-GSA (PC) Noble v. Gonzalez, No. 1:2007cv01111 - Document 28 (E.D. Cal. 2011)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART 23 Plaintiff's Motion to Compel Discovery; ORDER for Defendant to Provide Further Discovery Responses Within Forty-Five (45) Days, as Instructed by this Order; and ORDER Holding 24 Motion for Summary Judgment in Abeyance Pending Resolution of Discovery Matters, signed by Magistrate Judge Gary S. Austin on 5/27/2011. (Jessen, A)
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-GSA (PC) Noble v. Gonzalez Doc. 28 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 STEVEN JOSEPH NOBLE IV, 12 Plaintiff, 13 14 1:07-cv-01111-LJO-GSA-PC ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL DISCOVERY (Doc. 23.) vs. LT. V. J. GONZALEZ, 15 ORDER FOR DEFENDANT TO PROVIDE FURTHER DISCOVERY RESPONSES WITHIN FORTY-FIVE DAYS, AS INSTRUCTED BY THIS ORDER Defendant. 16 17 ORDER HOLDING MOTION FOR SUMMARY JUDGMENT IN ABEYANCE PENDING RESOLUTION OF DISCOVERY MATTERS (Doc. 24.) 18 19 / 20 21 I. RELEVANT PROCEDURAL HISTORY 22 Steven Joseph Noble IV ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis 23 with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the original Complaint on July 24 31, 2007. (Doc. 1.) This action now proceeds on the First Amended Complaint filed on February 24, 25 2009, against defendant Lieutenant V. J. Gonzalez (“Defendant”), for violation of Plaintiff’s rights to 26 due process. (Doc. 15.) 27 On May 14, 2010, the Court issued a Discovery/Scheduling Order establishing a deadline of 28 January 14, 2011 for completion of discovery, including motions to compel. (Doc. 21.) On January 19, 1 Dockets.Justia.com 1 2011, Plaintiff filed a motion to compel further discovery responses from Defendant.1 (Doc. 23.) 2 Defendant has not filed an opposition. On March 18, 2011, Defendant filed a motion for summary 3 judgment, which is pending. (Doc. 24.) Plaintiff’s motion to compel is now before the Court. 4 II. PLAINTIFF’S ALLEGATIONS AND CLAIM AGAINST DEFENDANT 5 The events alleged in the First Amended Complaint occurred at North Kern State Prison 6 (“NKSP”) in Delano, California, while Plaintiff was incarcerated there. Plaintiff names Correctional 7 Lieutenant V. J. Gonzalez as the only defendant in this action. 8 Plaintiff alleges that between April 2006 and July 2006 he filed two Form 602 inmate appeals 9 which inadvertently disgruntled and affected numerous prison officials. Both appeals were granted in 10 Plaintiff’s favor. On July 20, 2006, Plaintiff was attacked by several prison guards, in retaliation for 11 filing and litigating the appeals. 12 As a result of the attack, Plaintiff was issued a CDC-115 Rules Violation Report (“RVR”), 13 charged with attempted battery on a peace officer, and placed into administrative segregation (“Ad-Seg”) 14 to await adjudication of the RVR. 15 Plaintiff filed a Citizen’s Complaint under California Penal Code § 832(f) and notified his family 16 about the incident. One of Plaintiff’s family members faxed the Warden of NKSP a copy of Plaintiff’s 17 Citizen’s Complaint. The first Citizen’s Complaint was ignored, and the second one (copy) was denied 18 as untimely, even though under the regulations (CCR § 3391), a Citizen’s Complaint may be filed within 19 twelve months of the alleged misconduct. 20 On September 7, 2006, while still confined in Ad-Seg, Plaintiff was subjected to a disciplinary 21 hearing presided over by Lt. Gonzalez who acted as the Senior Hearing Officer. Plaintiff sought to call 22 witnesses and introduce documentary evidence and a video recording at the hearing. However, Lt. 23 Gonzalez refused to allow Plaintiff to call any witnesses, present evidence, or speak on his own behalf. 24 Lt. Gonzalez arbitrarily pronounced Plaintiff guilty and assessed penalties upon Plaintiff, causing a 25 major disruption in Plaintiff’s environment. 26 /// 27 1 28 Based on the mailbox rule, the Court deems the motion to compel to be timely. Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009). 2 1 Plaintiff was assessed forfeiture of one hundred fifty days of good time credits, and fourteen 2 unfavorable behavior points were added to Plaintiff’s classification score, causing him to be ineligible 3 for Level III facility housing where Plaintiff received daily access to yard and/or dayroom activities, 4 showers, phones, library, chapel services, special purchase items, and regular Friday-through-Sunday 5 visiting. Plaintiff was also assessed a six-month Security Housing Unit (“SHU”) term in the Ad-Seg 6 unit, where he was deprived of even the minimum amount of personal property allowed by inmates in 7 the regular SHU. Plaintiff was also assigned to a lower work privilege group category, and his access 8 to work, school, and vocational activities was completely taken away. 9 On November 20, 2006, Plaintiff was adversely transferred from NKSP to High Desert State 10 Prison (“HDSP”), a Level IV facility located over 350 miles from his family. At HDSP, all of Plaintiff’s 11 personal property was withheld from him until January 12, 2007, and even then a substantial amount was 12 confiscated by HDSP officials, including a radio, headphone accessories, clock, clothing, books, 13 magazines, photos, food items, and cosmetics – all items which were authorized on a Level III facility 14 but not on a Level IV facility. Plaintiff remained housed on a Level IV facility from November 20, 2006 15 until January 3, 2008. During this period, Plaintiff was only permitted sixteen two-hour out-of-cell 16 exercise periods, due to race-based lockdowns. Plaintiff spent virtually twenty four hours a day confined 17 to a cell, except for the exercise periods and approximately eight one-hour dayroom periods. Plaintiff’s 18 visiting privileges were also limited. 19 The hardships described above were imposed upon Plaintiff in spite of the fact that on November 20 17, 2006, officials were ordered to “reissue/rehear” the RVR, based on the due process violations that 21 occurred at the September 7, 2006 disciplinary hearing presided over by defendant Lt. Gonzalez. 