(PC) Collins v. Kurgan, et al.

Filing 42

ORDER signed by Magistrate Judge Chi Soo Kim on 11/25/24 DENYING 39 , 40 and 41 Motions without prejudice. (Licea Chavez, V)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BOBBY LEE COLLINS, 12 No. 2:23-cv-1600 CSK P Plaintiff, 13 v. 14 KURGAN, et al., 15 ORDER Defendants. 16 Plaintiff is a state prisoner proceeding pro se and in forma pauperis. This action proceeds 17 18 on plaintiff’s amended complaint in which he alleges that defendants Kurgan and Jones used 19 excessive force on plaintiff on November 5, 2022, in violation of the Eighth Amendment. (ECF 20 No. 17.) Plaintiff recently filed three documents, which the Court addresses below. 21 I. MOTION FOR SUBPOENA 22 On November 20, 2024, plaintiff filed a motion for video footage from November 5, 23 2022, and seeks a subpoena directed to defendants’ legal team. (ECF No. 39.) Plaintiff also 24 states that after this case did not settle on October 3, 2024, defendants “filed a complained [sic] 25 claiming” plaintiff’s administrative grievance concerning the defendants’ use of excessive force 26 was “never filed.” (Id. at 1.) Plaintiff appended a copy of a March 9, 2023 memo from the 27 Office of the Inspector General referencing plaintiff’s grievance log number 329129 and 28 Allegations Against Staff Tracking System log number 20027774 and contends this memo 1 1 demonstrates plaintiff exhausted his administrative remedies. (Id.) Plaintiff also argues that this 2 memo demonstrates defendants lied under oath to cover up plaintiff’s claim and requests a court 3 hearing to be set as soon as possible. (Id. at 2.) 4 1. Exhaustion Issue 5 The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be 6 brought with respect to prison conditions under section 1983 . . . , or any other Federal law, by a 7 prisoner confined in any jail, prison, or other correctional facility until such administrative 8 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “[T]he PLRA’s exhaustion 9 requirement applies to all inmate suits about prison life, whether they involve general 10 circumstances or particular episodes, and whether they allege excessive force or some other 11 wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). The PLRA’s exhaustion requirement is an 12 affirmative defense, meaning the “defendants must plead and prove” failure to exhaust. Fordley 13 v. Lizarraga, 18 F.4th 344, 350-51 (9th Cir. 2021) (citation omitted). 14 Plaintiff’s reference to defendants filing a “complained [sic]” is unclear. (ECF No. 39 at 15 1.) However, the Court’s docket does not reflect any filing by defendants since the October 3, 16 2024 settlement conference. Moreover, plaintiff’s submission of evidence to rebut an exhaustion 17 claim is premature. Defendants must first file a motion raising such allegation; then plaintiff is 18 entitled to file an opposition and evidence in support of such opposition. Local Rule 230(l). 19 Defendants have not filed any such motion. And, in any event, the parties were previously 20 informed that all motions are heard on the papers without the need for a hearing, unless otherwise 21 ordered by the Court. (ECF No. 38 ¶ 7.) Plaintiff’s motion (ECF No. 39) is denied. 22 2. Video Footage 23 To the extent plaintiff seeks video footage, his motion is premature because he has not 24 demonstrated that he first sought the video footage from defendants through discovery. It is 25 plaintiff’s obligation to marshal the evidence in support of his claims using the discovery 26 mechanisms provided by the Federal Rules of Civil Procedure. For example, plaintiff may seek 27 such video footage by propounding a request for production of documents and other tangible 28 things under Rule 34 of the Federal Rules of Civil Procedure. Plaintiff is informed that court 2 1 permission is not necessary for discovery requests and that neither discovery requests served on 2 an opposing party nor that party’s responses should be filed until such time as a party becomes 3 dissatisfied with a response and seeks relief from the court pursuant to the Federal Rules of Civil 4 Procedure. Discovery requests between the parties shall not be filed with the court unless, and 5 until, they are at issue. Plaintiff’s motion regarding video footage is denied as premature. (ECF 6 No. 39.) 