Hammler v. Hernandez et al

Filing 46

ORDER Granting In Part and Denying In Part Plaintiff's Motion to Compel Discovery Responses [ECF. Nos. 41 , 44 . Signed by Magistrate Judge Mitchell D. Dembin on 1/8/2020.(All non-registered users served via U.S. Mail Service)(anh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ALLEN HAMMLER,

Case No.: 18cv259-CAB-MDD
Plaintiff,

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v.

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J. HERNANDEZ, Correctional
Officer, and A. MAGALLANES,
Correctional Officer,

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Defendants.

ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF'S
MOTION TO COMPEL
DISCOVERY RESPONSES
[ECF Nos. 41, 44]

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I.

INTRODUCTION

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Plaintiff Allen Hammler (“Plaintiff”), a state prisoner proceeding pro se

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and in forma pauperis, initiated this action against Defendants J. Hernandez

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and A. Magallanes (collectively, “Defendants”) by filing a Complaint pursuant

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to 42 U.S.C. § 1983. (ECF Nos. 1, 25). On August 12, 2019, Plaintiff served

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requests for admissions on Defendant Magallanes. (ECF No. 37, Exhibit A).

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On September 4, 2019, Plaintiff served requests for production of documents

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on Defendants. (Id.). Defendants objected to several of Plaintiff’s requests on

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the grounds that they were “vague, ambiguous, and overbroad.” (Id.).

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On November 7, 2019, nunc pro tunc, Plaintiff filed a motion to compel
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Defendants to meet and confer on Defendants’ objections to his requests for

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admissions and requests for production of documents. (ECF No. 37). The

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Court ordered the parties to meet and confer and file status reports following

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the meeting to inform the Court whether the dispute has been resolved, and

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if not, which issues remain. (ECF No. 40).

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On December 9, 2019, the parties met and conferred telephonically.

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(ECF No. 41 at 1). As a result of the meet and confer, the parties were able to

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resolve all but four issues: Plaintiff’s requests for production numbers 2, 3, 6,

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and 8. (Id.; ECF No. 44). For the reasons stated herein, the Court GRANTS

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IN PART AND DENIES IN PART Plaintiff’s motion to compel as presented

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in the parties’ status reports. (ECF Nos. 41, 44).

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II.

LEGAL STANDARD

The Federal Rules of Civil Procedure authorize parties to obtain

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discovery of “any nonprivileged matter that is relevant to any party’s claim or

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defense and proportional to the needs of the case . . . .” Fed. R. Civ. P.

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26(b)(1). “Information within the scope of discovery need not be admissible in

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evidence to be discoverable.” Id. District Courts have broad discretion to

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limit discovery where the discovery sought is “unreasonably cumulative or

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duplicative, or can be obtained from some other source that is more

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convenient, less burdensome, or less expensive.” Fed. R. Civ. P. 26(b)(2)(C).

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A party may request the production of any document within the scope of

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Rule 26(b). Fed. R. Civ. P. 34(a). “For each item or category, the response

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must either state that inspection and related activities will be permitted as

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requested or state an objection to the request, including the reasons.” Fed. R.

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Civ. P. 34(b)(2)(B). If the responding party chooses to produce responsive

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information, rather than allow for inspection, the production must be

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completed no later than the time specified in the request or another
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reasonable time specified in the response. Id. An objection must state

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whether any responsive materials are being withheld on the basis of that

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objection. Fed. R. Civ. P. 34(b)(2)(C). An objection to part of a request must

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specify the part and permit inspection or production of the rest. Id. The

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responding party is responsible for all items in “the responding party’s

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possession, custody, or control.” Fed. R. Civ. P. 34(a)(1). Actual possession,

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custody or control is not required. Rather, “[a] party may be ordered to

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produce a document in the possession of a non-party entity if that party has a

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legal right to obtain the document or has control over the entity who is in

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possession of the document.” Soto v. City of Concord, 162 F.R.D. 603, 620

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(N.D. Cal. 1995).
III. DISCUSSION

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1.

