Ochotorena v. Adams et al
Filing
118
ORDER GRANTING IN PART 111 Plaintiff's Motion to Compel, signed by Magistrate Judge Dennis L. Beck on 11/16/2011. CDCR is to produce the documents listed in this order within thirty (30) days. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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RICHARD A. OCHOTORENA,
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CASE NO. 1:05-CV-01524-LJO-DLB PC
Plaintiff,
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ORDER GRANTING IN PART PLAINTIFF’S
MOTION TO COMPEL
v.
(DOC. 111)
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DERRAL G. ADAMS, et al.,
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CDCR’S RESPONSE DUE WITHIN THIRTY
(30) DAYS
Defendants.
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/
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Plaintiff Richard A. Ochotorena (“Plaintiff”) is a prisoner in the custody of the California
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Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in
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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding
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against Defendants Adams, Kalkis, Reynoso, Curtiss, Duncan, Fambrough, Lane, and Rodriquez.
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Pending before the Court is Plaintiff’s objections to non-party CDCR’s production of documents,
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filed July 11, 2011. Doc. 111. The Court construes Plaintiff’s objections as a motion to compel
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pursuant to Federal Rule of Civil Procedure 45. On August 23, 2011, the Court ordered non-
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party CDCR to submit documents with the Court for in camera review. Doc. 117. Having
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reviewed the documents, the Court issues the following order.
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I.
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Motion To Compel
On May 12, 2011, the Court granted in part Plaintiff’s subpoena duces tecum for
production of documents on CDCR. CDCR or the California Substance Abuse Treatment
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Facility (“SATF”) was ordered to produce Operational Procedure 315 as it existed on or around
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September 8, 2003, and to produce training materials that related to photographing or otherwise
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documenting a crime scene. Order, Doc. 103. CDCR filed a motion for protective order, which
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was granted on June 15, 2011. CDCR subsequently produced a redacted copy of Operational
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Procedure 315, and a redacted copy of the instructional Crime Scene and Evidence Preservation
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training materials.
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Plaintiff moves the Court to order CDCR to produce unredacted, responsive documents.
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Plaintiff contends that the documents produced by CDCR were overly redacted and thus non-
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responsive to Plaintiff’s subpoena duces tecum. CDCR contends that it responded fully. CDCR
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contends that producing further information would jeopardize institutional security.
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A.
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Plaintiff requested Operational Procedure 315 (“OP 315”), which governed Exercise Yard
Operational Procedure 315
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Video Monitoring for SATF at the time of the incident in question. This version of OP 315 was
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distributed on July 18, 2002. The incident in question occurred on September 8, 2003. Plaintiff
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contends that Defendant Curtiss, who participated in the alleged excessive force, was also
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responsible for the retention of any videotape surveillance regarding the incident as the incident
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commander, and failed to do so.
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OP 315 contains eight sections, including I. Plan Title and Number; II. Purpose and
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Objectives; III. References; IV. Approval and Review; V. Responsibility; VI. Methods; VII.
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Incident/Unusual Occurrence; and VIII. General Instructions.1 Plaintiff’s contention concerned
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section VII, titled “Incident/Unusual Occurrence,” which explained the roles of complex/control
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officers and the facility sergeant/incident commander regarding video camera operation during an
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incident.
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The Court had ordered production of OP 315 insofar as it relates to a description of the
purpose of the Operational Procedure, and the responsibilities of the incident commander or
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The Court notes that General Instructions was labeled as VII in OP 315, which appears
to have been an error.