7 II. PUTATIVE MOTION FOR DISCOVERY 8 On November 21, 2024, plaintiff filed a document styled, “Motion for Discovery 9 Reasons.” (ECF No. 40.) In this second motion, plaintiff alleges that defendants’ counsel “is not 10 properly checking these correctional officers’ testimony or requesting” video footage which 11 “should be considered.” (Id. at 1.) Plaintiff asks the Court to help him solve the “truthfulness and 12 get justice,” and claims he is being taken advantage of due to his disability. (Id. at 1-2.) Plaintiff 13 appends a document entitled “California Department of Corrections and Rehabilitation Body- 14 Worn Camera Technology Frequently Asked Questions (FAQs),” as well as a July 31, 2023 15 memo from the litigation office at California State Prison, Corcoran to plaintiff. (Id. at 3-5, 7.) 1 16 Plaintiff’s motion is not properly construed as a motion for discovery. Plaintiff identifies 17 no discovery request or response that he contends is insufficient. As discussed above, if plaintiff 18 wishes to view pertinent video footage of the incidents herein, he must first propound a discovery 19 request to defendants. Fed. R. Civ. P. 34. For these reasons, plaintiff’s motion is denied. (Id.) 20 III. MOTION REGARDING EXHAUSTION On November 21, 2024, plaintiff filed a third motion, styled “Motion,” in which he again 21 22 purports to provide documents demonstrating he exhausted his administrative remedies. (ECF 23 No. 41.) Plaintiff reiterates that defense counsel is not investigating the correctional officers’ 24 stories, and claims he is still trying to settle this case. (Id. at 2.) Plaintiff also writes “unwilling 25 26 27 28 1 Plaintiff also provided a copy of the Notice of Electronic Filing of the earlier order issued by Magistrate Judge Sheila Oberto, who transferred plaintiff’s earlier case (No. 1:23-cv-1127 SKO) to Sacramento. (Id. at 6.) Plaintiff is advised that the current docket for Case No. 2:23-cv-1600 CSK reflects all filings made in the Fresno case as well as those made in the Sacramento case. Plaintiff is not required to re-file copies of documents already filed on the Court’s docket. 3 1 to produce camera footage which Folsom facility is fully secured with camera[s] for issue[s] like 2 this,” but plaintiff does not identify who was unwilling, or in what context such a request was 3 made. (Id.) Plaintiff is cautioned that although prisons use security cameras, there are many 4 issues that may preclude production of video footage, for example, camera placement, whether a 5 particular camera was operational, as well as whether particular video footage has been retained. 6 This is why it is important for plaintiff to propound a discovery request to defendants to obtain 7 pertinent video footage, because if such footage did not exist or no longer exists, it could not be 8 produced. Because there is no pending motion concerning the exhaustion of administrative 9 remedies, as also described above, plaintiff’s submission of documentary evidence is premature, 10 and his motion is denied. 2 11 IV. PREMATURE SUBMISSION OF EXHIBITS 12 In his third motion, plaintiff appears to ask the Court to add his documents to this action. 13 (ECF No. 41 at 2.) Plaintiff is advised that the Court is not a repository for the parties’ evidence. 14 As explained above, if defendants file a motion for summary judgment alleging plaintiff failed to 15 exhaust administrative remedies, plaintiff will have 21 days to file an opposition accompanied by 16 his documentary evidence in support of his opposition. 17 V. CONCLUSION 18 Accordingly, IT IS HEREBY ORDERED that plaintiff’s motions (ECF Nos. 39, 40, 41) 19 are denied without prejudice. The documents appended to such motions are placed in the court 20 file and disregarded. Plaintiff is cautioned that further filing of discovery motions or requests, 21 except as required by rule of court, may result in an order of sanctions, including, but not limited 22 to, a recommendation that this action be dismissed. 23 Dated: November 25, 2024 24 25 /1/coll1600.411 26 2 27 28 Plaintiff also appended a copy of the March 19, 2024 Order Referring Case to Post-Screening Early ADR and Staying Case for 120 Days, signed by Magistrate Judge Carolyn Delaney. (ECF No. 41 at 3-6.) It is unclear why plaintiff provided this copy because the settlement conference already took place on October 3, 2024. 4

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