Requests for Production Numbers 2 and 3

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Plaintiff requested Defendants produce “[s]till shots from each and

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every one of the surveillance camera(s) mounted in and ar[]ound Building B-6

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where the events in controversy took place, i.e., photo(s) from each of the

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camera(s), one single shot” and “[m]aintenance reports relevant to teach and

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every one of the surveillance camera(s) mounted in and around Building B-6

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where the events in controversy took place stating which cameras were

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functional on the date of 11,15,2016 and which were not.” (ECF No. 37 at 18-

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19). As to both requests, Defendants responded that “[a]fter a diligent search

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and reasonable inquiry, no responsive documents or tangible things were

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located.” (ECF No. 39-1 at 6-8). A party’s statement that, after a reasonable

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and diligent search, there exist no responsive documents to a production

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request is an acceptable reply. See Uribe v. McKesson, No. 08cv1285 DMS

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(NLS), 2010 WL 892093, at *2-3 (E.D. Cal. Mar. 9, 2010). Plaintiff states

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that he told Defense counsel that the still shots are available if she requests
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them from CDCR, but she responded that “it would be to create evidence

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which the Defense has no obligation to do.” (ECF No. 44 at 2). If responsive

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documents do exist, but the responsive party claims lack of possession,

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custody or control, the party must state so. Ochotorena v. Adams, No. 1:05-

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cv-01524-LJO-DLB (PC), 2010 WL 1035774, at *3-4 (E.D. Cal. Mar. 19, 2010).

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Based on Defendants’ supplemental responses, it does not appear that any

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documents were withheld. (See ECF No. 39-1 at 6-8). Accordingly, Plaintiff’s

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motion to compel production of still shots and maintenance reports as

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presented in his status report is DENIED.

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2.

Request for Production Number 6
In his sixth request for production of documents, Plaintiff requests “[a]

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list of all Prisoner/Patient(s) who attended the Mental Health Group with

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Plaintiff Hammler on date of 11,15,2016.” (ECF No. 37 at 20). Defendants

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objected on the grounds that the request “seeks information protected by

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third-parties’ right to privacy,” that the information is irrelevant and

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disproportionate to the needs of the case. (Id.). The Court may limit the

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scope of discovery to protect the privacy interests of litigants and third

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parties. See Fed. R. Civ. P. 26(c); Seattle Times Co. v. Rhinehart, 467 U.S. 20,

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34-35 (1984). These inmates, as third parties, have the right to have their

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privacy protected. That right is not absolute and may be overcome by a

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strong showing of relevance. Plaintiff contends these inmates may have

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heard parties to this action “leveling threats during group.”1 (ECF No. 44 at

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5). Plaintiff has only alleged that these inmates may have heard a threat

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Plaintiff’s First Amended Complaint alleges that Defendant Hernandez pushed Plaintiff
off of a stool at Mental Health Group on November 15, 2016 and told Plaintiff “I’m gonna
escort you to yard and we’ll see if you’ll be talkin’ all that shit . . . just go to yard and don’t
bitch out.” (ECF No. 25 at 4-5).
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during Mental Health Group. That is not enough. In any event, Plaintiff

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does have evidence to support his claim because he has presented another

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inmate’s declaration regarding the alleged threats. (See ECF No. 25 at 5). As

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a result, the Court DENIES Plaintiff’s motion to compel the names of the

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inmates who attended Mental Health Group on November 15, 2016.

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3.

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Request for Production Number 8
Finally, Plaintiff seeks “[a]ll cell search rec[eipts] engendered on the

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date of 11,15,2016 and date of 11,28,2016.” (ECF No. 7 at 21). The parties

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apparently did not discuss this request during the telephonic meet and

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confer. (See ECF Nos. 41, 44). Plaintiff alleges in the First Amended

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Complaint that correctional officers Hugh and Barrientos searched his cell on

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November 28, 2016. (ECF No. 25 at 11-12). Plaintiff alleges his cell was

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searched in retaliation for reporting Defendant Hernandez’s behavior. (Id. at

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11). However, Plaintiff does not allege his cell was searched on November 15,

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2016. (Id. at 4-11). Defendants argue this information is irrelevant because

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Defendants did not search Plaintiff’s cell. Because Plaintiff does not allege in

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his First Amended Complaint that his cell was searched on November 15,

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2016, the Court agrees with Defendants that any cell search receipt on that

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date is irrelevant. However, because Plaintiff alleges that his cell was

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searched on November 28, 2016 in retaliation for reporting Defendant

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Hernandez’s behavior, a cell search receipt is discoverable. Accordingly,

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Defendants must produce to Plaintiff a cell search receipt for a search of

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Plaintiff’s cell conducted on November 28, 2016 to the extent that it exists.

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IV.

CONCLUSION

Based on the foregoing, the Court GRANTS IN PART AND DENIES

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IN PART Plaintiff’s motion to compel as presented in the parties’ status

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reports. (ECF Nos. 41, 44). Specifically, Plaintiff’s motion to compel requests
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for production numbers 2, 3, and 6 are DENIED, and Plaintiff’s motion to

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compel request for production number 8 is GRANTED IN PART. To the

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extent such documents exist, Defendants must produce to Plaintiff a cell

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search receipt for a search of Plaintiff’s cell conducted on November 28, 2016

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on or before January 22, 2020.

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Dated: January 8, 2020

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