(PC) Jacobs v. Scribner, et al, No. 1:2006cv01280 - Document 140 (E.D. Cal. 2010)

Court Description: ORDER Granting in Part and Denying in Part Plaintiff's Motion to Compel Defendants' Compliance with Court Ordered Supplemental Responses to Plaintiff's Requests for Production of Documents; ORDER for Defendants to Show Cause, within Thirty Days, why Sanctions Should not be Imposed signed by Magistrate Judge Gary S. Austin on 11/08/2010. Show Cause Response due by 12/13/2010. Discovery due by 12/28/2010. (Flores, E)
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(PC) Jacobs v. Scribner, et al Doc. 140 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GEORGE E. JACOBS IV, 12 Plaintiff, 13 14 1:06-cv-01280-AWI-GSA-PC ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO COMPEL DEFENDANTS’ COMPLIANCE WITH COURT ORDERED SUPPLEMENTAL RESPONSES TO PLAINTIFF'S REQUESTS FOR PRODUCTION OF DOCUMENTS (Doc. 120.) vs. ALLEN K. SCRIBNER, et al., 15 Defendants. 16 ORDER FOR DEFENDANTS TO SHOW CAUSE, WITHIN THIRTY DAYS, WHY SANCTIONS SHOULD NOT BE IMPOSED 17 18 19 20 / I. BACKGROUND 21 Plaintiff George E. Jacobs IV (“Plaintiff”) is a state prisoner proceeding pro se and in forma 22 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action now proceeds on Plaintiff's 23 original complaint, filed September 18, 2006, against defendants Sgt. J. M. Martinez, C/O German and 24 C/O Northcutt ("Defendants") for use of excessive physical force, and against defendant Sgt. J. M. 25 Martinez for acting with deliberate indifference to Plaintiff's serious medical needs.1 (Doc. 1.) The 26 27 28 1 On June 4, 2007, the Court ordered that this action proceed on Plaintiff's original complaint against defendants Martinez, German, Northcutt, and Does 1 and 2 for use of excessive force, assault and battery, and intentional infliction of emotional distress; and against defendants Martinez and Does 3, 4, and 6-10 for acting with deliberate indifference to 1 Dockets.Justia.com 1 excessive force claim, which is also brought against two Doe defendants, allegedly occurred during the 2 escort of Plaintiff from the Acute Care Hospital to the Security Housing Unit on January 26, 2005. The 3 medical care claim against defendant Martinez arises from defendant Martinez’ alleged failure to obtain 4 medical care for Plaintiff on January 27, 2005; and the medical care claims against Does 3, 4, and 6-10 5 arise from the failure to obtain medical care for Plaintiff between January 27, 2005 and February 3, 6 2005. Plaintiff alleges that he was ultimately transported to an outside hospital for emergency medical 7 care on February 2, 2005, and lost the sight in one eye as a result of his injuries. 8 On May 14, 2010, Plaintiff filed a motion to compel Defendants to comply with court-ordered 9 discovery responses. (Doc. 120.) On June 4, 2010, Defendants filed an opposition to the motion. (Doc. 10 126.) On June 30, 2010, Plaintiff filed a reply to the opposition. (Doc. 132.) 11 II. PLAINTIFF’S MOTION TO COMPEL 12 A. 13 Rule 37(b)(2) of the Federal Rules of Civil Procedure provides that if a party fails to obey an 14 order to provide or permit discovery, the court may issue further orders, which may include the 15 imposition of sanctions upon the disobedient party. Fed. R. Civ. P. 37(b)(2)(A). Rule 37(b)(2) - Failure to Comply With a Discovery Order 16 B. 17 Plaintiff brings a motion for the Court to compel Defendants to comply with the Court's order 18 of September 25, 2009, which ordered Defendants to provide supplemental responses to Plaintiff’s 19 Requests for Production Nos. 1, 5, 6, 9, 14-45, 49-51, and 58. (Doc. 120.) Plaintiff claims that 20 Defendants failed to comply with the Court’s order with regard to Requests Nos. 1, 18-31, 33-38, 45, 21 49, and 58. As to Requests Nos. 1, 18-31, and 33-38, Plaintiff argues that Defendants failed to provide 22 him with copies of all of the documents he requested, and Plaintiff takes issue with the fact that 23 Defendants did not specifically state that they do not have possession, custody or control of particular 24 documents. As to Request No. 45, Plaintiff argues that Defendants’ response contradicts Defendants’ 25 responses to Plaintiff’s Requests for Admissions Nos. 52, 55, 73, 74, and 77. As to Request No. 49, Parties’ Positions 26 27 28 Plaintiff's serious medical needs; and all other defendants and claims were dismissed by the Court based on Plaintiff's failure to state a claim. (Doc. 17.) On November 16, 2009, summary judgment was granted in favor of Defendants on Plaintiff's claims for assault and battery and intentional infliction of emotional distress under California law. (Doc. 101.) Plaintiff has not sufficiently identified the Doe defendants to enable service of process by the Marshal. See Doc. 101 at 2 fn.2. 