Jones v. Clark, et al.

Filing 47

ORDER signed by Magistrate Judge Carolyn K. Delaney on 08/25/15 ordering plaintiff's first motion to compel 39 is granted in part and denied in part: Denied as moot as to the request for production of documents; and granted as to the request for admissions. Defendant shall serve a response to plaintiff's RFA's no later than 14 days from the date of this order. Plaintiff's second motion to compel 40 is denied as to requests nos. 5 and 8. As to request nos. 1-4, within 30 days of the date of this order, defendant shall submit for in camera review the five documents identified in the Azevedo Declaration, along with a motion to file these documents under seal pursuant to L.R. 141. The dispositive motion deadline of 9/18/15 is vacated pending the resolution of these discovery issue to be reset at a later time. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GERALD JONES,

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No. 2:14-cv-0987 CKD P

Plaintiff,

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v.

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C. CLARK, et al.,

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ORDER

Defendants.

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This pro se prisoner action pursuant to 42 U.S.C. § 1983 proceeds against defendant

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Stephens. Plaintiff claims that defendant used excessive force against him on September 25,

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2012, violating the Eighth Amendment ban on cruel and unusual punishment. (ECF No. 9 at 13.)

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Plaintiff alleges that defendant forced him to the ground when plaintiff had a cane for lower back

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problems, causing him extreme pain and discomfort. (Id. at 13, 31-32.)

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Before the court are plaintiff’s two motions to compel discovery. (ECF Nos. 39 & 40.)

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Defendant has opposed both motions. (ECF Nos. 41 & 42.) Plaintiff has filed a reply. (ECF No.

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43.) The court addresses these motions in turn.

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I. Legal Standard

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Under Rule 26 of the Federal Rules of Civil Procedure, “[p]arties may obtain discovery

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regarding any non-privileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ.

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P. 26(b). “Relevant information need not be admissible at trial if the discovery appears
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reasonably calculated to lead to the discovery of admissible evidence.” Id.
Under Rule 37 of the Federal Rules of Civil Procedure, “a party seeking discovery may

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move for an order compelling an answer, designation, production, or inspection.” Fed. R. Civ. P.

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37(a)(3) (B). The court may order a party to provide further responses to an “evasive or

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incomplete disclosure, answer, or response.” Fed. R. Civ. P. 37(a)(4). “District courts have

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‘broad discretion to manage discovery and to control the course of litigation under Federal Rule

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of Civil Procedure 16.’” Hunt v. County of Orange, 672 F.3d 606, 616 (9th Cir. 2012).

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II. Analysis

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A. First Motion

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In his first motion, plaintiff asserts that, as of June 29, 2015, defendant had not responded

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to two sets of discovery requests he served in May 2015. (ECF No. 39.) The first was his

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Request for Admissions, served May 8, 2015. The second was his Request for Production of

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Documents, served May 20, 2015. (Id.)

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In opposition, defendant’s counsel asserts that he timely responded to plaintiff’s Request

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for Production of Documents by the June 30, 2015 discovery deadline. (ECF No. 41; see ECF

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No. 38.) He attaches a Declaration of Service to this effect. (ECF No. 41, Ex. A at 5.) Thus

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plaintiff’s motion will be denied as moot as to the document requests.

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As to the Request for Admissions (“RFAs”), plaintiff asserts that he “personally served

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the defense counsel” with his RFAs at Mule Creek State Prison on May 8, 2015. (ECF No. 43;

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see ECF No. 40 at 8-10.) Defense counsel acknowledges this, but notes that the RFAs were

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untimely, as the discovery deadline at the time was May 11, 2015. (ECF No. 41 at 2; see ECF

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No. 34.) After reviewing the RFAs, defense counsel declares, he returned them to plaintiff and

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informed him that he would have to seek leave of court to serve them after the deadline and then

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re-serve them in a timely fashion. (Id. at 2.) Plaintiff denies that defense counsel ever returned

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the RFAs to him. (ECF No. 43 at 2.)

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On May 18, 2015, the court granted plaintiff’s motion to modify the scheduling order,

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setting the discovery deadline at June 30, 2015. (ECF No. 38.) On June 1, 2015, plaintiff sent a

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letter to defense counsel seeking to resolve discovery issues, including the RFAs, but did not
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receive a reply. (ECF No. 43 at 2-3.) Plaintiff did not re-serve the RFAs before June 30, 2015.

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(See ECF No. 41 at 3.)

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In light of plaintiff’s pro se status and his attempts to serve and discuss the RFAs before

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June 30, 2015, the court will order defendant to respond to the RFAs within 14 days.

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B. Second Motion

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Plaintiff’s second motion concerns defendant’s responses to the document requests. He

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argues that defendant’s responses are insufficient as to Requests Nos. 1-5 and 8. (ECF No. 40.)

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In the disputed requests, plaintiff sought the following documents (id. at 12-13):
1. “All documents produced by the first line supervisor or response
supervisor pursuant to CCR Title 15 § 3268(a)(9).”

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Defendant objected on the grounds of overbreadth, and irrelevance. He also asserted that,

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to extent the request encompassed personnel or investigatory documents concerning the

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September 25, 2012 incident, these were privileged and confidential. However, in response to

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this request he produced two non-confidential documents: a CDCR Form 837 Crime/Incident

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report and a CDCR Form 115 Rules Violation Report, both concerning the September 25, 2012

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incident.

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Defendant included with his responses to plaintiff a declaration by D. Azevedo, an Office

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Assistant to the Litigation Coordinator for Mule Creek State Prison. (ECF No. 42, Ex. A.)

