Thomas v. Darling et al

Filing 57

ORDER signed by Magistrate Judge Carolyn K. Delaney on 12/26/2018 DENYING as untimely 49 and 52 Motions to Compel; GRANTING, sua sponte, plaintiff one last extension of time to file an opposition to 44 Motion for Summary Judgment; and ORDERING plaintiff to file opposition or statement of non-opposition within 21 days from the date of this order. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMAAL THOMAS,

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Plaintiff,

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No. 2:16-cv-02691 JAM CKD

v.

ORDER

CHAD DARLING, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42

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U.S.C. § 1983. Currently pending before the court are two motions to compel filed by plaintiff

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(ECF Nos. 49, 52) and a motion for summary judgment filed by defendants Camp, Haring and

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Pizarro (ECF No. 44). Plaintiff has filed numerous “oppositions” to all of defendants’ pleadings,

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except the pending summary judgment motion. For the reasons that follow, the court will deny

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the plaintiff’s motions to compel as untimely and sua sponte grant him one extension of time in

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order to file any opposition to the pending summary judgment motion.

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I.

Factual and Procedural Background

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This case proceeds on plaintiff’s original complaint alleging that defendant Darling used

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excessive force against him and that defendants Pizarro, Camp, and Haring failed to protect him

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from that use of force on September 24, 2015. See ECF No. 7 (screening order). Plaintiff also

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alleges that defendants were deliberately indifferent to his serious medical needs on the same date
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in violation of the Eighth Amendment.

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All of the events at issue in the complaint occurred on the exercise yard of Facility C at

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California State Prison-Sacramento (“CSP-Sac”). Multiple incidents involving plaintiff, as well

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as other inmates, were captured on video surveillance footage from different security cameras at

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various locations throughout the yard. See ECF No. 45 (Notice of Lodging Video). Based on the

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parties’ separate motions to modify the scheduling order governing this case, the discovery

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deadline was extended to January 12, 2018. ECF No. 31. The order indicated that “[a]ny

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motions necessary to compel discovery shall be filed by that date.” Id. The pending motions to

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compel were constructively filed by plaintiff on April 26, 2018 and May 8, 2018.1 See ECF Nos.

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49, 52. The court granted defendants’ motion to file a copy of the video surveillance footage on

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April 16, 2018, but ordered that plaintiff be permitted to review it at least 14 days before his

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opposition to the summary judgment motion was due. ECF No. 42. In response to this order,

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defendants Camp, Haring and Pizarro lodged a copy of the video surveillance footage with the

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court and sent a copy of it to the Litigation Coordinator at Salinas Valley State Prison where

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plaintiff was housed in order to allow him to view it. See ECF No. 50-1 (Affidavit of Brian S.

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Chan). Technical difficulties in plaintiff’s viewing of the CD ensued which prompted, in part, the

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pending motions to compel.

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II.

Motions to Compel

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In his first motion to compel, plaintiff seeks an original copy of the video surveillance footage

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from September 24, 2015 and all the Rule Violation Reports (“RVR’s”) written by defendants

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related to the incidents on the exercise yard from that date. ECF No. 49. Plaintiff acknowledges

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that he was allowed to view the video surveillance footage on April 19, 23, and 26, but the

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“videos kept pausing, freezing, crashing or just would not play….” ECF No. 49 at 6. He requests

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this information in order “to dispute the defendants undisputed facts and if necessary draft a

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motion to strike the video based on the facts [sic] if the video the defendant’s lodged with the

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courts is incomplete, and/or missing camera views or has been edited from the original

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See Houston v. Lack, 487 U.S. 266, 270-71 (1988) (establishing the prison mailbox rule for
determining the date of filing).
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version….” Id. at 5. As part of his request for relief, plaintiff asks for an additional 21 days to

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file his opposition to the pending summary judgment motion after he receives the requested

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materials. ECF No. 49 at 2.

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On May 21, 2018, defendants Camp, Haring and Pizarro opposed plaintiff’s motion to compel

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arguing that it was untimely filed and was moot because the technical difficulties in viewing the

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videotape had been resolved. ECF No. 50. Defendants additionally argued that plaintiff had

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never requested a copy of the video surveillance footage or the RVR’s in any of his discovery

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requests. Id. Therefore, their discovery responses were not inadequate and the motion to compel

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should be denied.