2 1 Plaintiff asserts that Defendants misread the Request and as a result failed to respond appropriately. As 2 to Request No. 58, Plaintiff argues that Defendants failed to provide Plaintiff with copies of insurance 3 documents, or in the alternative, an affidavit, as ordered by the court. Plaintiff provides evidence that 4 he attempted to persuade Defendants to provide the requested documents, without success, before 5 resorting to the present motion. (Exhs. to M to Compel, Doc. 120 at 35-36.) 6 In opposition, Defendants claim they have complied with Federal Rule of Civil Procedure 34 by 7 adequately and appropriately providing responses to Plaintiff’s three sets of requests for production of 8 documents. Defendants claim they have provided all responsive documents in their possession, custody 9 and control, and there is nothing more they can produce. As to Requests Nos. 1, 18-31, and 33-38, 10 Defendants claim that they provided copies of documents to Plaintiff’s correctional counselor, instead 11 of to Plaintiff, because possession of the documents by Plaintiff would place the safety and security of 12 the institution and Defendant Martinez and his family at risk. As to Requests Nos. 45 and 49, 13 Defendants maintain they do not have any responsive documents in their possession, custody and 14 control. As to Request No. 58, Defendants state that they informed Plaintiff about the insurance 15 available to correctional officers. Defendants also argue that Plaintiff should be required to comply with 16 Rule 56(f) by showing what facts he hopes to discover, that these facts actually exist, and that these facts 17 are essential to resist Defendants’ motion for summary judgment filed on May 25, 2010. 18 In reply, Plaintiff argues that Defendants failed to comply with the court’s order which required 19 them to notify the court within thirty days if they stand by their contention that production of documents 20 ordered produced would jeopardize the safety and/or security of any CDCR facility, staff, and/or inmate, 21 so that the court could revisit Defendants’ objection. Plaintiff also argues that some of the documents 22 withheld by Defendants do not jeopardize safety and/or security, since Defendants have redacted 23 defendant Martinez’ personal information. Plaintiff claims that Defendants have not complied with Rule 24 26(b)(5) which requires them to “describe the nature of the documents, communications, or things not 25 produced or disclosed in a manner that, without revealing information itself privileged or protected, will 26 enable other parties to assess the applicability of the privilege or protection.” With regard to 27 Defendants’ argument that Plaintiff should be required to comply with Rule 56(f), Plaintiff argues that 28 /// 3 1 the present motion to compel has nothing to do with Defendants’ summary judgment motion, which was 2 filed afterward. 3 C. 4 Plaintiff claims that Defendants failed to comply with the Court’s order of September 25, 2009, 5 with regard to Requests Nos. 1, 18-38, 45, 49 and 58. The Court here issues combined rulings on 6 Plaintiff’s Requests at issue that are similar in nature. The only issue now before the Court is whether 7 Defendants have complied with the Court’s order.2 8 Discussion 1. Request for Production No. 1 9 In Request No. 1, Plaintiff requests, inter alia, records of any allegations “made by an inmate” 10 of misconduct by prison staff involving the Defendants. Plaintiff has clarified that he is requesting 11 copies of documents such as Form 602 complaints and citizen complaints by inmates against the 12 Defendants. Defendants did not make any response to Plaintiff’s request for documents referring to any 13 allegations “made by an inmate.” 14 Plaintiff’s motion to compel is granted in part, subject to the limitation that this request for 15 production of documents is narrowed to include only those grievances and complaints (e.g., Form 602 16 complaints and citizen complaints) filed by an inmate against any Defendant(s) that involve claims 17 similar to those raised by Plaintiff in the instant action – i.e., defendants Martinez, German, and 18 Northcutt for use of excessive physical force, and defendant Martinez for acting with deliberate 19 indifference to serious medical needs. 