIRECTING the U.S. Marshal to treat all information regarding Defendant Hart's private address as confidential. (cc: USM) (Michel, G)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RUDY AROCHA,

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Plaintiff,

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No. 2: 11-cv-2959 KJN P

v.

ORDER

E. SAUCEDA, et al.,

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Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. Pending before the court is plaintiff’s motion to compel filed September 6,

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2013. For the following reasons, plaintiff’s motion is granted in part and denied in part.
In the motion to compel, plaintiff requests that defendants provide him with information

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for service of defendants Hart, Munoz and Montanez. On June 11, 2013, the court ordered

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service of these defendants. (ECF No. 50.) On June 25, 2013, service as to defendants Munoz

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and Montanez was returned unexecuted because they could not be located in the “CDCR locator.”

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(ECF No. 53.) On August 7, 2013, service as to defendant Hart was returned unexecuted because

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“S. Hart named in the complaint identifies a female MTA who was promoted to Sergeant. This is

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clearly not S. Hart at DVI.” (ECF No. 63.)

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Defendants oppose plaintiff’s motion to compel on grounds that plaintiff’s letters

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addressed to defendants requesting information regarding the location of defendants do not

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comply with the requirements of a Request for Production of Documents under Federal Rule of

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Civil Procedure Rule 34. Defendants also object that the official information privilege bars

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plaintiff’s request for personnel information concerning employees of California Department of

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Corrections and Rehabilitation (“CDCR). Defendants also contend that the information plaintiff

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seeks regarding defendants Munoz and Montanez does not exist, as demonstrated by a letter from

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the Mule Creek State Prison (“MCSP”) Litigation Coordinator addressed to plaintiff. Attached to

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plaintiff’s motion to compel is a letter to plaintiff from the MCSP Litigation Coordinator dated

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August 8, 2013. (ECF No. 73 at 20.) This letter states that MCSP does not have a record of

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either employee, i.e., defendants Munoz and Montanez, who plaintiff was requesting information

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on. (Id.)

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As for defendants Munoz and Montanez, it appears that defendants’ objection that the

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information sought does not exist is well taken. The returned USM-285 forms indicate that there

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is no record that either of these defendants is currently employed by CDCR. The letter from the

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MCSP Litigation Coordinator indicates that there is no record of either defendant ever being

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employed at MCSP. The court has reviewed the exhibits attached to plaintiff’s third amended

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complaint and finds no mention of either defendant Munoz or defendant Montanez in any of the

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responses to plaintiff’s administrative grievances prepared by prison officials. (See ECF Nos. 40-

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1, 40-2, 40-3, 40-4.)

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Because plaintiff has apparently misidentified defendants Munoz and Montanez, as there

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is no record of their having ever been employed at MCSP where the claims allegedly occurred,

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plaintiff’s motion to compel defendants to provide further information for service of these

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defendants is denied.

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As for defendant Hart, who is identified as a woman in the amended complaint, it is clear

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that this defendant exists as she is referenced in a response by prison officials to one of plaintiff’s

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administrative grievances. (ECF No. 40-1 at 85.) The U.S. Marshal has informed the court that

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MCSP prison officials informed the U.S. Marshal that defendant Hart had been transferred to
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Deuel Vocational Institution (“DVI”). For that reason, service was attempted on defendant Hart

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at DVI, although unsuccessfully.

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Defendants’ objection that personnel information regarding CDCR employees, such as

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home addresses, should not be disclosed to inmates is well taken. However, it is not clear that

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defendant Hart is no longer employed by CDCR. In their letter responding to plaintiff’s request

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for information regarding defendants Munoz and Montanez, defendants stated that if they learned

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any information concerning the location of these defendants, they would forward the information

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to the U.S. Marshal.

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Within thirty days of the date of this order, defendants shall make an inquiry in order to

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determine if defendant Hart is currently employed by CDCR. If she is, defendants shall provide

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this information to the U.S. Marshal and the court. If defendant Hart is no longer employed by

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CDCR, defendants shall provide defendant Hart’s private address for service to the U.S.

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Marshal’s office only and notify the court that this has been done. The U.S. Marshal shall treat

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the information regarding defendant Hart’s private address as confidential. If defendants are

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unable to locate any information for service of defendant Hart, they shall notify the court within

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that time.

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On September 5, 2013, plaintiff filed a motion for an extension of time to submit his

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forms for service of defendants Munoz and Montanez. Because the court has denied plaintiff’s

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motion to compel seeking additional information for service of these defendants, plaintiff’s

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September 5, 2013 motion for an extension of time is denied as unnecessary.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for an extension of time (ECF No. 70) is denied;

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2. Plaintiff’s motion to compel (ECF No. 73) is denied as to his request for

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information regarding the locations of defendants Munoz and Montanez;

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3. Plaintiff’s motion to compel defendants to provide additional information for

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service of defendant Hart (ECF No. 73) is granted; within thirty days of the

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date of this order, defendants shall conduct an inquiry regarding the location of

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defendant Hart and provide the information set forth above;
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4. If defendants provide defendant Hart’s private address to the U.S. Marshal,

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the U.S. Marshal shall treat all information regarding defendant Hart’s

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private address as confidential; and

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5. The Clerk of the Court shall serve a copy of this order on the U.S. Marshal.
Dated: October 22, 2013

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