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In his second motion to compel, plaintiff requests the court to review in camera the

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documents which defendants claimed were privileged as set forth in the privilege log submitted

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with their discovery responses. ECF No. 52 at 1. Plaintiff asserts that these documents are

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necessary “to oppose and/or counter summary judgment.” Id. at 5.

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Defendants Camp, Haring and Pizarro filed an opposition to this motion in which defendant

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Darling joined. ECF Nos. 53-54. They once again argue that the motion should be denied as

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untimely because it was filed well beyond the January 12, 2018 discovery deadline. Id.

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Plaintiff’s reply focuses solely on the conditions under which he was allowed to view the

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video tape surveillance footage again on May 7 and 16, 2018. ECF No. 55 at 2. While the

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previously unviewable footage from two specific cameras was able to be opened and viewed on

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these dates, according to plaintiff, the CD continued “to pause and start over.” Id. As a result,

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plaintiff has not been able to adequately and timely file an opposition to defendants’ summary

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judgment motion. Id. at 6.

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III.

Analysis

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Although there was a delay in receiving defendants’ discovery responses in this case due to

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plaintiff’s prison transfer, plaintiff has acknowledged receiving them at the beginning of February

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2018. See ECF No. 48 (denying motion to compel as moot based on re-service of defendants’

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discovery responses). In his pending motions, plaintiff does not provide any explanation for why

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he delayed requesting an in camera review of the documents defendants claimed were privileged
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until May 2018. See Fed. R. Civ. P. 6(b)(1)(B) (untimely motion must demonstrate excusable

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neglect). Plaintiff does not explain why he could not have filed the pending motions to compel at

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least before the April 17, 2018 dispositive motions deadline.

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With respect to plaintiff’s difficulties viewing the video surveillance footage, the court notes

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that while there is surveillance footage from 10 separate video cameras on the Facility C exercise

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yard, the only portion that is relevant to the conduct of defendants Camp, Haring, and Pizarro

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lasts for a minute and a half and is really only viewable from two of the cameras based on the size

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of the yard and the location of the video cameras. See ECF No. 44-7 at ¶ 7 (Affidavit of

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Defendant Pizarro noting the “security camera footage from camera ‘C Yard PTZ 7,’ from

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10:16:43.313 to 10:18:05, and camera ‘C Yard Cam 8,’ form 10:16:47.650 to 10:18:05.”).

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Plaintiff admits that defendants provided him the opportunity to view this particular video

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footage, but claims in his reply that due to technical difficulties he could not view the entire

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footage because it would start over before finishing. ECF No. 55 at 2. The court also notes that

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the videotape footage was provided to plaintiff’s attorney in the corresponding criminal

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prosecution in the Sacramento County Superior Court. Based on plaintiff’s submission of the

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preliminary hearing transcript from the criminal case, the relevant portions of the video

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surveillance footage were viewed in open court while plaintiff was present. In light of plaintiff’s

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viewing of the video surveillance footage as part of the criminal case as well as this court’s April

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16, 2018 order requiring defendants to make the surveillance footage available to plaintiff to

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review again, the court does not find sufficient cause to review plaintiff’s untimely motions to

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compel on the merits based on his complaints related to the video surveillance footage.

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Accordingly, the motions to compel are untimely and will be denied on that basis. The court will,

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however, grant plaintiff one last extension of time to file his opposition to defendant Camp,

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Haring, and Pizarro’s motion for summary judgment.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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2. The court sua sponte grants plaintiff one last extension of time to file an opposition to

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Plaintiff’s motions to compel (ECF Nos. 49, 52) are denied as untimely.

defendant Camp, Haring and Pizarro’s motion for summary judgment.
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3. Plaintiff’s opposition or statement of non-opposition shall be filed within 21 days from the

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date of this order. The failure to comply with this order may be deemed a waiver of any

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opposition to the granting of defendants’ summary judgment motion. See Local Rule

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230(l).

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4. No further extensions of time will be granted.
Dated: December 26, 2018

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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