22 Plaintiff did not receive a rehearing until June 13, 2007, eleven months after the incident, and only then 23 because Plaintiff filed two habeas corpus petitions in state courts. Prison officials have admitted that 24 the findings of the RVR were not appropriate or in accordance with the rules, regulations and policies 25 of NKSP. 26 Due Process Claim 27 Plaintiff brings a due process claim against Defendant. The Due Process Clause protects 28 prisoners from being deprived of liberty without due process of law. Wolff v. McDonnell, 418 U.S. 539, 3 1 556 (1974). In order to state a cause of action for deprivation of procedural due process, a plaintiff must 2 first establish the existence of a liberty interest for which the protection is sought. Liberty interests may 3 arise from the Due Process Clause itself or from state law. Hewitt v. Helms, 459 U.S. 460, 466-68 4 (1983). With respect to liberty interests arising from state law, the existence of a liberty interest created 5 by prison regulations is determined by focusing on the nature of the deprivation. Sandin v. Conner, 515 6 U.S. 472, 481-84 (1995). Liberty interests created by state law or prison regulations are generally 7 limited to freedom from restraint which “imposes atypical and significant hardship on the inmate in 8 relation to the ordinary incidents of prison life.” Id. at 484. 9 “Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of 10 rights due a defendant in such proceedings does not apply.” Wolff, 418 U.S. at 556. With respect to 11 prison disciplinary proceedings, the minimum procedural requirements that must be met are: (1) written 12 notice of the charges; (2) at least 24 hours between the time the prisoner receives written notice and the 13 time of the hearing, so that the prisoner may prepare his defense; (3) a written statement by the fact 14 finders of the evidence they rely on and reasons for taking disciplinary action; (4) the right of the 15 prisoner to call witnesses in his defense, when permitting him to do so would not be unduly hazardous 16 to institutional safety or correctional goals; and (5) legal assistance to the prisoner where the prisoner 17 is illiterate or the issues presented are legally complex. Id. at 563-71. As long as the five minimum 18 Wolff requirements are met, due process has been satisfied. Walker v. Sumner, 14 F.3d 1415, 1420 (9th 19 Cir. 1994). 20 III. MOTION TO COMPEL 21 Plaintiff requests an order compelling Defendant to produce documents in response to Plaintiff’s 22 Requests for Production and to make further responses to Plaintiff’s Interrogatories. Plaintiff served the 23 discovery requests upon Defendant on October 31, 2010. Motion, Doc. 23 at 1. Defendant served the 24 responses at issue on or about December 15, 2010. Id. at Exh. 1. 25 Pursuant to Rule 37(a) of the Federal Rules of Civil Procedure, a party propounding discovery 26 may seek an order compelling disclosure when an opposing party has failed to respond or has provided 27 evasive or incomplete responses. Fed. R. Civ. P. 37(a)(3)(B). "[A]n evasive or incomplete disclosure, 28 answer, or response is to be treated as a failure to disclose, answer, or respond.” Fed. R. Civ. P. 37(a)(4). 4 1 It is well established that a failure to object to discovery requests within the time required constitutes 2 a waiver of any objection.” Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th 3 Cir.1992) (citing Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir.1981)). The moving party bears the 4 burden of demonstrating “actual and substantial prejudice” from the denial of discovery. See Hallett v. 5 Morgan, 296 F.3d 732, 751 (9th Cir. 2002) (citations omitted). 6 Under Rule 26(b), “[u]nless otherwise limited by court order, the scope of discovery is as 7 follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's 8 claim or defense — including the existence, description, nature, custody, condition, and location of any 9 documents or other tangible things and the identity and location of persons who know of any 10 discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject 11 matter involved in the action. “Relevant information need not be admissible at the trial if the discovery 12 appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). 13 A. 14 Pursuant to Rule 33, "[a]n interrogatory may relate to any matter that may be inquired into under 15 Rule 26(b)." Fed. R. Civ. P. 33(a)(2). Plaintiff requests an order compelling Defendant to respond to 16 his Interrogatories 1, 3-6, 8-13, and 23-24. The Court shall address each Interrogatory separately. Interrogatories 17 Interrogatory 1. Identify any document related to any complaint, grievance, criticism, censure, reprimand, rebuke, directed at the Defendant as listed in the complaint prior to or subsequent to the incident giving rise to this proceeding. Defendant’s Response. 21 Objection as said request calls for confidential/privileged information and is in violation of Penal Code § 832 and § 837 et seq. 22 Plaintiff argues that the discovery sought is relevant because he seeks the identity of documents 23 containing information that may be relevant to Defendant’s credibility and documents pertaining to 24 particular kinds of complaints and allegations about Defendant. Plaintiff also argues that Defendant’s 25 counsel is asserting privilege in a generalized fashion. 18 19 20 26 Defendant objects under §§ 832 and 837 of the California Penal Code, on the grounds that the 27 records are confidential and privileged. Section 837 is inapplicable to this matter. Section 832.7 28 provides, “Peace officer or custodial officer personnel records and records maintained by any state or 5 1 local agency . . ., or information obtained from these records, are confidential and shall not be disclosed 2 in any criminal or civil proceeding, [with some exceptions].” Cal.Penal Code § 832.7. 3 “Questions of privilege that arise in the course of the adjudication of federal rights are ‘governed 4 by the principles of the common law as they may be interpreted by the courts of the United States in the 5 light of reason and experience.’ ” United States v. Zolin, 491 U.S. 554, 562, 109 S.Ct. 2619, 2625 6 (1989) (quoting Federal Rule of Evidence 501). Despite claims of privilege, personnel files are 7 discoverable in federal question cases. Garrett v. City and County of San Francisco, 818 F.2d 1515, 8 1519 n. 6 (9th Cir. 1987) (citations omitted). While this Court may give some weight to privacy rights 9 protected by state statutes, the “ultimate responsibility for deciding how much weight to ascribe to such 10 interests, and how that weight compares with the significance of competing interests, must reside with 11 the federal courts.” Kelly v. City of San Jose, 114 F.R.D. 653, 656 (N.D.Cal. 1987). 