(PC) Johnson v. Dovey et al, No. 1:2008cv00640 - Document 113 (E.D. Cal. 2011)

Court Description: ORDER DENYING April 23, 2010 99 Motion to Compel as MOOT; ORDER REGARDING 85 , 91 , 94 , Motions to Compel; ORDER GRANTING Plaintiff's 109 Motion for Modification of Discovery and Scheduling Order IN PART signed by Magistrate Judge Dennis L. Beck on 2/11/2011. (Sant Agata, S)

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(PC) Johnson v. Dovey et al Doc. 113 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 GARRISON S. JOHNSON, CASE NO. 1:08-CV-00640-LJO-DLB PC 9 Plaintiff, ORDER DENYING APRIL 23, 2010 MOTION TO COMPEL AS MOOT (DOC. 99) 10 v. 11 ORDER REGARDING MOTIONS TO COMPEL (DOCS. 85, 91, 94) JOHN DOVEY, et al., 12 Defendants. ORDER GRANTING PLAINTIFF’S MOTION FOR MODIFICATION OF DISCOVERY AND SCHEDULING ORDER IN PART (DOC. 109) 13 14 / 15 16 Order 17 I. Background 18 Plaintiff Garrison S. Johnson (“Plaintiff”) is a prisoner in the custody of the California 19 Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in 20 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding 21 against Defendants Dunnahoe, V. Ybarra, Cunningham, Medrano, Holguin, Valasquez, G. 22 Ybarra, Curliss, J. Gonzales, and K. Powell. Pending before the Court are Plaintiff’s motions to 23 compel, filed April 23, 2010, August 12, 2010, September 14, 2010, and September 17, 2010. 24 Docs. 85, 91, 94, and 99. Defendants filed their opposition to the motions on May 6, 2010, 25 November 3, 2010, and December 20, 2010. Docs. 57, 100, 108. 26 Also pending before the Court is Plaintiff’s motion seeking modification of the Court’s 27 discovery and scheduling order, filed January 14, 2011. Doc. 109. Defendants filed their 28 opposition on January 26, 2011. Doc. 110. 1 Dockets.Justia.com 1 II. April 23, 2010 Motion To Compel 2 Plaintiff had filed this motion on April 23, 2010. Doc. 99. Due to a clerical error, this 3 motion was erroneously not docketed until November 1, 2010. Defendants file their opposition 4 on May 6, 2010. Doc. 57. 5 The issues raised in that motion were addressed by the Court’s August 3, 2010 Order, 6 which ordered Plaintiff to submit a motion to compel that provided sufficient specificity as to 7 what discovery responses were inadequate and for which he sought further response. Doc. 83. 8 Accordingly, it is HEREBY ORDERED that Plaintiff’s motion to compel, filed April 23, 2010, 9 is DENIED as moot. 10 III. August 12, 2010 Motion To Compel 11 Plaintiff seeks to compel further response from Defendants V. Ybarra, Cunningham, and 12 Medrano as to Plaintiff’s first set of interrogatories. Doc. 85. Defendants filed an opposition on 13 November 3, 2010. Defs.’ Opp’n, Doc. 100. 14 A. 15 Plaintiff seeks to compel further response as to Interrogatories Nos. 1, 2, 6, 9, 11, and 12. 16 17 Defendant V. Ybarra: 1. Interrogatories Nos. 1 and 2: Interrogatory No. 1 seeks an answer as to the date Defendant V. Ybarra started to work 18 for the CDCR. Interrogatory No. 2 seeks an answer as to where and how long Defendant V. 19 Ybarra has worked for the CDCR. 20 Defendants object generally that the requested personal information is private 21 information. Defs.’ Opp’n, Doc. 100. Defendants further contend that this information attempts 22 to ascertain prison assignments that could compromise safety and security at the institution. 23 Defendants further contend that this information is not relevant to whether Defendant V. Ybarra 24 used excessive force on Plaintiff. 25 The Court finds Defendants’ arguments as to privacy regarding Interrogatories Nos. 1 and 26 2 unpersuasive. Federal common law recognizes a qualified privilege for official information, 27 also known as the governmental privilege, or state secret privilege. Kerr v. United States District 28 Court for the Northern District of California, 511 F.2d 192, 198 (9th Cir. 1975). The application 2 1 of the official information privilege is “contingent upon the competing interests of the requesting 2 litigant and subject to disclosure especially where protective measures are taken.” Id. 3 Government personnel files are considered official information. See Sanchez v. City of Santa 4 Ana, 936 F.2d 1027, 1033 (9th Cir. 1990) (finding city police department personnel files not 5 subject to discovery for general search). To determine whether the information sought is 6 privileged, courts must “weigh the potential benefits of disclosure against the potential 7 disadvantages.” Id. at 1033-34. If the potential disadvantages are greater, then the privilege bars 8 discovery. Id. at 1033. 