Thompson v. Yates
Filing
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ORDER, Denying 43 Motion to Appoint Counsel ; Denying 44 Motion ; Granting in Part and Denying in part 45 Motion to Compel; Granting in Part and Denying in Part 47 Motion to Compel; Denying 50 Motion, signed by District Judge Raner Collins on 11/29/11. (Gonzalez, R)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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Raft L. Thompson ,
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Plaintiff,
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vs.
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James A Yates; Timothy Lockwood,
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Defendants.
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1:06-cv-00763-RCC
ORDER
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Plaintiff Raft Thompson, who is confined in the Pleasant Valley State Prison (PVSP)
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in Coalinga, California, has filed a pro se civil rights First Amended Complaint pursuant to
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42 U.S.C. § 1983. (Doc. 18). Plaintiff’s remaining claim is that Defendants violated his
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rights to equal protection because they intentionally treated him differently from other
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inmates convicted of similar crimes when they denied him visits with his minor son. (Doc.
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18). Pending before the Court now are Plaintiff’s Motion to Appoint Counsel (Doc. 43),
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Motion to Bring Action for Declaratory and Injunctive Relief (Doc. 44), Motion to Compel
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Production of Documents (Doc. 45), and Objection to Answers and Motion to Compel (Doc.
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47), as well as Defendants’ Request for Notice to Plaintiff of Requirements for Opposing
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Motion for Summary Judgment (Doc. 50).
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I.
Plaintiff’s Motion to Appoint Counsel
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Appointment of counsel in a civil rights case is required only when exceptional
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circumstances are present. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (citing
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Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). In determining whether to
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appoint counsel, the court should consider the likelihood of success on the merits, and the
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ability of plaintiff to articulate his claims in view of their complexity. Wood v. Housewright,
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900 F.2d 1332, 1335 (9th Cir. 1990). After reviewing the file, the Court determines that this
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case does not present exceptional circumstances requiring the appointment of counsel.
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Therefore, Plaintiff's motion will be denied.
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II. Plaintiff’s Motion to Bring Action for Declaratory and Injunctive Relief
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Plaintiff seeks a preliminary injunction and asks the Court “to grant injunctive and
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declaratory relief, compelling the Secretary of Corrections to bar [Regulation 3173.1(b)] until
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the Court renders a final decision.” (Doc. 44 at 3). To obtain a preliminary injunction, the
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moving party must show “that he is likely to succeed on the merits, that he is likely to suffer
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irreparable harm in the absence of preliminary relief, that the balance of the equities tips in
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his favor, and that an injunction is in the public interest.” Winter v. Natural Resources
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Defense Counsel, Inc., 129 S.Ct. 365, 374 (2008). The moving party has the burden of proof
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on each element of the test. Environmental Council of Sacramento v. Slater, 184 F.Supp.2d
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1016, 1027 (E.D.Cal. 2000). Plaintiff here has not met his burden. Therefore, Plaintiff’s
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motion will be denied.
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III. Plaintiff’s Motions to Compel
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A. Production of Documents
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The production of documents may be requested under FED.R.CIV.P. 34. A party must
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produce all discoverable documents responsive to a request that are within the party’s
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possession, custody, or control. Kissinger v. Reporters Committee for Freedom of the Press,
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445 U.S. 136, 166 (1980). Documents are deemed to be within the possession, custody, or
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control of a party if the party has the legal right to obtain documents on demand. United
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States v. Int’l Union of Petroleum & Indus. Workers, 870 F.2d 1540, 1452 (9th Cir. 1989).
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Plaintiff seeks to compel production of Inmate Vaughn Jacobs’ “visiting records of visits
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with his minor children” and his own visiting record. (Doc. 45). Defendants respond that
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they do not have control of the requested documents because (1) they are not the custodian
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of records for the state prison, and (2) they would have to seek Inmate Jacobs’ permission
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as well as the custodian of records permission to obtain the documents. (Doc. 49). In
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addition, Defendants argue they “engaged in a reasonable and diligent search for any
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responsive information, and were unable to locate any.” (Id.).
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Defendants are in control of Plaintiff’s visitation records because (1) the existence of a
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custodian of records does not deprive them of control and (2) by making this request for
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production, Plaintiff has authorized release of his records. Defendants are also in control of
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Inmate Jacobs’ visitation records because the existence of a custodian of records does not
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deprive them of control and (2) the Court can require disclosure of those records without the
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his authorization. See CAL. COD. REGS. tit. 15, § 3370 (2011) (an inmate may not have
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access to another inmate’s records “[e]xcept by means of a valid authorization, subpoena, or
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court order...”). The Court notes that while Defendants avow they have made a reasonable
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and diligent search for documents responsive to Plaintiff’s requests for visitation records, it
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appears this search did not include submitting requests to the custodian of records.