20 2. Requests for Production Nos. 1, 18-31, 33-38 21 In Requests Nos. 1, 18-31, and 33-38, Plaintiff requests various records of actions taken 22 regarding misconduct by Defendants, including the following: Designated Case records, Employee 23 Counseling Records, Executive Review records, Notices of Adverse Action, Office of Internal Affairs 24 files, Preliminary Notices of Adverse Action, Skelly Hearing results records, Skelly Letters, Employee 25 Relations Officer/Disciplinary Officer’s Summary adverse actions records, Hiring Authority’s 26 2 27 28 Defendants argue that Plaintiff should be required to show that the facts he hopes to discover are essential to resist Defendants’ summary judgment. This issue shall not be considered here. Plaintiff’s motion concerns Defendants’ compliance with the Court’s order of September 25, 2009. Defendants’ motion for summary judgment was not filed until May 25, 2010, eight months after the Court issued its order. 4 1 investigative and disciplinary records, Employee’s Supervisory Files, Vertical Advocate investigative 2 records, Officer of Personnel Services and Human Resources documents, Office of Personnel 3 Services/Employee discipline Unit records, Central Intake documents, Adverse Action Penalties 4 documents, Summary of Adverse Action documents for non-designated cases by the ERO/Disciplinary 5 Officer, ATO Notices, Employment Advocacy and Prosecution Team reports, Disciplinary Audits 6 prepared by the Office of Legal Affairs, and related documents. 7 In their supplemental response, Defendants responded that after further reasonable inquiry, they 8 provided true copies of adverse actions C-COR-707-08-D and C-COR-706-08-D, which concern an 9 action taken against defendant Martinez, to Plaintiff’s correctional counselor. Defendants claim they 10 cannot provide copies of these documents to Plaintiff because of safety and security concerns for 11 Martinez and the institution, and they have redacted defendant Martinez’s personal information from 12 the documents to protect Martinez and his family. Defendants also responded that they are not in 13 possession, custody, or control of any other documents responsive to these requests. 14 Plaintiff argues that Defendants failed to mention anything about not having possession, custody 15 or control of documents specifically referring to misconduct by defendants Northcutt and German. This 16 argument is unpersuasive, as Defendants’ statement that they “are not in possession, custody, or control 17 of any other documents” suffices to include documents referring to particular defendants. 18 Plaintiff also argues that Defendants failed to comply with the Court’s order requiring them to 19 notify the Court of safety and security issues concerning documents ordered to be produced. The Court’s 20 order required Defendants to “notify the Court within thirty days from the date of service of this order 21 of any continuing belief (with supporting evidence) that disclosure of any documents ordered produced 22 herein will cause safety and security issues.” (Doc. 88 at 3:13-16.) The Court has not received any 23 notification from Defendants explaining why they believe providing Plaintiff with redacted copies of 24 C-COR-707-08-D and C-COR-706-08-D would place the safety and security of Defendant Martinez, 25 his family, and the institution at risk. Providing copies to Plaintiff’s correctional counselor does not 26 comply with the Court’s order, and the Court is unable to revisit the issue of Defendants’ safety and 27 security concerns about C-COR-707-08-D and C-COR-706-08-D without more information from 28 Defendants. 5 1 Plaintiff’s motion to compel is granted in part. Defendants are required to provide Plaintiff with 2 copies of the documents concerning adverse actions C-COR-707-08-D and C-COR-706-08-D which 3 Defendants previously provided to Plaintiff’s correctional counselor. Defendants may redact from the 4 relevant documents any information relating to the identities of third parties. If the Defendants have any 5 continuing belief that disclosure of redacted copies of C-COR-707-08-D and C-COR-706-08-D will 6 cause safety and security issues, Defendants shall notify the Court within thirty days from the date of 7 service of this order, and the Court will revisit the issue. 