9 Defendants are employees of the CDCR, and the incident in question occurred during the 10 course of Defendants’ employment. Plaintiff’s request is relevant. Plaintiff’s motion to compel 11 further response to Interrogatories Nos. 1 and 2 is granted. 12 2. 13 Interrogatories Nos. 6, 9, 11, 12: Interrogatory No. 6 seeks an answer as to what areas Defendant V. Ybarra was assigned 14 to work at California Correctional Institution (“CCI”) from 2006 through 2007. Interrogatory 15 No. 9 seeks an answer as to whether Defendant V. Ybarra is married to Defendant G. Ybarra. 16 Interrogatory No. 11 seeks an answer as to whether she was working in CCI housing unite 4A-4A 17 on March 17, 2007 with her husband Defendant G. Ybarra. Interrogatory No. 12 seeks an answer 18 as to whether CDCR policy prohibits married couples from working together in the same housing 19 unit. 20 The Court finds Plaintiff’s arguments unavailing. Plaintiff’s claims are for excessive 21 force, deliberate indifference to a serious medical need, and retaliation. Pl.’s Compl., filed May 22 8, 2008, Doc. 1. Plaintiff alleges retaliation by Defendants because he had filed a lawsuit which 23 resulted in the California prison system being de-segregated as to two-man cells. Id. ¶¶ 26, 4424 45.1 This alleged retaliatory motive has nothing to do with the marital status of any Defendants 25 in this action. 26 Plaintiff contends that Interrogatory No. 6 would go towards demonstrating that 27 1 28 The Court takes judicial notice that the lawsuit Plaintiff refers to is Johnson v. California, 543 U.S. 499 (2005). 3 1 Defendant V. Ybarra was not assigned to work in building Unit 4 at CCI, and that she was in 2 violation of CDCR’s policy regarding spouses not working together in the same building unit. 3 This is not relevant to the action as alleged in the complaint. See Fed. R. Civ. P. 26(b). Thus, 4 Plaintiff’s motion to compel further response to Interrogatory No. 6 is denied. 5 Plaintiff’s Interrogatories Nos. 9, 11, and 12 are also not relevant and will not lead to the 6 discovery of admissible evidence. Plaintiff’s motion to compel further response as to 7 Interrogatories Nos. 9, 11, and 12 is denied. 8 9 B. Plaintiff seeks to compel further response as to Interrogatories Nos. 1, 2, 7, 9, 12, and 13. 10 11 Defendant Medrano: 1. Interrogatories Nos. 1 and 2 Interrogatory No. 1 seeks an answer as to the date Defendant Medrano started to work for 12 the CDCR. Interrogatory No. 2 seeks an answer as to where and how long Defendant Medrano 13 has worked for the CDCR. 14 Defendant Medrano contends that Interrogatories Nos. 1 and 2 violate Defendant’s right 15 to privacy. Plaintiff’s motion to compel further response to Interrogatories Nos. 1 and 2 is 16 granted. 17 18 2. Interrogatories Nos. 7 and 9: Interrogatory No. 7 seek an answer as to whether CDCR rules, regulations, policy 19 requires the filling out of reports after use of pepper spray on an inmate, and to document the 20 quantity of the contents used. Defendant Medrano contends that Interrogatory No. 7 is irrelevant, 21 as Defendant Medrano was either entitled to use the pepper spray, or he was not. This argument 22 is unpersuasive. It is possible to be authorized to use pepper spray, but only in certain amounts. 23 Thus, the quantity of pepper spray used is relevant and may lead to the discovery of admissible 24 evidence. Defendant Medrano will be required to provide further response to Interrogatory No. 25 7. Any institutional security concerns may be addressed by moving for a protective order. 26 Interrogatory No. 9 seeks an answer as to what training Defendant received as to how to 27 use the pepper spray on an inmate. Defendant Medrano contends that Interrogatory No. 9 is 28 vague as to “how” an officer is trained to “utilize” pepper spray. The Court construes this as an 4 1 interrogatory seeking a description of what training Defendant Medrano received from CDCR 2 regarding the use of pepper spray, namely the pepper spray that was used on Plaintiff during the 3 incident at issue. There is no explanation as to how this would jeopardize officer safety. This 4 interrogatory would appear relevant, as it goes towards whether the use of pepper spray was 5 excessive. Defendant Medrano will be required to provide further response to Interrogatory No. 6 9. 