Thomas v. Voong

Filing 99

ORDER signed by Magistrate Judge Craig M. Kellison on 09/23/15 ordering plaintiff's motion 70 is denied without prejudice. Plaintiff's motion 87 is denied. Plaintiffs' motion 98 is denied as unnecessary. (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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JASON LATRELL THOMAS,

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Plaintiff,
vs.

ORDER

TERRY, et al.,
Defendants.

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No. 2:12-CV-0471-MCE-CMK-P

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Pending before the court are plaintiff’s motions (Docs. 70, 87, and 98)

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related to discovery.

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In his first motion (Doc. 70), filed on April 6, 2015, plaintiff seeks issuance of a

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subpoena duces tecum to a third party, the Internal Investigation Office of the California Medical

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Facility. The California Department of Corrections and Rehabilitation (“CDCR”) specially

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appeared to oppose the motion. In its opposition, CDCR asserts that the documents plaintiff

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seeks are protected under the official information privilege recognized in Sanchez v. City of

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Santa Ana, 936 F.2d 1027 (9th Cir. 1991). CDCR also asserts that the documents are

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confidential under California law and may not be disclosed to an inmate.
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At the outset, the court notes that CDCR’s arguments would be more properly

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raised in the context of a motion to quash. In any event, given that the original scheduling order

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opening discovery in this action has been vacated pending the filing of and response to a fourth

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amended complaint, plaintiff’s motion will be denied without prejudice to renewal following

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issuance of a new scheduling order re-opening discovery in this action.

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In his second motion (Doc. 87), filed on June 8, 2015, plaintiff seeks an order

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compelling further responses to interrogatory No. 3 propounded to defendant Lawrence and

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interrogatory Nos. 2, 3, 4, and 6 propounded to defendant Terry. According to plaintiff,

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defendants “did not properly invoke the official information privilege when answering their

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interrogatories.” Specifically, plaintiff cites United States v. Reynolds , 345 U.S. 1 (1953), for

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the proposition that, in order to properly assert the privilege, defendants were required to submit

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a declaration from the official having actual control over the requested documents.

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Upon review of the disputed discovery, the court observes that defendants

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affirmatively asserted the official information privilege recognized in Sanchez. Reynolds is

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inapplicable to this case because it dealt with the United States’ privilege against revealing

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military secrets. Plaintiff has cited no case supporting his position that defendants improperly

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invoked the official information privilege in this case, and has made no argument that the

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privilege does not apply to the discovery at issue. Plaintiff’s motion to compel will be denied.

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In his third motion (Doc. 98), filed on September 21, 2015, plaintiff seeks an

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order extending the dispositive motion filing deadline. Plaintiff’s motion will be denied as

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unnecessary because the schedule for this case, including the dispositive motion filing deadline,

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was vacated on March 23, 2015, pending the filing of and response to a fourth amended

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complaint.

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s motion (Doc. 70) is denied without prejudice;

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2.

Plaintiff’s motion (Doc. 87) is denied; and

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3.

Plaintiff’s motion (Doc. 98) is denied as unnecessary.

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DATED: September 23, 2015
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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