8 3. Request for Production No. 45 9 In Request No. 45, Plaintiff requests copies of videotaped or audiotaped interviews by inmates 10 who sustained blows to the head, serious injury, or made allegations of inappropriate use of force, 11 against any of the Defendants. In their supplemental response, Defendants maintain they do not have 12 any responsive documents in their possession, custody or control. Plaintiff claims that this supplemental 13 response contradicts Defendants’ responses to Plaintiff’s Requests for Admissions Nos. 52, 55, 73, 74, 14 and 77, in which Defendant Northcutt admitted that staff complaints have been filed against him for 15 excessive use of force, and defendants Northcutt and German both admitted to being investigated by the 16 Internal Affairs Office for the use of excessive force against prisoners. 17 Even assuming that Defendants made the admissions claimed by Plaintiff, evidence of the 18 existence of staff complaints and investigations does not prove the existence of the videotaped or 19 audiotaped interviews requested by Plaintiff. Defendants cannot be compelled to produce an item that 20 is not within their possession, custody, or control. Plaintiff’s motion to compel is denied. 21 4. Request for Production No. 49 22 In Request No. 49, Plaintiff requests documents relating to medical treatment for prisoners who 23 suffer injury “this material may include,” which may include medical treatment policies for MTA’s, 24 RN’s and Psych Techs. The Court’s order of September 25, 2009, provided that if Defendants made a 25 reasonable inquiry and such information is truly not within Defendants’ possession, custody, or control, 26 then Plaintiff must accept that response. In their supplemental response, Defendants responded that they 27 made a reasonable inquiry and have no such materials in their possession, custody and control. Plaintiff 28 argues that Defendants have misread the question asked, explaining that he is not asking for other 6 1 prisoners’ medical records. The Court finds no evidence that Defendants believed that Plaintiff was 2 asking for other prisoners’ medical records. Defendants have adequately responded to Plaintiff’s 3 Request No. 49, and Plaintiff’s motion to compel is denied. 4 5. Request for Production No. 58 5 In Request No. 58, Plaintiff requests documents that refer or relate to any insurance agreements 6 that may cover all or part of any judgment for each of the Defendants. The court ordered Defendants 7 to produce “any insurance agreement in effect in January and February of 2005, that may cover all or 8 part of any judgment rendered in this case,” or in the alternative, to produce “an affidavit of an 9 authorized CDCR employee as to whether there is insurance coverage, for Plaintiff’s claims in this 10 action, in excess of the amounts sought in the Complaint.” (Doc. 88 at 19:16-20.) In their supplemental 11 response, Defendants simply informed Plaintiff that the State of California is self insured pursuant to 12 Government Code section 11007.8 et seq; and that correctional officers can obtain additional insurance 13 from their union as an option. 14 Plaintiff’s motion to compel is granted. Defendants have not complied with the Court’s order 15 requiring them to produce insurance agreements or an affidavit. Defendants’ statement that the State 16 of California is self insured is an insufficient response. If copies of insurance agreements covering the 17 State of California are not available, Defendants must submit an affidavit of an authorized CDCR 18 employee explaining whether the self-insurance covers Plaintiff’s claims against Defendants in excess 19 of the amounts sought in the Complaint. If the State’s self-insurance does not cover all of any judgment 20 rendered in this case, Defendants must also produce other insurance agreements, if any, in effect in 21 January and February of 2005 that may cover all or part of any judgment rendered in this case, or in the 22 alternative, an affidavit as described above. 23 III. PLAINTIFF’S MOTION FOR MONETARY SANCTIONS 24 Plaintiff seeks monetary sanctions for Defendants’ failure to comply with the Court’s order of 25 September 25, 2009. Plaintiff argues that he has been prejudiced by Defendants’ failure to provide him 26 with evidence beneficial to his case as ordered by the court. 