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other supervisory prison officials regarding retention of any videotape that captures an incident or
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unusual occurrence. In CDCR’s first production of this document, only sections I through V
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were unredacted. However, section VII is responsive to Plaintiff’s request. The Court finds that
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OP 315 in its entirety does not contain materials of such sensitive nature that it requires
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redaction. The redacted information included the type of tape used, how often the tape can be
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used, and which posted complex/central control officers (by post number) would review the tape,
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none of which the Court finds would qualify as particularly sensitive information. Thus, the
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Court will grant Plaintiff’s motion as to OP 315, subject to a protective order limiting the time,
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place, and manner that Plaintiff may view OP 315. The Court will order that the litigation
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coordinator of the prison at which Plaintiff is currently housed to retain custody of the document,
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and to arrange for Plaintiff to be able to examine the document in a reasonable manner for
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purposes of this litigation.
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B.
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Plaintiff requested the training materials pertaining to crime scene and evidence
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preservation. Plaintiff contends that an officer involved in the alleged excessive force against
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Plaintiff, Defendant Kalkis, was also involved in preserving evidence and the crime scene,
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contrary to CDCR procedure. The Court had ordered production of the lesson plan insofar as it
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provides a description of the purpose of the lesson and who is authorized to participate in crime
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scene and evidence preservation. CDCR in its first production of this document produced a
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description of the lesson plan. In response to the Court’s order to produce documents for in
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camera review, CDCR produced the lesson plan regarding crime scene and evidence
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preservation, approved August 14, 2003. CDCR also produced a content description, work
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exercises, and power point slides related to the lesson plan.
Crime Scene And Evidence Preservation
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The lesson plan includes eight sections: A. Introduction and Definitions, including
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definitions of categories of evidence; B. Identify Items To Preserve/Collect As Evidence, which
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provides a list of items that may be evidence; C. Recognize The Four Functions Of Evidence,
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which describes what evidence is used for generally; D. Preserving The Crime Scene, which
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defines the crime scene and the actions to be taken by correctional officers at the scene; E. Obtain
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Urinalysis For Evidence (Seize Evidence), which describes taking urine samples; F. Describe
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Crime Scene Search Techniques, which explains methods of searching; G. Preserve Evidence,
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which defines preservation of evidence and the steps taken; and H. Summary.
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Of these eight sections, section D, Preserving The Crime Scene, pages 14 to 22, and
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section G, Preserve Evidence, pages 32 to 40, are responsive to Plaintiff’s discovery request.
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Sections D and G describe what correctional officers should do concerning crime scenes and
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evidence preservation. This information is not of such a privileged nature that redaction is
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necessary for the sections. The Court finds the practice exercises and the other sections
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unnecessary for purposes of Plaintiff’s discovery request, and CDCR will not need to produce
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them.
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Sections D and G are reasonably calculated to lead to the discovery of admissible
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evidence. The remainder of the documents are unnecessary and need not be produced for
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Plaintiff’s inspection. The Court will grant Plaintiff’s motion as to the lesson plan regarding
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Crime Scene and Evidence Preservation as stated herein, subject to a protective order limiting the
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time, place, and manner that Plaintiff may view the lesson plan. The Court will order that the
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litigation coordinator of the prison at which Plaintiff is currently housed to retain custody of the
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document, and to arrange for Plaintiff to be able to examine the document in a reasonable manner
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for purposes of this litigation.
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II.
Conclusion And Order
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Based on the foregoing, it is HEREBY ORDERED that:
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1.
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GRANTED in part;
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Plaintiff’s objections, filed July 11, 2011 and construed as a motion to compel, are
CDCR is to produce for Plaintiff Operational Procedure 315, distributed July 18,
2002, in its entirety;
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CDCR is to produce for Plaintiff the lesson plan regarding Crime Scene and
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Evidence Preservation, approved August 14, 2003, sections D and G only
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(“Preserving The Crime Scene” and “Preserve Evidence”), excluding practice
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exercises;
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days from the date of service of this order; and
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CDCR is to produce these documents for Plaintiff’s inspection within thirty (30)
The Court will issue a protective order, delineating the time, place, and manner in
which Plaintiff may inspect the documents mentioned herein.
IT IS SO ORDERED.
Dated:
3b142a
November 16, 2011
/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE
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