West v. Federal Bureau of Prisons et al
Filing
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ORDER Denying Plaintiff's Motion to Compel 34 , signed by Magistrate Judge Gerald B. Cohn on 6/16/11. (Verduzco, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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GERALD A. WEST,
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CASE NO.
Plaintiff,
1:09-cv-01277-LJO-GBC (PC)
ORDER DENYING PLAINTIFF’S MOTION TO
COMPEL
v.
(ECF No. 34)
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FEDERAL BUREAU OF PRISONS, et al.,
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Defendants.
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ORDER
Plaintiff Gerald A. West (“Plaintiff”) is a federal prisoner proceeding pro se and in
forma pauperis in this civil rights action pursuant to Bivens v. Six Unknown Named Agents
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of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971). This action proceeds
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on Plaintiff’s Third Amended Complaint filed August 27, 2010 alleging Eighth Amendment
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violations against Defendant Does 1, 2, and 3. (ECF No. 25.) On February 18, 2011, the
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Court issued an Order requiring Plaintiff to provide additional information about Doe
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Defendants to initiate service of process. (ECF No. 29.) Plaintiff responded with additional
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information, but was unable to provide enough to effectuate service. (ECF No. 30.)
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Plaintiff then filed a request to open limited discovery so that he could gather information
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to identify the Defendant Does. On May 2, 2011, this request was granted and discovery
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was opened for the limited purpose of identifying Doe Defendants. (ECF No. 33.) Plaintiff
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was given 120 days to provide such information. (Id.)
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Pending before the Court now is Plaintiff’s Motion to Compel. (ECF No. 34.) In it,
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Plaintiff asks that the United States Attorney’s Office be required to produce video footage
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and any documents related to the October 27, 2007 assault on Plaintiff, policies on staff
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supervision of inmates, policies on staff response to inmates regarding inmate threats and
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violence, a log of prison staff employees assigned to intake screening new arrivals on
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October 26, 2007, a log of prison staff involved in the assault on Plaintiff’s cell mate on
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October 27, 2007, a log of prison staff involved in the investigation of the assault on
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Plaintiff and his cell mate, and a log of prison staff who were responsible for opening the
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unit after lockdown on October 27, 2007. Plaintiff states that he sent a request for these
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documents to the United States Attorney’s Office on May 5, 2011, but has not yet received
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a response.
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While some of the information requested by Plaintiff could lead to the identification
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of Doe Defendants, this Motion to Compel is improper. Under Rule 37 of the Federal
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Rules of Civil Procedure, a motion to compel may be brought “[i]f a party fails to make a
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disclosure required by Rule 26(a)” or replies to a discovery request with an “evasive or
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incomplete disclosure, answer, or response.” See Fed.R.Civ.P. 37(a). At the present
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stage in the proceedings, a motion to compel is not the proper course of action. General
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discovery has not been opened. Defendants have not been named nor required to
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disclose anything. The proper action would have been to file a request for the issuance
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of a subpoena duces tecum. (See ECF No. 36.)
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Therefore, Plaintiff’s Motion to Compel is DENIED.
IT IS SO ORDERED.
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Dated:
1j0bbc
June 16, 2011
UNITED STATES MAGISTRATE JUDGE
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