27 /// 28 /// 7 1 A. 2 If a party fails to obey an order to provide or permit discovery, including an order under Rule 3 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. Fed. R. Civ. P. 4 37(b)(2)(A). The court must order the disobedient party, the attorney advising that party, or both to pay 5 the reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was 6 substantially justified or other circumstances make an award of expenses unjust. Fed. R. Civ. P. 7 37(b)(2)(C). No showing of wilfulness is required. See Lew v. Kona Hosp., 754 F.2d 1420, 1427 (9th 8 Cir. 1985). The court has considerable discretion in determining the amount and form of the award. See 9 General Signal Corp. v. Donallco, Inc., 787 F.2d 1376, 1380 (9th Cir. 1986). Fees to pro se litigants are 10 awardable under the courts inherent power. “Failure to do so would place a pro se litigant at the mercy 11 of an opponent who might engage in otherwise sanctionable conduct.” Pickholtz v. Rainbow 12 Technologies, Inc., 284 F.3d 1365, 1377 (Fed. Cir. 2002). Sanctions for Failure to Obey a Discovery Order 13 Federal courts have inherent power to impose sanctions against both attorneys and parties for 14 "bad faith" conduct in litigation or for "willful disobedience" of a court order. Chambers v. NASCO, 15 Inc., 501 U.S. 32, 43 (1991); Roadway Express, Inc. v. Piper, 447 U.S. 752, 764-66 (1980). The Court 16 may assess attorney fees or other sanctions under its inherent power for the “wilful disobedience of a 17 court order.” Chambers, 501 U.S. at 45; Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 18 240, 258 (1975). A fee award under the Court’s inherent power is meant to vindicate judicial authority, 19 rather than to provide a substantive remedy to an aggrieved party: “The wrong done was to the court.” 20 Mark Industries, Ltd. v. Sea Captain’s Choice, Inc., 50 F.3d 730, 733 (9th Cir. 1995). 21 B. 22 On September 25, 2009, the Court granted Plaintiff’s motion to compel and ordered Defendants 23 to provide supplemental responses to Plaintiff’s Requests for Production of Documents Nos. 1, 5, 6, 9, 24 14-45, 49-51, and 58. (Doc. 88.) Defendants’ responses to these requests were due on November 9, 25 2009. Id. Defendants requested and were granted two extensions of time to respond to Plaintiff’s 26 requests, resulting in a deadline of March 19, 2010 for Defendants to serve the responses. (Docs. 100, 27 102, 106, 109.) On or about April 2, 2010, Plaintiff served a “meet and confer” letter upon Defendants 28 inquiring into Defendants’ deficient responses to some of the discovery requests. (Exh. B to M to Discussion 8 1 Compel, Doc. 120 at 35-36.) On May 14, 2010, Plaintiff filed the instant motion to compel. (Doc. 120.) 2 Defendants responded to Plaintiff’s motion to compel without explanation for their failure to respond 3 to Plaintiff’s Request No. 1 requesting documents referring to any allegations against Defendants “made 4 by an inmate;” for their failure to notify the Court of safety and security issues concerning documents 5 ordered to be produced in response to Plaintiff’s Requests Nos. 1, 18-31, and 33-38; or for their failure 6 to produce insurance agreements or an affidavit in response to Plaintiff’s Request No. 58. 7 Defendants were provided with an opportunity to be heard on Plaintiff’s request for monetary 8 sanctions; however, Defendants did not file any response. Based on the foregoing, the Court is now 9 prepared to impose sanctions on Defendants pursuant to Rule 37(b)(2) or under the Court’s inherent 10 powers, for failure to comply with the Court’s discovery order. Defendants are required, at this juncture, 11 to show cause in writing within thirty days why sanctions should not be imposed. 12 IV. CONCLUSION AND ORDER 13 Based on the foregoing, IT IS HEREBY ORDERED that: 14 1. 15 Plaintiff’s motion to compel, filed on May 14, 2010, is GRANTED IN PART and DENIED IN PART; 16 2. 17 Plaintiff’s motion to compel further responses to Requests Nos. 1, 18-31, 33-38, and 58 is GRANTED, subject to the instructions and limitations discussed in this order; 18 3. Plaintiff’s motion to compel further responses to Requests Nos. 45 and 49 is DENIED; 19 4. Defendants shall provide Plaintiff with copies of the documents compelled produced 20 herein within forty-five days from the date of service of this order; 21 5. Defendants shall notify the Court within thirty days from the date of service of this order 22 of any continuing belief (with supporting evidence) that disclosure of any documents 23 ordered produced herein will cause safety and security issues; 24 6. Within thirty days of the date of service of this order, Defendants shall show cause in 25 writing why sanctions should not be imposed for failure to comply with the Court’s order 26 of September 25, 2009; and 27 /// 28 /// 9 1 2 7. Defendants’ failure to comply with this order may result in the imposition of sanctions . 3 IT IS SO ORDERED. 4 Dated: 6i0kij November 8, 2010 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10