7 8 3. Interrogatories Nos. 12 and 13: Interrogatory No. 12 seeks an answer as to whether any other inmate have ever filed an 9 inmate grievance appeal against Defendant Medrano for assault or subjecting him to use of 10 excessive force as a correctional officer. Interrogatory No. 13 seeks an answer as to whether any 11 other inmate has filed a civil lawsuit against Defendant Medrano alleging the filing of false 12 reports and excessive force. Defendant Medrano contends that Interrogatories Nos. 12 and 13 are 13 beyond the scope of time in this action, as Plaintiff requests all grievances ever filed. The Court 14 will limit the scope of the inquiry to five years prior to the alleged incident in March 17, 2007. 15 Regarding Interrogatory No. 12, Defendant Medrano further contends that he does not 16 have possession of the inmate grievances, and that it would be unduly burdensome, oppressive, 17 and harassing to require him to produce said grievances. Defendant Medrano’s objection is 18 without merit, the interrogatory calls for a written verified answer to the question not the 19 production of documents. If he chooses, Defendant Medrano may respond by producing the 20 documents. Additionally, Plaintiff filed a motion for subpoena duces tecum for the secretary of 21 the CDCR, Mathew Cate, or his designee, to produce similar documents. Plaintiff’s motion to 22 compel further response to Interrogatory No. 12 is granted. 23 Regarding Interrogatory No. 13, Defendant Medrano contends that civil lawsuits filed 24 against Defendant Medrano would be public record and Plaintiff can access such information 25 himself. The Court does not agree. Medrano and or his attorney have knowledge of such cases 26 and access to records of CDCR and/or the Attorney General’s Office which will facilitate easier 27 access to such information than a search of the records of the courts of various jurisdiction in 28 California. Plaintiff’s motion to compel further response to Interrogatory No. 13 is granted as to 5 1 lawsuits filed within the past 10 years alleging excessive use of force against prisoners. 2 C. 3 Plaintiff seeks to compel further response as to Interrogatories Nos. 2, 8, 10, 11, and 12. 4 5 Defendant Cunningham: 1. Interrogatory No. 2: Interrogatory No. 2 seeks an answer as to the year and name of each CDCR prison that 6 Defendant has worked at. Defendants contend that it is attempting to ascertain information 7 regarding prison assignments, which could undermine safety and security. Defendants contend 8 that it is not relevant as to the excessive force incident alleged. 9 As stated previously, with regard to other defendants Plaintiff’s motion to compel further 10 response to Interrogatory No. 2 is granted. 11 12 2. Interrogatory No. 8: Interrogatory No. 8 seeks an answer as to what training Defendant received as to how to 13 use the pepper spray on an inmate. The Court construes the Interrogatory as previously stated 14 regarding Defendant Medrano. Defendant Cunningham’s arguments are likewise unpersuasive. 15 Defendant Cunningham will be required to provide further response to Interrogatory No. 8. Any 16 institutional security issues may be resolved by moving for a protective order. 17 18 3. Interrogatories Nos. 10, 11, 12: Interrogatory No. 10 seeks further information regarding whether any other inmate has 19 filed an inmate grievance against Defendant claiming that Defendant filed a false report against 20 him. Interrogatory No. 11 seeks further information regarding whether any other inmate has filed 21 an inmate grievance against Defendant claiming that Defendant assaulted him or used excessive 22 force against him. Interrogatory No. 12 seeks further information regarding whether any other 23 inmate had filed a civil lawsuit against Defendant alleging excessive force or the filing of false 24 reports. 25 These arguments have been addressed above regarding interrogatories propounded to 26 Defendant Medrano. Accordingly, Plaintiff’s motion to compel further response to 27 Interrogatories Nos. 10, 11, and 12 is granted to the same extent it was as to Defendant Medrano. 28 // 6 1 IV. September 14, 2010 Motion To Compel (Doc. 91) 2 Plaintiff seeks to compel answers to interrogatories served on Defendants Gonzales, 3 Powell, and Velasquez. Doc. 91. Defendants filed their opposition on December 20, 2010. Doc. 4 108. 