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Azevedo declares that a search at MCSP turned up five documents that “may potentially be

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deemed as relating to the use of force investigation and critique of the September 25, 2012

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incident”: (1) November 30, 2012 Institutional Executive Review Committee Critique and

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Qualitative Evaluation; (2) November 30, 2012 IERC Use of Force Review and Further Action

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Recommendation; (3) September 25, 2012 Incident Commander’s Review/Critique Use of Force

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Incidents; (4) October 2, 2012 Manager’s Review – First Level Use of Force Incidents; and (5)

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October 3, 2012 Manager’s Review – Second Level Use of Force Incidents. (Id., ¶ 5.)

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Azevedo declares that “[t]he investigative/inquiry findings of these documents (and

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related investigations) are considered confidential and maintained in strict confidence by

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CDCR[,]” as their disclosure would compromise institutional safety and security. (Id., ¶¶7-10.)
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Azevedo further declares that CDCR treats personnel records as confidential, as their disclosure

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could threaten the employee and jeopardize prison operations. (Id., ¶¶ 13-14.)

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In his motion, plaintiff argues that internal review documents should be discoverable
under a protective order.
“Federal common law recognizes a qualified privilege for official information.” Sanchez

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v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir. 1990). “To determine whether the

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information sought is privileged, courts must weigh the potential benefits of the disclosure against

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the potential disadvantages. If the latter is greater, the privilege bars discovery.” Id. at 1033–34.

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“[W]here otherwise discoverable information would pose a threat to the safety and security of a

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prison . . . , a need may arise for the Court to balance interests in determining whether disclosure

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should occur.” Scott v. Palmer, 2014 WL 6685810, *1 (E.D. Cal. Nov. 26, 2014) (collecting

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cases). “In the context of civil rights suits against [corrections officials], this balancing approach

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should be ‘moderately pre-weighted in favor of disclosure.’” Soto v. City of Concord, 162 F.R.D.

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603, 613 (N.D. Cal. 1995). The party invoking the privilege must at the outset make a

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“substantial threshold showing” by way of a declaration or affidavit from a responsible official

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with personal knowledge of the matters attested. Id. “If the court concludes that a defendant’s

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submissions are not sufficient to meet the threshold burden, it will order disclosure of the

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documents in issue. If a defendant meets the threshold requirements, the court will order an in

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camera review of the material and balance each party’s interests.” Id.

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Based on the Azevedo declaration, defendant has made a threshold showing that the five

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investigative documents identified above are privileged. Thus, the court will order defendant to

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submit these materials for in camera review, along with a motion to file them under seal pursuant

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to Local Rule 141.
2. “All documents produced by the second line supervisor or the
incident commander pursuant to CCR Title § 3268(a)(11).”

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As above, defendant objected on the grounds of overbreadth, irrelevance, and

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confidentiality. However, in response to this request, he produced 39 pages of non-confidential

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documents.
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In his motion, plaintiff again argues against the blanket assertion of privilege for

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investigatory and personnel documents. As noted above, the court will review in camera the five

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such documents identified as relevant and possibly responsive to this request.

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3. “All documents produced by the Institutional Executive Review
Committee (IERC).”
Defendant objected on the same grounds as above. Citing the Azevedo declaration, he

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produced no documents in response to this request. The court will review in camera the five

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documents identified as relevant and possibly responsive to this request.

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4. “All documents of evaluations and reviews from the Joint Use
Committee (JUC).”
Defendant responded to this request as he did to No. 3, citing various objections and

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confidentiality. The court will review in camera the five documents identified as relevant and

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possibly responsive to this request.

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5. “CDCR form 3012 & 3014, required when an inmate has made
an allegation of excessive force.”
Defendant objected on the grounds of vagueness, overbreadth, and irrelevance, and further

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stated that no such documents existed or were created in response to the September 25, 2012

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incident. In opposition to plaintiff’s motion, defendant again asserts that the search for

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responsive documents at MCSP did not turn up any such documents.

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This court cannot order a defendant to produce documents that do not exist or are not in

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the defendant’s possession or control. See Fed. R. Civ. P. 34(a); United States v. Int’l Union of

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Petroleum & Indus. Workers, 870 F.2d 1450, 1452 (9th Cir. 1989) (“The party seeking the

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production of documents . . . bears the burden of proving that the opposing party has such

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control.”). Thus the court will deny plaintiff’s motion as to Request No. 5.

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8. “All video production material (surveillance video) produced in
the normal course of business on A yard on the day alleged in the
plaintiff’s complaint.”

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Defendant responded that no such video exists. Plaintiff argues that CDCR policy

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requires a video interview after an allegation of excessive force. For the same reasons as above,

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the court will deny plaintiff’s motion as to Request No. 8.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s first motion to compel (ECF No. 39) is granted and denied in part:

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a. Denied as moot as to the Request for Production of Documents; and

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b. Granted as to the Request for Admissions. Defendant shall serve a response to

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plaintiff’s RFAs no later than fourteen days from the date of this order.

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2. Plaintiff’s second motion to compel (ECF No. 40) is denied as to Requests Nos. 5 & 8.

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3. As to Requests Nos. 1-4, within thirty days of the date of this order, defendant shall

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submit for in camera review the five documents identified in the Azevedo Declaration, along with
a motion to file these documents under seal pursuant to L.R. 141.
4. The dispositive motion deadline of September 18, 2015 is vacated pending the

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resolution of these discovery issues, to be reset at a later time.

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Dated: August 25, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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