12 Defendant’s objection is overruled. The Court will allow Plaintiff to discover information about 13 past records of similar claims against the Defendant. Defendant is required to serve a response to 14 Interrogatory 1 upon Plaintiff within forty-five days by identifying any document within Defendant’s 15 possession, custody or control, related to any complaint, grievance, criticism, censure, reprimand, or 16 rebuke directed against Lieutenant V. J. Gonzalez, concerning incidents of due process violations 17 occurring prior to September 7, 2006, the date of the disciplinary hearing at issue in Plaintiff’s 18 Complaint, but no further back than September 7, 2001. No objections are permitted.2 If the answer to 19 the interrogatory contains confidential information, Defendant shall instead submit the response to the 20 Court under seal for in camera review, and notify Plaintiff that he has done so, within forty-five days. 21 If Defendant cannot answer the interrogatory, he must explain in writing why he is unable to answer. 22 /// 23 /// 24 /// 25 /// 26 27 28 2 “Any ground [for objecting] not stated in a timely fashion is waived unless the court, for good cause, excuses the failure.” Fed. R. Civ. P. 33(b)(4). 6 1 Interrogatory 3. State the number of years of experience and training you have in diagnosing emotional and mental disorders which enable you to determine that an inmate who is a participant in the Mental Health Services Delivery System at the CCCMS level of care alleged behavior was not deemed bizarre, unusual or uncharacteristic. (See RVR Log #A-06-07-0016 pg. 1 of 2.) Defendant’s Response. Objection as said request is argumentative and not likely to lead to admissible or discoverable evidence. 2 3 4 5 6 7 Plaintiff argues that the discovery sought is relevant because the Defendant, by his signature, 8 adopted or approved a written statement to the effect that Plaintiff was a participant in the Mental Health 9 Services Delivery System at the CCCMS level of care, but his alleged behavior was not deemed “bizarre, 10 unusual or uncharacteristic.” 11 Defendant objects on the grounds that the request is argumentative and not likely to lead to 12 admissible or discoverable evidence. Defendant’s objection is sustained. No further response by 13 Defendant to Interrogatory 3 is required. 14 Interrogatory 4. 15 State the name of the facility-employed mental health care staff who deemed inmate Noble’s alleged behavior not bizarre, unusual or uncharacteristic. (RVR Log # A-06-07-0016 pg. 1 of 2.) 16 17 Defendant’s Response. Objection, as said request mischaracterizes the evidence, thus as phrased, defendant cannot respond. 18 Defendant objects on the grounds that the request mischaracterizes the evidence. Plaintiff 19 20 responds that the discovery sought is relevant and non-privileged. Defendant’s objection is overruled. Defendant has not specified how Interrogatory 4 21 mischaracterizes evidence. Objections to interrogatories should be sufficiently specific that the court 22 may, in considering the objections with the interrogatories propounded, ascertain therefrom their claimed 23 objectionable character, and general objections to interrogatories are improper. Wolf v. United Air 24 Lines, 9 F.R.D. 271, 272 (M.D.Pa.1949). Defendant is required to serve a response to Interrogatory 4 25 upon Plaintiff within forty-five days by stating the name of the facility-employed mental health care staff 26 who deemed inmate Noble’s alleged behavior not bizarre, unusual or uncharacteristic. Defendant should 27 refer to RVR Log # A-06-07-0016 g. 1 of 2 as directed in the interrogatory. No objections are permitted. 28 If Defendant cannot answer the interrogatory, he must explain in writing why he is unable to answer. 7 1 Interrogatory 5. State the name of the facility-employed mental health care staff who evaluated inmate Noble to determine whether or not his mental illness contributed to his alleged misbehavior. Defendant’s Response. 4 Objection as said request mischaracterizes the evidence, thus as phrased, defendant cannot respond. 5 Defendant objects on the grounds that the request mischaracterizes the evidence. Plaintiff 2 3 6 responds that the discovery sought is relevant and non-privileged. 7 Defendant’s objection is overruled. Defendant has not specified how Interrogatory 5 8 mischaracterizes evidence. Objections to interrogatories should be sufficiently specific that the court 9 may, in considering the objections with the interrogatories propounded, ascertain therefrom their claimed 10 objectionable character, and general objections to interrogatories are improper. Wolf, 9 F.R.D. at 272. 11 Defendant is required to serve a response to Interrogatory 5 upon Plaintiff within forty-five days by 12 stating the name of the facility-employed mental health care staff who evaluated inmate Noble to 13 determine whether or not his mental illness contributed to his alleged misbehavior. No objections are 14 permitted. If Defendant cannot answer the interrogatory, he must explain in writing why he is unable 15 to answer. 16 Interrogatory 6. 17 Identify any and all Director’s Rules, Regulations, local policies governing “stipulated testimony” during disciplinary proceedings. 18 Defendant’s Response. 19 Plaintiff argues that Defendant’s response is evasive and does not direct Plaintiff to the 20 information sought. The Court finds Defendant’s response to be inadequate. Defendant’s reference to 21 Title 15, § 3312 - § 3322 is an incomplete cite and does not sufficiently direct Plaintiff to any rule, 22 regulation or policy. Defendant is required to serve a further response to Interrogatory 6 upon Plaintiff 23 within forty-five days by sufficiently identifying any and all Director’s Rules, Regulations, and local 24 policies governing “stipulated testimony” during disciplinary proceedings. No objections are permitted. 25 If Defendant cannot answer the interrogatory, he must explain in writing why he is unable to answer. 26 /// 27 /// 28 /// See Title 15 § 3312 - § 3322. 8 1 Interrogatory 8. 2 3 State the findings and actions taken concerning the Citizen’s Complaint filed by inmate Noble, at the time it was submitted for your review at, or before the disciplinary hearing. (See RVR Part C pg. 2 of 5.) 4 Defendant’s Response. 5 Plaintiff argues that Defendant’s response is evasive, Defendant’s counsel has failed to make a 6 reasonable inquiry into readily obtainable information, and Defendant’s assertion of lack of personal 7 knowledge is not excused because he has not made a full investigation. I have no current recollection. 8 Defendant responds that he has no current recollection. This response is inadequate. The party 9 answering interrogatories must furnish “such information as is available to the party.” Fed. R. Civ. P. 10 33(a). If an appropriate interrogatory is propounded, the answering party is required to give the 11 information available to him, if any, through his attorney, investigators employed by him or on his 12 behalf, or other agents or representatives, whether personally known to the answering party or not; if the 13 answering party lacks necessary information to make a full, fair, and specific answer to the interrogatory, 14 it should so state under oath and should set forth in detail efforts made to obtain the information. Miller 15 v. Doctor's General Hospital, 76 F.R.D. 136, 140 (W.D.Okla. 1977). If a responding party is unable to 16 supply requested information, “the party may not simply refuse to answer, but must state under oath that 17 he is unable to provide the information and ‘set forth the efforts he used to obtain the information.’ ” 18 Hansel v. Shell Oil Corp., 169 F.R.D. 303, 305 (E.D.Pa.1996) (quoting Milner v. National School of 19 Health Tech., 73 F.R.D. 628, 632 (E.D.Pa.1977)). 20 Defendant’s response is inadequate. Defendant has not set forth the efforts, if any, he used to 21 obtain the information requested by Plaintiff. Defendant is required to serve a further response to 22 Interrogatory 8 upon Plaintiff within forty-five days, after making a good-faith effort to obtain the 23 information available to him, through his attorney or through investigators, other agents, or 24 representatives. No objections are permitted. If Defendant cannot make a further response to the 25 interrogatory, he must explain in writing why he is unable to answer. 26 /// 27 /// 28 /// 9 1 Interrogatory 9. 2 Identify the status of the search for inmate Prewitt’s location. (See RVR Part C Pg. 2 of 5.) 3 Defendant’s Response. 4 Plaintiff argues that Defendant’s response is evasive, Defendant’s counsel has failed to make a 5 reasonable inquiry into readily obtainable information, and Defendant’s assertion of lack of personal 6 knowledge is not excused because he has not made a full investigation. I have no current recollection. 7 Defendant responds that he has no current recollection. The party answering interrogatories must 8 furnish “such information as is available to the party.” Fed. R. Civ. P. 33(a); Miller, 76 F.R.D. at 140; 9 Hansel, 169 F.R.D. at 305. 10 Defendant’s response is inadequate. Defendant has not set forth the efforts, if any, he used to 11 obtain the information requested by Plaintiff. Defendant is required to serve a further response to 12 Interrogatory 9 upon Plaintiff within forty-five days, after making a good-faith effort to obtain the 13 information available to him, through his attorney or through investigators, other agents, or 14 representatives. No objections are permitted. If Defendant cannot make a further response to the 15 interrogatory, he must explain in writing why he is unable to answer. 16 Interrogatory 10. State the last known or current address of inmate Prewitt. 17 Defendant’s Response. 18 Plaintiff argues that Defendant’s response is evasive, Defendant’s counsel has failed to make a 19 reasonable inquiry into readily obtainable information, and Defendant’s assertion of lack of personal 20 knowledge is not excused because he has not made a full investigation. Unknown. 21 Defendant responds that the information is “unknown.” The party answering interrogatories 22 must furnish “such information as is available to the party.” Fed. R. Civ. P. 33(a); Miller, 76 F.R.D. at 23 140; Hansel, 169 F.R.D. at 305. 24 Defendant’s response is inadequate. Defendant has not set forth the efforts, if any, he used to 25 obtain the information requested by Plaintiff. Defendant is required to serve a further response to 26 Interrogatory 10 upon Plaintiff within forty-five days, after making a good-faith effort to obtain the 27 information available to him, through his attorney or through investigators, other agents, or 28 /// 10 1 representatives. No objections are permitted. If Defendant cannot make a further response to the 2 interrogatory, he must explain in writing why he is unable to answer. 3 Interrogatory 11. 4 Identify the names, title and address of the custodian of the information requested in Interrogatories # 9 and 10. 5 Defendant’s Response. 6 Plaintiff argues that Defendant’s response is evasive, Defendant’s counsel has failed to make a 7 reasonable inquiry into readily obtainable information, and Defendant’s assertion of lack of personal 8 knowledge is not excused because he has not made a full investigation. Unknown. 9 Defendant responds that the information is “unknown.” The party answering interrogatories 10 must furnish “such information as is available to the party.” Fed. R. Civ. P. 33(a); Miller, 76 F.R.D. at 11 140; Hansel, 169 F.R.D. at 305. 12 Defendant’s response is inadequate. Defendant has not set forth the efforts, if any, he used to 13 obtain the information requested by Plaintiff. Defendant is required to serve a further response to 14 Interrogatory 11 upon Plaintiff within forty-five days, after making a good-faith effort to obtain the 15 information available to him, through his attorney or through investigators, other agents, or 16 representatives. No objections are permitted. If Defendant cannot make a further response to the 17 interrogatory, he must explain in writing why he is unable to answer. 18 Interrogatory 12. 19 20 Defendant’s Response. Identify all staff members that were subjected to a video taped interview in relation to the incident underlying the RVR Log #A-06-07-0016 dated July 20, 2006. Objection, as said request is irrelevant. I have no current recollection. 21 Plaintiff argues that Defendant’s response is evasive, Defendant’s counsel has failed to make a 22 reasonable inquiry into readily obtainable information, and Defendant’s assertion of lack of personal 23 knowledge is not excused because he has not made a full investigation. 24 Defendant’s response is inadequate. With regard to Defendant’s objection on the ground that 25 the request is irrelevant, Defendant has not met his burden of establishing lack of relevancy by showing 26 specifically how the interrogatory is not relevant. Vazquez-Fernandez v. Cambridge College, Inc., 269 27 F.R.D. 150, 156-57 (D.Puerto Rico 2010). With regard to Defendant’s response that he has no current 28 11 1 recollection, Defendant has not set forth the efforts, if any, he used to obtain the information requested 2 by Plaintiff. Defendant’s objection is overruled, and Defendant is required to serve a further response 3 to Interrogatory 12 upon Plaintiff within forty-five days, after making a good-faith effort to obtain the 4 information available to him, through his attorney or through investigators, other agents, or 5 representatives. No objections are permitted. If Defendant cannot make a further response to the 6 interrogatory, he must explain in writing why he is unable to answer. 7 Interrogatory 13. 8 Identify all inmates at North Kern State Prison that were subjected to a video taped interview in relation to the incident underlying the RVR Log #A-06-07-0016 dated July 20, 2006. 