(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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BOBBY LEE COLLINS,

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No. 2:23-cv-1600 CSK P

Plaintiff,

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v.

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KURGAN, et al.,

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ORDER

Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis. This action proceeds

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on plaintiff’s amended complaint in which he alleges that defendants Kurgan and Jones used

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excessive force on plaintiff on November 5, 2022, in violation of the Eighth Amendment. (ECF

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No. 17.) Plaintiff recently filed three documents, which the Court addresses below.

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I.

MOTION FOR SUBPOENA

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On November 20, 2024, plaintiff filed a motion for video footage from November 5,

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2022, and seeks a subpoena directed to defendants’ legal team. (ECF No. 39.) Plaintiff also

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states that after this case did not settle on October 3, 2024, defendants “filed a complained [sic]

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claiming” plaintiff’s administrative grievance concerning the defendants’ use of excessive force

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was “never filed.” (Id. at 1.) Plaintiff appended a copy of a March 9, 2023 memo from the

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Office of the Inspector General referencing plaintiff’s grievance log number 329129 and

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Allegations Against Staff Tracking System log number 20027774 and contends this memo
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demonstrates plaintiff exhausted his administrative remedies. (Id.) Plaintiff also argues that this

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memo demonstrates defendants lied under oath to cover up plaintiff’s claim and requests a court

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hearing to be set as soon as possible. (Id. at 2.)

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1. Exhaustion Issue

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The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be

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brought with respect to prison conditions under section 1983 . . . , or any other Federal law, by a

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prisoner confined in any jail, prison, or other correctional facility until such administrative

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remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “[T]he PLRA’s exhaustion

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requirement applies to all inmate suits about prison life, whether they involve general

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circumstances or particular episodes, and whether they allege excessive force or some other

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wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). The PLRA’s exhaustion requirement is an

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affirmative defense, meaning the “defendants must plead and prove” failure to exhaust. Fordley

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v. Lizarraga, 18 F.4th 344, 350-51 (9th Cir. 2021) (citation omitted).

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Plaintiff’s reference to defendants filing a “complained [sic]” is unclear. (ECF No. 39 at

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1.) However, the Court’s docket does not reflect any filing by defendants since the October 3,

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2024 settlement conference. Moreover, plaintiff’s submission of evidence to rebut an exhaustion

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claim is premature. Defendants must first file a motion raising such allegation; then plaintiff is

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entitled to file an opposition and evidence in support of such opposition. Local Rule 230(l).

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Defendants have not filed any such motion. And, in any event, the parties were previously

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informed that all motions are heard on the papers without the need for a hearing, unless otherwise

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ordered by the Court. (ECF No. 38 ¶ 7.) Plaintiff’s motion (ECF No. 39) is denied.

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2.

Video Footage

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To the extent plaintiff seeks video footage, his motion is premature because he has not

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demonstrated that he first sought the video footage from defendants through discovery. It is

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plaintiff’s obligation to marshal the evidence in support of his claims using the discovery

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mechanisms provided by the Federal Rules of Civil Procedure. For example, plaintiff may seek

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such video footage by propounding a request for production of documents and other tangible

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things under Rule 34 of the Federal Rules of Civil Procedure. Plaintiff is informed that court
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permission is not necessary for discovery requests and that neither discovery requests served on

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an opposing party nor that party’s responses should be filed until such time as a party becomes

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dissatisfied with a response and seeks relief from the court pursuant to the Federal Rules of Civil

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Procedure. Discovery requests between the parties shall not be filed with the court unless, and

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until, they are at issue. Plaintiff’s motion regarding video footage is denied as premature. (ECF

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No. 39.)

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II.

PUTATIVE MOTION FOR DISCOVERY

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On November 21, 2024, plaintiff filed a document styled, “Motion for Discovery

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Reasons.” (ECF No. 40.) In this second motion, plaintiff alleges that defendants’ counsel “is not

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properly checking these correctional officers’ testimony or requesting” video footage which

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“should be considered.” (Id. at 1.) Plaintiff asks the Court to help him solve the “truthfulness and

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get justice,” and claims he is being taken advantage of due to his disability. (Id. at 1-2.) Plaintiff

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appends a document entitled “California Department of Corrections and Rehabilitation Body-

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Worn Camera Technology Frequently Asked Questions (FAQs),” as well as a July 31, 2023

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memo from the litigation office at California State Prison, Corcoran to plaintiff. (Id. at 3-5, 7.) 1

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Plaintiff’s motion is not properly construed as a motion for discovery. Plaintiff identifies

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no discovery request or response that he contends is insufficient. As discussed above, if plaintiff

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wishes to view pertinent video footage of the incidents herein, he must first propound a discovery

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request to defendants. Fed. R. Civ. P. 34. For these reasons, plaintiff’s motion is denied. (Id.)

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III.

MOTION REGARDING EXHAUSTION
On November 21, 2024, plaintiff filed a third motion, styled “Motion,” in which he again

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purports to provide documents demonstrating he exhausted his administrative remedies. (ECF

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No. 41.) Plaintiff reiterates that defense counsel is not investigating the correctional officers’

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stories, and claims he is still trying to settle this case. (Id. at 2.) Plaintiff also writes “unwilling

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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.
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to produce camera footage which Folsom facility is fully secured with camera[s] for issue[s] like

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this,” but plaintiff does not identify who was unwilling, or in what context such a request was

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made. (Id.) Plaintiff is cautioned that although prisons use security cameras, there are many

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issues that may preclude production of video footage, for example, camera placement, whether a

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particular camera was operational, as well as whether particular video footage has been retained.

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This is why it is important for plaintiff to propound a discovery request to defendants to obtain

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pertinent video footage, because if such footage did not exist or no longer exists, it could not be

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produced. Because there is no pending motion concerning the exhaustion of administrative

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remedies, as also described above, plaintiff’s submission of documentary evidence is premature,

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and his motion is denied. 2

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IV.

PREMATURE SUBMISSION OF EXHIBITS

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In his third motion, plaintiff appears to ask the Court to add his documents to this action.

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(ECF No. 41 at 2.) Plaintiff is advised that the Court is not a repository for the parties’ evidence.

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As explained above, if defendants file a motion for summary judgment alleging plaintiff failed to

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exhaust administrative remedies, plaintiff will have 21 days to file an opposition accompanied by

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his documentary evidence in support of his opposition.

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V.

CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motions (ECF Nos. 39, 40, 41)

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are denied without prejudice. The documents appended to such motions are placed in the court

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file and disregarded. Plaintiff is cautioned that further filing of discovery motions or requests,

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except as required by rule of court, may result in an order of sanctions, including, but not limited

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to, a recommendation that this action be dismissed.

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Dated: November 25, 2024

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/1/coll1600.411

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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.
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