Deere v. Unknown CDC - Employees Prison Law Offices

Filing 39

ORDER signed by Magistrate Judge Deborah Barnes on 8/21/2018 DENYING plaintiff's 33 motion for whistleblower protection and GRANTING plaintiff's 34 motion to re-open discovery. The discovery deadline, which included any motions to compel discovery, is CONTINUED to 10/8/2018; the deadline for other pretrial motions is CONTINUED to 12/15/2018. The interrogatories served by plaintiff on 5/21/2018 shall be deemed re-served as of the date of this order. Defendant shall serve a response to those interrogatories within 30 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ARTHUR RAY DEERE, Sr.,

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No. 2:16-cv-1694 DB P

Plaintiff,
v.

ORDER

JOE LIZARRAGA, ,
Defendant.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action under

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42 U.S.C. § 1983. Plaintiff alleges the air quality at Mule Creek State Prison (“MCSP”) was so

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poor that it worsened his Chronic Obstructive Pulmonary Disease (“COPD”) and his overall

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health. Before the court are two motions. Plaintiff seeks “whistleblower protection” for a prison

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employee witness. (ECF No. 33.) In addition, plaintiff moves to re-open discovery. (ECF No.

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34.) For the reasons set forth below, the court will deny plaintiff’s motion for whistleblower

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protection and grant plaintiff’s motion to re-open discovery.

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BACKGROUND

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Plaintiff is currently incarcerated at the California Institution for Men. This case is

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proceeding on the Eighth Amendment claim in plaintiff’s second amended complaint. (ECF No.

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19.) Plaintiff’s allegations involve conduct that occurred when he was incarcerated at MCSP.

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Plaintiff alleges defendant Lizarraga, the warden at MCSP, was aware that plaintiff was a high
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risk medical inmate with chronic COPD and emphysema but nonetheless exposed plaintiff to

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hazardous materials, including dust, pollens, and asbestos. Plaintiff alleges he suffered daily

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asthma attacks and constant stress that aggravated his heart condition and that his lung condition

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worsened. The court found these allegations sufficient to state a claim that defendant was

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deliberately indifferent to plaintiff’s serious medical needs in violation of the Eighth Amendment.

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(See ECF No. 21.)

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On February 28, 2018, defendant filed an answer. (ECF No. 28.) On March 1, the court

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issued a Discovery and Scheduling Order, which set deadlines of June 22, 2018 for discovery and

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September 14, 2018 for pretrial motions. (ECF No. 29.) On July 13, 2018, plaintiff filed the

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present motions. Each is addressed below.
MOTION FOR WHISTLEBLOWER PROTECTION
Plaintiff states that he is seeking a court order granting “whistleblower protection” to an

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employee of the California Department of Corrections and Rehabilitation (“CDCR”) who,

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plaintiff alleges, informed plaintiff about air-borne asbestos generated by a rock quarry near

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MCSP. (ECF No. 33.) Plaintiff contends whistleblower protection is necessary because

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defendant “could and would retaliate against this employee.” Plaintiff asks the court to order

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defendant to refrain from questioning this witness before trial. Plaintiff also appears to seek

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permission to withhold this witness’s name until trial. (Id. at 3.)

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Defendant argues that state and federal whistleblower laws provide protections for

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employees and those protections must be sought by the employees. (ECF No. 36.) Defendant is

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correct. California’s Whistleblower Protection Act provides for a cause of action by an employee

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who suffered an adverse employment action as a result of protected activity. See Robles v.

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Agreserves, Inc., 158 F. Supp. 3d 952, 1007-08 (E.D. Cal. 2016); Cal. Lab. Code § 1102.5(b).

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Similarly, the whistleblower protections contained in the federal Clean Air Act and Toxic

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Substances Control Act provide for actions by employees against employers who have retaliated

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against them. See 42 U.S.C. § 7622(b)(1) (Clean Air Act); 42 U.S.C. § 2622(b)(1) (Toxic

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Substances Act). Additionally, plaintiff lacks standing to seek whistleblower protection for a

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third party CDCR employee.
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Plaintiff’s motion can also be construed as seeking a protective order preventing

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defendant from contacting this witness prior to any trial and, possibly, to allow plaintiff to refuse

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to identify the witness before trial. In opposing the motion, defendant relies on the standards for

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issuance of a protective order during discovery under Federal Rule of Civil Procedure 26.