9 10 Defendant’s Response. Objection, as said request is irrelevant. Without waiving said objection, Inmate Noble. 11 Plaintiff argues that Defendant’s response is evasive, Defendant’s counsel has failed to make a 12 reasonable inquiry into readily obtainable information, and Defendant’s assertion of lack of personal 13 knowledge is not excused because he has not made a full investigation. 14 Defendant has answered "Inmate Noble" in response to Interrogatory 13. Plaintiff has not 15 explained why this response is evasive or why Defendant should be required to make an investigation. 16 Therefore, no further response by Defendant to Interrogatory 13 is required. 17 Interrogatory 23. 18 19 Identify any document related to any complaint, reprimand, rebuke, directed at the defendant as listed in the complaint prior to or subsequent to the incident giving rise to this proceeding, concerning allegations of the Defendant violating any inmate’s due process rights during a disciplinary hearing. 20 21 Defendant’s Response. Objection, as said request calls for privileged information. See Penal Code § 832 and § 837 et seq. 22 Plaintiff argues that Defendant’s counsel is asserting privilege in a generalized fashion, and that 23 the discovery sought is relevant because he seeks the identity of documents containing information that 24 may be relevant to the Defendant’s credibility and documents pertaining to particular kinds of 25 complaints and allegations about the Defendant. 26 Defendant objects under §§ 832 and 837 of the California Penal Code, on the ground that the 27 information is privileged. As discussed above at Interrogatory 1, personnel files are discoverable in 28 federal question cases despite claims of privilege, Garrett, 818 F.2d at 1519 n. 6, and the “ultimate 12 1 responsibility for deciding how much weight to ascribe to [privacy rights protected by state statutes], and 2 how that weight compares with the significance of competing interests, must reside with the federal 3 courts.” Kelly, 114 F.R.D. at 656. The Court will allow Plaintiff to discover information about past 4 records of similar claims against the Defendant. Therefore, Defendant is required to serve a response 5 to Interrogatory 23 upon Plaintiff within forty-five days by identifying any document within Defendant’s 6 possession, custody or control, related to any complaint, grievance, criticism, censure, reprimand, or 7 rebuke directed against Lieutenant V. J. Gonzalez, concerning incidents of due process violations 8 occurring prior to September 7, 2006, but no further back than September 7, 2001. No objections are 9 permitted. If the answer to the interrogatory contains privileged information, Defendant shall instead 10 submit the response to the Court under seal for in camera review, and notify Plaintiff that he has done 11 so, within forty-five days. If Defendant cannot answer the interrogatory, he must explain in writing why 12 he is unable to answer. 13 Interrogatory 24. State the definition of “Stipulated Testimony.” 14 Defendant’s Response. 15 Plaintiff argues that Defendant’s response is evasive and does not direct Plaintiff to the 16 17 18 Objection, as said request calls for a legal conclusion. information sought. Defendant objects on the ground that the request calls for a legal conclusion. Defendant’s objection is sustained. No further response by Defendant to Interrogatory 24 is required. 19 B. 20 Pursuant to Rule 34(a) of the Federal Rules of Civil Procedure, “[a] party may serve on any other 21 party a request within the scope of Rule 26(b), to produce and permit the requesting party . . . to inspect, 22 copy, test, or sample . . . any designated documents or electronically stored information . . . in the 23 responding party's possession, custody or control.” Fed. R. Civ. P. 34(a)(1)(A). “[A] party need not 24 have actual possession of documents to be deemed in control of them.” Clark v. Vega Wholesale Inc., 25 181 F.R.D. 470, 472 (D.Nev. 1998) quoting Estate of Young v. Holmes, 134 F.R.D. 291, 294 (D.Nev. 26 1991). “A party that has a legal right to obtain certain documents is deemed to have control of the 27 documents.” Clark 181 F.R.D. at 472. Under Rule 34(b), the party to whom the request is directed must 28 respond in writing that inspection and related activities will be permitted as requested, or state an Request for Production of Documents 13 1 objection to the request, including the reasons. Fed. R. Civ. P. 34(b)(2). Also, “[a] party must produce 2 documents as they are kept in the usual course of business or must organize and label them to correspond 3 to the categories in the request.” Fed. R. Civ. P. 34(b)(2)(E)(I). 4 Rule 37(a)(3)(B) empowers a propounding party to bring a motion to compel discovery 5 responses: “A party seeking discovery may move for an order compelling an answer, designation, 6 production, or inspection. This motion may be made if a party fails to respond that inspection will be 7 permitted -- or fails to permit inspection -- as requested under Rule 34." Fed. R. Civ. P. 37(a)(3)(B)(iv). 8 The failure to respond to document requests “is not excused on the ground that the discovery sought was 9 objectionable, unless the party failing to act has a pending motion for a protective order under Rule 10 11 12 26©.” Fed. R. Civ. P. 37(d)(2). Plaintiff requests an order compelling Defendant to respond to his Requests for Production of Documents 1-5, 8-18, and 20-21. The Court shall address each Request separately. 13 Request 1. 14 The Citizen’s Complaint filed by inmate Noble which the Investigative Employee procured from the Appeals Coordinator (see RVR Part C pg 2 of 5, I.E. notes) 15 16 Defendant’s Response. These responding defendants will provide all non-privileged information in RVR-06-07-0016. 17 Plaintiff asserts that to date, Defendant’s counsel has failed to permit inspection of the documents 18 requested. Because Defendant has agreed to provide all non-privileged information pursuant to this 19 request, Defendant’s failure to provide any documents acts as an objection on the ground that all of the 20 information requested is privileged. 21 As discussed above at Interrogatory 1, “[q]uestions of privilege that arise in the course of the 22 adjudication of federal rights are ‘governed by the principles of the common law as they may be 23 interpreted by the courts of the United States in the light of reason and experience.’ ” Zolin, 491 U.S. 24 at 562; see Kelly, 114 F.R.D. at 656. 