Johnson v. Sandy et al

Filing 94

ORDER signed by Judge John A. Mendez on 12/9/2014 ORDERING that Defendants' 85 motion to strike is GRANTED with respect to plaintiffs' unauthorized 82 surreply and remains pending before the magistrate judge with respect to plaintiff&# 039;s 81 response to defendants' privilege log. Within five days from the date of this order defendant Cruzen shall submit to the chambers of the undersigned for in camera review the grievance referred to in his amended interrogatory response and all documents associated therewith responsive to request nos. 12 and 36 of plaintiff's first request for production of documents. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSEPH JOHNSON,

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No. 2:12-cv-2922 JAM AC P

Plaintiff,

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v.

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E. SANDY, et al.,

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ORDER

Defendants.

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On September 29, 2014, defendants filed a motion for reconsideration in part of the

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magistrate judge’s order filed September 15, 2014. (ECF No. 67.) Plaintiff filed an opposition

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on October 10, 2014 (ECF No. 77), and defendants filed a reply on October 16, 2014.1 By this

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request, defendants sought reconsideration of two parts of the magistrate judge’s order,

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specifically, that part of the order requiring defendants to produce documents responsive to the

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following two requests from plaintiff’s first set of requests for production of documents:

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On November 3, 2014, plaintiff filed a response to defendants’ reply brief. (ECF No. 82.) On
November 12, 2014, defendants moved to strike, inter alia, this response as an unauthorized
surreply. (ECF No. 85.) Defendants’ motion was submitted with the filing of their reply. See
Local Rule 230(g). Plaintiff’s response is unauthorized and has not been considered by the court.
Defendants’ motion to strike will be granted as to this response. Defendants also move to strike
plaintiff’s response to defendants’ privilege log (ECF No. 81). That matter is pending before the
magistrate judge and that part of defendants’ motion to strike is not resolved by this order.
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Set One, RFP No. 12: Any and all formal and informal written
complaints (including but not limited to CDCR 602 forms) against
any defendants, alleging excessive use of force that occurred prior
to (June 22, 2012) to the present (including all written responses,
appeals, reports, investigations, and/or correspondence regarding
the complaints).

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Set One, RFP No. 36: Any and all grievances, complaints, or other
documents received by defendants, their agents or supervisors at
CSP-Solano concerning mistreatment of inmates by defendants: E.
Sandy, J. Cruzen, K. Lavagnino, D. Lavergne, E. Cobain, and any
memoranda, investigative files, or other documents created in
response to such documents since June 22, 2012 to the present.

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and that part of the order requiring defendants Cruzen, Lavagnino, Lavergne and Cobian to

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answer the following interrogatory:

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Set One, INT No. 5: During your employment as a (CDC) officer
have you ever had any 602 complaints filed against you. If so
explain (A) have you ever been accused of excessive force[?]”

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Order filed September 15, 2014 (ECF No. 61) (quoting ECF No. 56-4 at 8-9, 19-20).
By order filed November 21, 2014, defendants Cruzen, Lavignino, Lavergne and Cobian

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were directed to, within fifteen days, answer interrogatory number 5 of plaintiff’s first set of

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interrogatories in the manner required by the magistrate judge and file their answers with the

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court. Order filed November 21, 2014 (ECF No. 86) at 2. The order further required any

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defendant whose answer was in the affirmative to inform the court in writing how many excessive

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force 602 complaints had been filed against said defendant date from five years prior to June

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2012 through the present. Id. Defendants have complied with that order. (ECF Nos. 90, 91, 92,

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93.)

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Defendants Lavignino, Lavergne and Cobian have all responded that there were no

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allegations of excessive force against them by any inmate other than plaintiff for the relevant time

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period. See ECF No. 90-1 (Cobian); ECF No. 91-1 (Lavagnino); ECF No. 92-1 (Lavergne).2 It

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follows from the amended interrogatory responses of these defendants demonstrate that there are

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None of these defendants identified their response as responsive to interrogatory number 5 of
plaintiff’s first set of interrogatories. See ECF No. 90-1 (Cobian) (Amended Response to
Interrogatory, Set One, No. 13); ECF No. 91-1 (Lavagnino) (Amended Response to Interrogatory,
Set One, No. 1); ECF No. 92-1 (Lavergne) (Amended Response to Interrogatory, Set One, No.
12). All of the responses provide the substantive information required by the magistrate judge
and this court.
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no documents responsive to requests 12 or 36 of plaintiff’s first request for production of

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documents for these defendants to produce. As to these three defendants, then, the motion for

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reconsideration is moot.

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Defendant Cruzen has responded that a “diligent and reasonable search” of records from

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June 2005 to the present revealed one 602 grievance against defendant Cruzen for excessive force

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against an inmate other than plaintiff. ECF No. 93 at 2.3 Good cause appearing, defendant

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Cruzen will be directed to submit to the chambers of the undersigned for in camera review that

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grievance and all documents associated therewith that are responsive to request nos. 12 and 36 of

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plaintiff’s first request for production of documents. Resolution of the remainder of defendant

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Cruzen’s request for reconsideration is deferred pending the court’s in camera review of

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documents pursuant to this order.

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

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1. Defendants’ motion to strike (ECF No. 85) is granted with respect to plaintiffs’

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unauthorized surreply (ECF No. 82) and remains pending before the magistrate judge with

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respect to plaintiff’s response to defendants’ privilege log (ECF No. 81); and

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2. Within five days from the date of this order defendant Cruzen shall submit to the

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chambers of the undersigned for in camera review the grievance referred to in his amended

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interrogatory response and all documents associated therewith responsive to request nos. 12 and

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36 of plaintiff’s first request for production of documents.

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DATED: December 9, 2014

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/s/ John A. Mendez________________ ______

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UNITED STATES DISTRICT COURT JUDGE

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Defendant Cruzen amended his response to Interrogatory No. 1 of Plaintiff’s First Set of
Interrogatories. ECF No. 93.
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