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However, this issue is not arising during discovery so Rule 26 is not applicable.

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Rather, the court appears to have discretionary authority to issue a protective order upon a

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showing of good cause to prevent interference with a potential witness, Disability Rights New

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Jersey, Inc. v. Velez, Civ. No. 10-3950(DRD), 2011 WL 2937355, at *4 (D. N.J. July 19, 2011),

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or because a witness fears retaliation, Ben David v. Travisono, 495 F.2d 562, 564 (1st Cir. 1974)

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(protective order may be appropriate where witness faces a reasonable fear of retaliation).1 To

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show good cause, a plaintiff must present evidence of conduct that would give rise to a reasonable

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fear of interference with a witness. Velez, 2011 WL 2937355, at *5; Adams v. NaphCare, Inc.,

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No. 2:16-cv-229, 2016 WL 10492102, at *10 (E.D. Va. July 25, 2016), rep. and reco. adopted,

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2016 WL 4618894 (E.D. Va. Sept. 6, 2016). A plaintiff may also be required to show that the

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court’s factfinding “may be materially impaired unless a protective order is entered.” Adams,

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2016 WL 10492102, at *10.

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In the present case, plaintiff provides no basis for this court to find that the unnamed

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CDCR employee would face retaliation or any sort of harassment if he were to be identified as a

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witness in this case. The court finds no basis for issuance of the protective order plaintiff seeks.

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MOTION TO RE-OPEN DISCOVERY

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In his second motion, plaintiff seeks to re-open discovery. In the March 1, 2018 order, the

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court set a discovery deadline of June 22. That order informed the parties that “[a]ll requests for

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discovery . . . shall be served not later than sixty days prior to” the discovery deadline. That

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means plaintiff must have served his discovery by April 23, 2018 to be timely.

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In Memphis Invest., GP v. Waite, No. 2:13-cv-1282-JAD-NJK, 2014 WL 547962, at *5 (D.
Nev. Feb. 11, 2014), the court found that such a protective order required a showing of
entitlement to a preliminary injunction, a higher standard than good cause. Because this court
finds plaintiff fails to meet even a good cause standard, his motion would also fail under a
preliminary injunction standard.
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Plaintiff seeks to re-open discovery because he mistakenly thought he had until June 22 to

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serve discovery requests. (ECF No. 34 at 1-2.) He served interrogatories on defendant on May

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21, 2018. (See id. at 4.) Defendant served his response on July 3, in which he objected to all

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interrogatories as untimely. (See id. at 7-10.) Pursuant to the mailbox rule, plaintiff filed this

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motion on July 9 when he placed it in the prison mail. (See id. at 12.)

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Modification of a scheduling order requires a showing of good cause. Fed. R. Civ. P.

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16(b)(4). Given plaintiff’s pro se status, and his timely filing of this motion shortly after he

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received defendant’s response to his interrogatories, the court finds plaintiff’s mistake justifies a

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finding of good cause to modify the scheduling order. Accordingly, the court will extend the

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discovery deadline so that plaintiff’s interrogatories will be considered timely.
For the reasons set forth above, and good cause appearing, IT IS HEREBY ORDERED as
follows:

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1. Plaintiff’s motion for whistleblower protection (ECF No. 33) is denied.

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2. Plaintiff’s motion to re-open discovery (ECF No. 34) is granted. The discovery

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deadline, which includes any motions to compel discovery, is continued to October 8,

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2018. The deadline for other pretrial motions is continued to December 15, 2018.

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3. The interrogatories served by plaintiff on May 21, 2018 shall be deemed re-served as

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of the date of this order. Defendant shall serve a response to those interrogatories

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within thirty days of the date of this order.

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Dated: August 21, 2018

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DLB:9
DB/prisoner-civil rights/deer1694.whistle

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