Wilson v. Segovia et al

Filing 35

ORDER Denying Plaintiff's Motion to Take Depositions of Plaintiff's Witnesses and Motion for Pitchess Review (ECF No. 34 ). Signed by Magistrate Judge Mitchell D. Dembin on 10/13/2020. (All non-registered users served via U.S. Mail Service)(jdt)

Case 3:19-cv-02254-LAB-MDD Document 35 Filed 10/13/20 PageID.216 Page 1 of 3

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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LUCIOUS WILSON,

Case No.: 19cv2254-LAB-MDD
Plaintiff,

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v.

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SGT. SEGOVIA, et al.,

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Defendants.

ORDER DENYING PLAINTIFF'S
MOTION TO TAKE DEPOSITIONS
OF PLAINTIFF'S WITNESSES
AND MOTION FOR PITCHESS
REVIEW
[ECF No. 34]

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On October 7, 2020, Plaintiff Lucious Wilson (“Plaintiff”), a state

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prisoner proceeding pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983, filed a motion to depose certain witnesses and

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for Pitchess review of Defendants’ personnel files. (ECF No. 34). For the

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reasons stated herein, the Court DENIES Plaintiff’s motions.

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As an initial matter, Plaintiff does not need the Court’s permission to

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depose non-party witnesses. Fed. R. Civ. P. 30(a). In order to secure the

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appearance of non-party witnesses at their depositions, the witnesses must

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be personally served with subpoenas that are accompanied by money orders

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for witness fees and, if applicable, travel expenses.1 Fed. R. Civ. P. 45; 28

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U.S.C. § 1821. However, the discovery completion deadline in this case was

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October 12, 2020.2 (ECF No. 25 at 2). In the scheduling order, the Court

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advised the parties that “‘[c]ompleted’ means that interrogatories, requests

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for production, and other discovery requests must be served at least thirty

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(30) days prior to the established cutoff date so that responses thereto will be

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due on or before the cutoff date. All subpoenas issued for discovery must be

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returnable on or before the discovery cutoff date” (Id.). Plaintiff signed the

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instant motions on September 16, 2020. As a result, even if Plaintiff had

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issued subpoenas on that date, they would be untimely.
Plaintiff’s Pitchess motion is also untimely. Plaintiff seeks the

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disclosure of “all incidents of excessive force or any other acts of violence” in

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Defendants’ personnel files. (ECF No. 34 at 9). Pitchess v. Super. Ct. of L.A.

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Co. (Echeveria), “established that a criminal defendant could ‘compel

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discovery’ of certain relevant information in the personnel files of police

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officers by making ‘general allegations which establish some cause for

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discovery’ of that information and by showing how it would support a defense

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to the charge against him.” Warrick v. Superior Court, 35 Cal. 4th 1011,

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1018-19 (Cal. 2005). “In 1978, the California Legislature codified the holding

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. . . by enacting . . . Evidence Code sections 1043 through 1045. California’s

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Evidence Code § 1043 now provides a procedure for discovery of peace officer

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personnel records in state judicial proceedings, but § 1043 is not binding upon

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The deposing party must also bear the costs of recording the depositions, bear the costs
of transcribing the depositions if the party intends to use them as evidence in a
proceeding, and must arrange for the depositions to be conducted before an officer.
2 Discovery is extended until October 31, 2020 for the sole purpose of Defendants obtaining
Plaintiff’s deposition. (ECF No. 25 at 2).
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federal court.” Jackson v. Cty. of Sacramento, 175 F.R.D. 653, 655 (E.D. Cal.

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1997) (internal citations omitted).
This is a federal civil rights action under 42 U.S.C. § 1983 to which

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the Federal Rules of Civil Procedure apply and Plaintiff’s Pitchess motion

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under California law is not binding on this court.3 To the extent that

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Plaintiff seeks discovery of Defendants’ personnel files in this case, he should

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have referred to Federal Rule of Civil Procedure 34(a), which allows a party

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to request the production of any document within the scope of Rule 26(b).

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However, as indicated previously, even if Plaintiff had appropriately

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propounded discovery requests upon Defendants on September 16, 2020, they

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would be untimely. (See ECF No. 25 at 2).

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Accordingly, the Court DENIES Plaintiff’s motions. (ECF No. 34).

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IT IS SO ORDERED.

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Dated: October 13, 2020

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The motion presently before the Court cannot be construed as a motion to compel.
Plaintiff has not demonstrated that he made a request to Defendants for production of
these documents. Also, Plaintiff does not clearly describe his attempts to obtain the
relevant documents directly from Defendants through a proper discovery request and does
not present any arguments that demonstrate how Defendants’ objections to Plaintiff’s
requests were unjustified.
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19cv2254-LAB-MDD