5 Defendants contend that they had informed Plaintiff that they would defer responding to 6 Plaintiff’s discovery requests until after the adjudication of their motion to dismiss. Defendants 7 contend that Plaintiff has not attempted to work with Defendants regarding discovery in this 8 matter. Defendant Gonzales has responded to Plaintiff’s interrogatories. Defendant Powell 9 responded to Plaintiff’s interrogatories on January 4, 2011, and Defendant Velasquez responded 10 to Plaintiff’s interrogatories on January 13, 2011. See Defs.’ Opp’n, Doc. 110. 11 Plaintiff also seeks costs in the amount of $200.00 for filing his motion. Doc. 91. 12 Federal Rule of Civil Procedure 37(a)(5) requires the Court not to order such payment if: 13 (i) 14 the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; 15 (ii) 16 the opposing party’s nondisclosure, response, or objection was substantially justified; or 17 (iii) other circumstances make an award of expenses unjust. 18 It appears that Defendants have filed their responses, and that Plaintiff did not attempt to 19 resolve this issue in good faith prior to filing his motion to compel. Defendants will not be 20 required to pay any expenses.2 As it is unclear what disputes Plaintiff has with the Defendants’ 21 current responses, Plaintiff’s motion to compel is denied as moot. 22 Plaintiff also filed a motion to reopen discovery and extend the dispositive motion 23 deadline regarding Defendants’ responses. Doc. 109. The Court will address that motion below. 24 /// 25 26 27 28 2 The Court does not require that the parties certify that they attempted in good faith to confer with the other party prior to filing a motion to compel. Discovery and Scheduling Order, Doc. 40. However, such compliance was encouraged, and the Court is disinclined to impose reasonable expenses on a responding party, especially when the responding party has made it known to the moving party that it is willing to resolve discovery disputes prior to the filing of a motion to compel. 7 1 V. September 17, 2010 Motion To Compel 2 Plaintiff seeks to compel further response to Plaintiff’s second set of interrogatories 3 propounded on Defendant V. Ybarra. Doc. 94. Defendants filed their opposition on December 4 20, 2010. Doc. 100. 5 Defendants contend that they did not respond to Plaintiff’s second set of interrogatories 6 through inadvertence. Defendants have subsequently propounded their responses. Thus, 7 Plaintiff’s motion to compel is denied as moot. 8 Plaintiff again seeks expenses for the filing of his motion to compel. Again, Plaintiff 9 does not appear to have acted in good faith to resolve this discovery issue prior to seeking court 10 action. Thus, reasonable expenses will not be imposed on Defendants. 11 VI. Motion To Re-Open Discovery And Reset Dispositive Motion Deadline 12 On January 14, 2011, Plaintiff filed a motion to re-open discovery and to reset the 13 dispositive motion deadline. Doc. 109. Plaintiff contends that because Defendant V. Ybarra and 14 other Defendants did not respond to Plaintiff’s discovery requests until after the discovery cut-off 15 date, Plaintiff did not have the opportunity to file a motion to compel. 16 Defendants contend that they are amenable to extending the discovery cut-off date 17 regarding Defendant Powell and Velasquez’s responses. Doc. 110. However, Defendants 18 contend that Defendant V. Ybarra did respond to Plaintiff’s interrogatories. 19 Good cause is required for the modification of a court’s scheduling order. Fed. R. Civ. P. 20 16(b)(4). The Court will examine Plaintiff’s motion to determine if he has made the requisite 21 showing of good cause. 22 Plaintiff seeks to compel further response from Defendant V. Ybarra as to Interrogatories 23 Nos. 2 and 11. Plaintiff contends that Interrogatory No. 2 reads: “On March 17, 2007, did you 24 write and prepare the crime/incident report that is attached to these interrogatories marked as 25 Exhibit A?” Plaintiff contends that Interrogatory No. 11 reads: “Please state whether your 26 crime/incident report states that you had placed your right knee on Johnson’s left leg and both 27 your hands on his right leg for the purpose of holding his down with your body weight?” The 28 Court notes that these interrogatories correspond to the interrogatories attached to Plaintiff’s 8 1 motion to compel, filed September 17, 2010. 2 Plaintiff attaches Defendant V. Ybarra’s submitted responses to Plaintiff’s second set of 3 interrogatories. There is a discrepancy, as Defendant V. Ybarra responded to a different set of 4 questions. 