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Therefore, the Court will require Defendants to search again, produce any documents
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pertaining to Plaintiff’s records to him, and produce any documents pertaining to the other
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inmate to the Court for in camera review.
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Plaintiff also seeks to compel production of any documents related to the “[n]umber of
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innocent juveniles killed by gang members.” (Doc. 45). Defendants argue they do not have
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any responsive documents in their possession. (Doc. 49). The Court has no reason to believe
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otherwise.
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Accordingly, the Court will grant Plaintiff’s motion to compel as to his requests for
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production for inmate visitation records and deny the motion as to his request for the number
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of juveniles killed by gang members.
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B. Requests of Admission
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A party may serve a written request to admit facts, the application of law to fact, or
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opinions about either, and the genuineness of any described document. FED.R.CIV.P.
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36(a)(1). The responding party may either admit, specifically deny, or state in detail why the
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responding party cannot admit or deny. FED.R.CIV.P. 36(a)(4). If the responding party
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asserts lack of knowledge or information as the reason it cannot admit or deny, it must avow
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that a reasonable inquiry has been made and that the information it knows or can readily
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obtain is insufficient to allow it to admit or deny. Id. If the Court determines that an answer
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is insufficient, it can either deem the matter admitted or order an amended answer.
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FED.R.CIV.P. 36(a)(6).
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Plaintiff here objects to Defendants’ answers to his Requests for Admission 1-70. (Doc.
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47). As to each request, Defendants either admitted, denied, or stated they possessed
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insufficient information to admit or deny the matter. (Id.). As to those matters specifically
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admitted or denied, the Court finds Defendants’ answers are sufficient. As to those matters
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specifically objected to, the Court finds Defendants’ answers are also sufficient. The Court
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declines to consider objections raised in boilerplate language. As to those matters neither
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admitted nor denied because Defendants claim to have insufficient knowledge, the Court
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finds the answers are insufficient because Defendants did not state that they had undertaken
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a reasonable inquiry into each matter in their response. Rather than sanction Defendants by
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deeming the matters admitted, the Court will require Defendants to respond further. The
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Court reminds Defendants that in conducting a reasonable inquiry into these Requests for
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Admission, Defendants are required to make inquiries of the custodian of records for PVSP.
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See Frontier-Kemper Constructors, Inc. v. Elk Run Coal Co., Inc., 246 F.R.D. 522, 531
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(S.D.W.Va. 2007); A. Farber & Partners, Inc. v. Garber, 237 F.R.D. 250, 253-55 (C.D.Cal.
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2006).
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IV. Defendants’ Request for Notice to Plaintiff of Requirements for Opposing Motion
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for Summary Judgment
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Defendants request the Court give the notice required by Rand v. Rowland, 154 F.3d
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952, 959-60 (9th Cir. 1998), which sets out what a party must do to oppose a motion for
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summary judgment. (Doc. 50). The Court declines to give the notice at this time because
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Rand requires that the notice be given only after a motion for summary judgment is filed.
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154 F.3d at 955.
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Accordingly,
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IT IS ORDERED denying Plaintiff’s Motion to Appoint Counsel (Doc. 43) and Motion
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to Bring Action for Declaratory and Injunctive Relief (Doc. 44).
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IT IS FURTHER ORDERED granting in part and denying in part Plaintiff’s Motion
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to Compel Production of Documents (Doc. 45). The motion is granted to the extent that
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Defendants shall further respond to Plaintiff’s Requests for Production 1 and 2 as outlined
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above. The motion is denied to the extent that the Court finds Defendants’ response to
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Plaintiff’s Request for Production 10 sufficient.
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IT IS FURTHER ORDERED granting in part and denying in part Plaintiff’s Objection
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to Answers and Motion to Compel (Doc. 47). The motion is granted to the extent that
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Defendants shall further respond to Plaintiff’s Requests for Admission 1-12, 14-15, 18, 23,
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26, 31, 34, 36, 38, 39, 41-42, 51, 53(H), 55, 57, 58, 60-61, and 67.1 The motion is denied in
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all other respects.
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IT IS FURTHER ORDERED denying Defendants’ Request for Notice to Plaintiff of
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Requirements for Opposing Motion for Summary Judgment (Doc. 50). Defendants may file
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any motion for summary judgment within the time set out below. The Court will thereafter
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issue the requisite Rand notice.
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IT IS FURTHER ORDERED Defendants shall serve their supplemental responses to
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Plaintiff’s Requests for Admission no later than January 13, 2012. The deadline for
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completion of all discovery shall be extended to January 13, 2012. The deadline for filing
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dispositive motions shall be extended to February 13, 2012.
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DATED this 29th day of November, 2011.
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The Court uses the numbers assigned by Defendants in their responses.
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