25 Defendant has not specified why a copy of Plaintiff’s Citizen’s Complaint is privileged 26 information. Therefore, Defendant is required to serve Plaintiff with a copy of the Citizen’s Complaint 27 requested in Request 1, within forty-five days. No additional objections are permitted. If the document 28 produced contains privileged information, Defendant shall instead submit it to the Court under seal for 14 1 in camera review and notify Plaintiff that he has done so, within forty-five days. If Defendant cannot 2 provide a copy of the document requested, he must explain in writing why he is unable to do so. 3 Defendant is reminded that he need not have actual possession of documents to be deemed in control 4 of them, and a party that has a legal right to obtain certain documents is deemed to have control of the 5 documents. Clark, 181 F.R.D. at 472. 6 Request 2. The video taped interview with inmate Noble which was conducted by Correctional Lieutenant Steadman. (See RVR Part C pg. 3 of 5.) 7 8 Defendant’s Response. These responding defendants will provide all non-privileged information in RVR-06-07-0016. 9 Plaintiff asserts that to date, Defendant’s counsel has failed to permit inspection of the video 10 taped interview requested. Because Defendant has agreed to provide all non-privileged information 11 pursuant to this request, Defendant’s failure to provide any discovery acts as an objection on the ground 12 that all of the information requested is privileged. 13 Defendant has not specified why a copy of Plaintiff’s video taped interview is privileged 14 information. See Zolin, 491 U.S. at 562; also see Kelly, 114 F.R.D. at 656. Therefore, Defendant is 15 required to serve Plaintiff with a reproduction of the video interview requested in Request 2, or a written 16 transcript of the video interview if any, within forty-five days. No additional objections are permitted. 17 If the video or transcript contains privileged information, Defendant shall instead submit it to the Court 18 under seal for in camera review and notify Plaintiff that he has done so, within forty-five days. If 19 Defendant cannot provide a copy of the interview requested, he must explain in writing why he is unable 20 to do so. Defendant is reminded that he need not have actual possession of [discovery materials] to be 21 deemed in control of them, and a party that has a legal right to obtain certain [discovery materials] is 22 deemed to have control of them. Clark, 181 F.R.D. at 472. 23 Request 3. 24 Statements given by each and every one of the inmates interviewed by Correctional Lieutenant Steadman. (See RVR Part C pg. 3 of 5.) 25 26 Defendant’s Response. These responding defendants will provide all non-privileged information in RVR-06-07-0016. 27 Plaintiff asserts that to date, Defendant’s counsel has failed to permit inspection of the documents 28 requested. Because Defendant has agreed to provide all non-privileged information pursuant to this 15 1 request, Defendant’s failure to provide any documents acts as an objection on the ground that all of the 2 information requested is privileged. 3 Defendant has not specified why the statements requested are privileged information. See Zolin, 4 491 U.S. at 562; also see Kelly, 114 F.R.D. at 656. Therefore, Defendant is required to serve upon 5 Plaintiff copies of the statements requested in Request 3, within forty-five days. No additional 6 objections are permitted. If any of the statements contain privileged information, Defendant shall instead 7 submit those statements to the Court under seal for in camera review and notify Plaintiff that he has 8 done so, within forty-five days. If Defendant cannot provide copies of the statements requested, he must 9 explain in writing why he is unable to do so. Defendant is reminded that he need not have actual 10 possession of documents to be deemed in control of them, and a party that has a legal right to obtain 11 certain documents is deemed to have control of the documents. Clark, 181 F.R.D. at 472. 12 Request 4. 13 The video taped interviews with staff members conducted by Correctional Lieutenant Steadman in relation to Rules Violation Report (Log # A-06-07-0016.) 14 15 Defendant’s Response. These responding defendants will provide all non-privileged information in RVR-06-07-0016. 16 Plaintiff asserts that to date, Defendant’s counsel has failed to permit inspection of the video 17 taped interviews requested. Because Defendant has agreed to provide all non-privileged information 18 pursuant to this request, Defendant’s failure to provide any documents acts as an objection on the ground 19 that all of the information requested is privileged. 20 Defendant has not specified why the interviews requested are privileged information. See Zolin, 21 491 U.S. at 562; also see Kelly, 114 F.R.D. at 656. Therefore, Defendant is required to provide Plaintiff 22 with reproductions of the video taped interviews requested in Request 4, or written transcripts if any, 23 within forty-five days. No additional objections are permitted. If any of the interviews produced contain 24 private or privileged information, Defendant shall instead submit those interviews to the Court under 25 seal for in camera review and notify Plaintiff that he has done so, within forty-five days. If Defendant 26 cannot provide copies of the interviews requested, he must explain in writing why he is unable to do so. 27 Defendant is reminded that he need not have actual possession of [discovery materials] to be deemed 28 /// 16 1 in control of them, and a party that has a legal right to obtain certain [discovery materials] is deemed to 2 have control of them. Clark, 181 F.R.D. at 472. 3 Request 5. Digital images (photographs items #JW-001 through JW-012) (See Crime/Incident Report Part A1 - Supplement, pg. 3 of 8.) 4 5 Defendant’s Response. These responding defendants will provide all non-privileged information in RVR-06-07-0016. 6 Plaintiff asserts that to date, Defendant’s counsel has failed to permit inspection of the images 7 requested. Because Defendant has agreed to provide all non-privileged information pursuant to this 8 request, Defendant’s failure to provide any documents acts as an objection on the ground that all of the 9 information requested is privileged. 