5 On November 29, 2010, the Court ordered Defendants to respond to Plaintiff’s motions to 6 compel, filed on September 14, 2010 and September 17, 2010. Doc. 106. Plaintiff’s September 7 17, 2010 motion to compel includes the second set of interrogatories to which Defendant V. 8 Ybarra was to respond. Defendants responded to the incorrect set of interrogatories. Thus, they 9 are not in compliance with the Court’s order. The Court will thus require Defendant V. Ybarra 10 to respond to Plaintiff’s Interrogatories Nos. 2 and 11 as they are stated in Plaintiff’s January 14, 11 2011 motion. Defendant V. Ybarra will be required to respond within ten (10) days from the 12 date of service of this order. 13 Defendants do not oppose an extension of time for Plaintiff to file a motion to compel 14 regarding Defendants Velasquez and Powell’s responses to Plaintiff’s interrogatories. It does not 15 appear that Plaintiff has any issues with Defendant Gonzales’s responses. Thus, Plaintiff will be 16 granted thirty (30) days from the date of service of this order to file a motion to compel regarding 17 Defendants Velasquez and Powell’s responses. Failure to timely file a motion to compel will be 18 construed as a waiver of a motion to compel. 19 Plaintiff has not provided good cause for modification of the scheduling order as to the 20 dispositive motion deadline. Plaintiff’s request is thus denied. 21 VII. Conclusion And Order 22 Based on the foregoing, it is HEREBY ORDERED that: 23 1. 24 25 Plaintiff’s April 23, 2010 motion to compel, filed at docket No. 99, is DENIED as moot; 2. Plaintiff’s August 12, 2010 motion to compel, filed at docket No. 85, is 26 GRANTED in part and DENIED in part as follows: 27 a. 28 Plaintiff’s motion to compel further response from Defendant V. Ybarra to Plaintiff’s first set of Interrogatories, Nos. 1 and 2 is GRANTED. 9 1 Defendant V. Ybarra is to provide further response to Plaintiff within 2 thirty (30) days from the date of service of this order. Plaintiff may file a 3 motion to compel regarding Defendant V. Ybarra’s response, if any, 4 within twenty (20) days after service of Defendant V. Ybarra’s response; 5 b. 6 Plaintiff’s motion to compel further response from Defendant V. Ybarra to Plaintiff’s first set of Interrogatories, Nos. 6, 9, 11, and 12 is DENIED; 7 c. Plaintiff’s motion to compel further response from Defendant Medrano to 8 Interrogatories Nos. 1, 2, 7, 9, 12, and 13 is GRANTED. Defendant 9 Medrano is to provide further response to Plaintiff within thirty (30) days 10 from the date of service of this order. Plaintiff may file a motion to 11 compel regarding Defendant Medrano’s response, if any, within twenty 12 (20) days after service of Defendant Medrano’s response; 13 d. Plaintiff’s motion to compel further response from Defendant 14 Cunningham to Interrogatories No. 2, 8, 10, 11, and 12 is GRANTED. 15 Defendant Cunningham is to provide further response to Plaintiff within 16 thirty (30) days from the date of service of this order. Plaintiff may file a 17 motion to compel regarding Defendant Cunningham’s response, if any, 18 within twenty (20) days after service of Defendant Cunningham’s 19 response; 20 3. 21 22 DENIED as moot; 4. 23 24 Plaintiff’s September 14, 2010 motion to compel, filed at docket No. 91, is Plaintiff’s September 17, 2010 motion to compel, filed at docket No. 94, is DENIED as moot; 5. Plaintiff’s January 14, 2011 motion for modification of the discovery and 25 scheduling order, filed at docket No. 109, is GRANTED in part and DENIED in 26 part as follows: 27 a. 28 Modification of the discovery cut-off date for Plaintiff to file a motion to compel regarding Defendants Velasquez and Powell’s responses to 10 1 Plaintiff’s interrogatories is GRANTED. Plaintiff is granted thirty (30) 2 days from the date of service of this order in which to file a motion to 3 compel, if any; 4 b. Defendant V. Ybarra is ordered to file further response to Plaintiff’s 5 Interrogatories Nos. 2 and 11 from Plaintiff’s second set within ten (10) 6 days from the date of service of this order. A motion to compel regarding 7 Defendant V. Ybarra’s responses to Interrogatories Nos. 2 and 11, if any, 8 is due within thirty (30) days from the date of service of this order; 9 10 11 c. Modification of the dispositive motion deadline is DENIED. IT IS SO ORDERED. Dated: 3b142a February 11, 2011 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

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