Stevenson v. Blake et al

Filing 64

ORDER denying plaintiff's 60 Motion for Sanctions. Signed by Magistrate Judge William V. Gallo on 1/16/13. (All non-registered users served via U.S. Mail Service)(kaj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GENGHIS KHAN ALI STEVENSON,

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Plaintiff,

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v.

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GREGORY BLAKE,

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Defendant.

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Civil No. 11-0103-LAB(WVG)
ORDER DENYING PLAINTIFF’S
MOTION FOR SANCTIONS
(DOC. NO. 60)

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On December 17, 2012, Plaintiff filed a Motion for Sanctions

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(“Motion”). On January 7, 2013, Defendant filed an Opposition to the

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Motion. On January 14, 2013, the Court held a hearing on the Motion.

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The Court, having reviewed the moving and opposition papers of

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Plaintiff and Defendant, and having heard oral argument, and GOOD

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CAUSE APPEARING, HEREBY DENIES Plaintiff’s Motion.

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On September 23, 2011, Plaintiff served on Defendant a

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Request for Production of Documents seeking, inter alia, all written

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reports and statements about the incident on March 13, 2007 between

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8:00 and 9:00 AM1/ made by Defendant Blake and all written reports

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and statements made by Defendant Blake in regard to Staff Complaint,

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Appeal

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(“Calipatria”).2/

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Log.

No.

CAL-4-07-00544

at

Calipatria

State

Prison

On October 26, 2011, Defendant responded that there were no
responsive written reports or statements by Defendant Blake.

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On January 18, 2012, Plaintiff filed a Motion to Compel

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Further Responses to the above-noted Requests for Production of

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Documents. Defendant filed an Opposition to the Motion to Compel

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stating that he could not provide further responses because there

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were no documents responsive to Plaintiff’s Requests for Production

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of Documents. Based on Defendant’s Opposition, on January 23, 2012,

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the Court denied Plaintiff’s Motion to Compel.

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On August 10, 2012, the District Judge assigned to this case
affirmed in part the Order of January 23, 2012.

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On August 30, 2012, Defendant informed the Court (via the

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Declaration of G. Nunez, a Correctional Counselor at Calipatria),

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that there existed a “Confidential Supplement To Appeal: ‘Appeal

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Inquiry,’ dated May 14, 2007 that is responsive to Plaintiff’s

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Requests for Production of Documents. However, since the document

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was confidential, and producing it to Plaintiff could endanger

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persons employed at Calipatria, imprisoned at Calipatria, or the

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prison itself, he could not produce the document to Plaintiff, but

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could produce it to the Court for in camera review.

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1/

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The incident to which the Request for Production of Documents refers is
the subject of this lawsuit.
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The document production requests were Plaintiff’s Requests for Production
of Documents, nos. 1 and 2.

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On September 24, 2012, the Court ordered that the above-noted

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document be produced to the Court for in camera review. On September

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25, 2012, Defendant lodged the document with the Court.

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On October 3, 2012, the Court ordered Defendant to produce to

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Plaintiff the “Confidential Supplement To Appeal: ‘Appeal Inquiry,’

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dated May 14, 2007 and the Memorandum of T. Armstrong, dated March

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13, 2007.3/

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On

December

20,

2012,

Plaintiff

filed

the

Motion

for

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Sanctions that is now before the Court. In the Motion, Plaintiff

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insisted that Defendant had failed to produce other documents that

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were responsive to his Requests for Production of Documents that he

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knew existed, but that Defendant told him and the Court did not

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exist.

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On

January

7,

2013,

Defendant

filed

an

Opposition

to

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Plaintiff’s Motion. The Declaration of M. Ormand, inter alia, was

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submitted in support of Defendant’s Opposition. Attached to Ormand’s

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Declaration were six documents that were responsive to Plaintiff’s

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Requests for Production of Documents, that had not been previously

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produced to Plaintiff. The six documents include one two-page

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document

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Defendant claimed did not exist.

that

Plaintiff

insisted

existed

all

along,

but

that

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At the January 14, 2013 hearing, Defendant’s counsel, Susan

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Coleman, explained that when she receives a Request for Production

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of Documents, she customarily requests the sought documents from the

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litigation coordinator at the prison where the incident took place.

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Also, she provides the Request for Production of Documents to the

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3/

The Memorandum of T. Armstrong was attached to
Supplement To Appeal: ‘Appeal Inquiry,’ dated May 14, 2007.

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the

“Confidential

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litigation coordinator. She stated that she does not personally

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search for the requested documents at the prison. Rather, she relies

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on

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requested documents. Thereafter, the litigation coordinator provides

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the searched-for, collected documents to her.

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the

litigation

Also,

at

coordinator

the

hearing,

to

search

Gabriela

for

Nunez,

and

the

collect

the

Litigation

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Coordinator at Calipatria at the time Plaintiff served the Requests

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for Production of Documents, explained the process she used for

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obtaining requested documents. From Ms. Nunez’ explanation, it

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became apparent to the Court that either a mistake was made in

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requesting the documents sought by Plaintiff, or there was a simple

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lack of diligence in assuring that all documents responsive to

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Plaintiff’s

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produced to Plaintiff, or to the Court for in camera review.

Requests

for

Production

of

Documents

were

either

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Therefore, the Court concludes that Defendant’s failure to

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timely produce all of the documents responsive to Plaintiff’s

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Requests for Production of Documents was not purposeful nor an

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intentional effort to avoid his discovery obligations nor to gain a

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tactical advantage over Plaintiff. As a result, Plaintiff’s Motion

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for Sanctions is DENIED.

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However, the Court has grave concerns that Defendant did not

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act with due diligence in searching for and producing the documents

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requested by Plaintiff. Instead, Defendant took a cavalier approach

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to searching for and producing the requested documents, despite the

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fact that Plaintiff had represented to Defendant, and to the Court,

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on several occasions, that certain documents he knew existed, had

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not been produced to him. In fact, Plaintiff was correct in his

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assertions. Moreover, the documents he insisted existed would have

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never been produced to him had he not filed the Motion for Sanc-

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tions, which apparently caused Defendant to engage in a further

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search for responsive documents.

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Defendant and the authorities at Calipatria are warned that

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the Court expects that they will act with due diligence in searching

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for and producing requested documents. This means that a search must

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be conducted in all places in which responsive documents may exist.

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A person who conducts the search for documents must not simply

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request documents from an office which he/she believes responsive

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documents exist. Rather, the search must include all places where

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the requested documents may be found. If a question exists as to

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whether a particular document is responsive to a document production

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request, it should be referred to the counsel representing the

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defendant(s) in the case. A decision whether to produce, or not

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produce, a document should not be made by a litigation coordinator,

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an appeal administrator, or any other person employed in the

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correctional institution.

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IT IS SO ORDERED.

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DATED:

January 16, 2013

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Hon. William V. Gallo
U.S. Magistrate Judge

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