10 Defendant has not specified why the digital images requested are privileged information. See 11 Zolin, 491 U.S. at 562; also see Kelly, 114 F.R.D. at 656. Therefore, Defendant is required to serve 12 upon Plaintiff paper copies of the images requested in Request 5, within forty-five days. No additional 13 objections are permitted. Defendant shall refer to Crime/Incident Report Part A1-Supplement, pg. 3 of 14 8 as instructed by Plaintiff’s request. If any of the images contain privileged information, Defendant 15 shall instead submit paper copies of those images to the Court under seal for in camera review and notify 16 Plaintiff that he has done so, within forty-five days. If Defendant cannot provide copies of the images 17 requested, he must explain in writing why he is unable to do so. Defendant is reminded that he need not 18 have actual possession of [discovery materials] to be deemed in control of them, and a party that has a 19 legal right to obtain certain [discovery materials] is deemed to have control of them. Clark, 181 F.R.D. 20 at 472. 21 Request 8. 22 23 24 Objection, as this request calls for privileged information, is not relevant nor likely to lead to admissible or discoverable evidence. No documents will be produced. 25 Plaintiff argues that the documents requested are within the discovery scope of Rule 26(b)(1) and 26 Defendant’s Response. July 20, 2006, “Post Orders” for Correctional Officer J. Cornett. are relevant to the subject matter involved in this action. 27 Defendant objects to this request on the grounds that the request calls for privileged and 28 irrelevant information. Defendant has not specified why the Post Orders are irrelevant or unlikely to lead 17 1 to admissible or discoverable evidence. Therefore, Defendant is required to submit the Post Orders 2 requested in Request 8 to the Court under seal for in camera review and notify Plaintiff that he has done 3 so, within forty-five days. Defendant is reminded that he need not have actual possession of documents 4 to be deemed in control of them, and a party that has a legal right to obtain certain documents is deemed 5 to have control of the documents. Clark, 181 F.R.D. at 472. 6 Request 9. 7 8 9 Objection, as this request calls for privileged information, is not relevant nor likely to lead to admissible or discoverable evidence. No documents will be produced. 10 Plaintiff argues that the documents requested are within the discovery scope of Rule 26(b)(1) and 11 Defendant’s Response. July 20, 2006, “Post Orders” for Correctional Officer C. Lamb. are relevant to the subject matter involved in this action. 12 Defendant objects to this request on the grounds that the request calls for privileged and 13 irrelevant information. Defendant has not specified why the Post Orders are irrelevant or unlikely to lead 14 to admissible or discoverable evidence. Therefore, Defendant is required to submit the Post Orders 15 requested in Request 9 to the Court under seal for in camera review and notify Plaintiff that he has done 16 so, within forty-five days. Defendant is reminded that he need not have actual possession of documents 17 to be deemed in control of them, and a party that has a legal right to obtain certain documents is deemed 18 to have control of the documents. Clark, 181 F.R.D. at 472. 19 Request 10. 20 21 22 Objection, as this request calls for privileged information, is not relevant nor likely to lead to admissible or discoverable evidence. No documents will be produced. 23 Plaintiff argues that the documents requested are within the discovery scope of Rule 26(b)(1) and 24 Defendant’s Response. July 20, 2006, “Post Orders” for Correctional Officer M. Doeling. are relevant to the subject matter involved in this action. 25 Defendant objects to this request on the grounds that the request calls for privileged and 26 irrelevant information. Defendant has not specified why the Post Orders are irrelevant or unlikely to lead 27 to admissible or discoverable evidence. Therefore, Defendant is required to submit the Post Orders 28 requested in Request 10 to the Court under seal for in camera review and notify Plaintiff that he has 18 1 done so, within forty-five days. Defendant is reminded that he need not have actual possession of 2 documents to be deemed in control of them, and a party that has a legal right to obtain certain documents 3 is deemed to have control of the documents. Clark, 181 F.R.D. at 472. 4 Request 11. 5 6 7 Objection, as this request calls for privileged information, is not relevant nor likely to lead to admissible or discoverable evidence. No documents will be produced. 8 Plaintiff argues that the documents requested are within the discovery scope of Rule 26(b)(1) and 9 Defendant’s Response. Notice given to Representative of the local chapter for the bargaining Unit 6 employees. (See Crime/Incident Report Part A1-Supplement, pg. 4 of 8.) are relevant to the subject matter involved in this action. 10 11 Defendant objects on the grounds that this request calls for privileged information and is not relevant or likely to lead to admissible or discoverable evidence. 12 Defendant’s objection is sustained. The Court finds that the document(s) requested are not 13 relevant to the claims or defenses in this action. Therefore, Defendant is not required to produce any 14 documents in response to Request 11. 15 Request 12. 16 17 Copy of inquiry/investigation conducted by Correctional Lieutenant Steadman into allegations made by inmate Noble concerning staff misconduct, which was forwarded to the Warden of North Kern State Prison. (See RVR Part C Pg 3 of 5.) 18 19 Defendant’s Response. These responding defendants will provide all non-privileged information in RVR-06-07-0016. 20 Plaintiff asserts that to date, Defendant’s counsel has failed to permit inspection of the documents 21 requested. Because Defendant has agreed to provide all non-privileged information pursuant to this 22 request, Defendant’s failure to provide any documents acts as an objection on the grounds that all of the 23 information requested is privileged. 24 Defendant is required to submit a copy of the records requested in Request 12 to the Court under 25 seal for in camera review and notify Plaintiff that he has done so, within forty-five days. No additional 26 objections are permitted. If Defendant cannot provide copies of the records requested, he must explain 27 in writing why he is unable to do so. Defendant is reminded that he need not have actual possession of 28 /// 19 1 documents to be deemed in control of them, and a party that has a legal right to obtain certain documents 2 is deemed to have control of the documents. Clark, 181 F.R.D. at 472. 3 Request 13. 4 Written description of inquiry/investigation conducted by Correctional Lieutenant Steadman into allegations made by inmate Noble concerning staff misconduct, which was forwarded to the Warden of North Kern State Prison. 5 6 Defendant’s Response. These responding defendants will provide all non-privileged information in RVR-06-07-0016. 7 Plaintiff asserts that to date, Defendant’s counsel has failed to permit inspection of the documents 8 requested. Because Defendant has agreed to provide all non-privileged information pursuant to this 9 request, Defendant’s failure to provide any documents acts as an objection on the ground that all of the 10 information requested is privileged. 11 Defendant is required to submit a copy of the document requested in Request 13, to the Court 12 under seal for in camera review and notify Plaintiff that he has done so, within forty-five days. No 13 additional objections are permitted. If Defendant cannot provide copies of the document(s) requested, 14 he must explain in writing why he is unable to do so. Defendant is reminded that he need not have 15 actual possession of documents to be deemed in control of them, and a party that has a legal right to 16 obtain certain documents is deemed to have control of the documents. Clark, 181 F.R.D. at 472. 17 Request 14. 18 19 20 21 Objection, as this request calls for privileged information, is not relevant nor likely to lead to admissible or discoverable evidence. See California Penal Code § 832 et seq. 22 Plaintiff argues that the documents requested are within the discovery scope of Rule 26(b)(1) and 23 24 25 Defendant’s Response. Records regarding Correctional Officer J. Cornett maintained in C.D.C.R. files, including: Adverse Action Files; Formal Adverse Action Files; Internal Affairs Files at North Kern State Prison. are relevant to the subject matter involved in this action. Defendant objects on the grounds that this request calls for privileged information and is not relevant or likely to lead to admissible or discoverable evidence. 26 Defendant’s objection for relevance is sustained. The Court finds that the document(s) requested 27 are not relevant to the claims or defenses in this action. Therefore, Defendant is not required to produce 28 any documents in response to Request 14. 20 1 Request 15. 2 3 4 5 Objection, as this request calls for privileged information, is not relevant nor likely to lead to admissible or discoverable evidence. See California Penal Code § 832 et seq. 6 Plaintiff argues that the documents requested are within the discovery scope of Rule 26(b)(1) and 7 Defendant’s Response. Records regarding Correctional Lieutenant V. J. Gonzalez maintained in C.D.C. files, including: Adverse Action Files; Formal Adverse Action Files; Internal Affairs Files at North Kern State Prison. are relevant to the subject matter involved in this action. 8 Defendant objects that this request calls for privileged information and is not relevant or likely 9 to lead to admissible or discoverable evidence. Despite claims of privilege, personnel files are 10 discoverable in federal question cases. Garrett, 818 F.2d at 1519 n. 6; see Zolin, 491 U.S. at 562; also 11 see Kelly, 114 F.R.D. at 656. 12 Plaintiff’s request for records from Internal Affairs Files at North Kern State Prison is overbroad. 13 Therefore, Defendant is not required to produce any documents from Internal Affairs Files pursuant to 14 Request 15. 15 However, the Court will allow Plaintiff to discover past records of similar claims against the 16 Defendant found in Adverse Action Files and Formal Adverse Action Files. Therefore, Defendant is 17 required to submit to the Court under seal for in camera review and notify Plaintiff that he has done so, 18 within forty-five days, copies of the records within Defendant’s possession, custody or control requested 19 in Request 15 and maintained in Adverse Action Files and Formal Adverse Action Files, concerning 20 incidents of due process violations by Correctional Lieutenant V. J. Gonzalez occurring prior to 21 September 7, 2006, but no further back than September 7, 2001. No objections are permitted. If 22 Defendant cannot provide copies of the documents requested, he must explain in writing why he is 23 unable to do so. Defendant is reminded that he need not have actual possession of documents to be 24 deemed in control of them, and a party that has a legal right to obtain certain documents is deemed to 25 have control of the documents. Clark, 181 F.R.D. at 472. 26 /// 27 /// 28 /// 21 1 Request 16. Documents prepared for and used in the disciplinary proceedings concerning RVR Log #A-06-07-0016. 2 3 Defendant’s Response. These responding defendants will provide all non-privileged information in RVR-06-07-0016. 4 Plaintiff asserts that to date, Defendant’s counsel has failed to permit inspection of the documents 5 requested. Because Defendant has agreed to provide all non-privileged information pursuant to this 6 request, Defendant’s failure to provide any documents in response to Request 16 acts as an objection 7 on the ground that all of the information requested is privileged. 8 Defendant has not specified why documents prepared for and used in the disciplinary proceedings 9 are privileged information. See Zolin, 491 U.S. at 562; also see Kelly, 114 F.R.D. at 656. Therefore, 10 Defendant is required to serve upon Plaintiff copies of the documents requested in Request 16, within 11 forty-five days. No additional objections are permitted. If any of the documents produced contain 12 privileged information, Defendant shall instead submit those documents to the Court under seal for in 13 camera review and notify Plaintiff that he has done so, within forty-five days. If Defendant cannot 14 provide copies of the documents requested, he must explain in writing why he is unable to do so. 15 Defendant is reminded that he need not have actual possession of documents to be deemed in control 16 of them, and a party that has a legal right to obtain certain documents is deemed to have control of the 17 documents. Clark, 181 F.R.D. at 472. 18 Request 17. 19 Copies of all documents submitted by inmate Noble to Correctional Lieutenant V. J. Gonzalez at the September 7, 2006, disciplinary hearing concerning RVR Log # A-06-070016. 20 21 Defendant’s Response. These responding defendants will provide all non-privileged information in RVR-06-07-0016. 22 Plaintiff asserts that to date, Defendant’s counsel has failed to permit inspection of the documents 23 requested. Because Defendant has agreed to provide all non-privileged information pursuant to this 24 request, Defendant’s failure to provide any documents in response to Request 17 acts as an objection 25 on the ground that all of the information requested is privileged. 26 Defendant has not specified why the documents submitted by Plaintiff at his disciplinary 27 proceeding are privileged information. See Zolin, 491 U.S. at 562; also see Kelly, 114 F.R.D. at 656. 28 Therefore, Defendant is required to serve upon Plaintiff copies of the documents requested in Request 22 1 17, within forty-five days. No additional objections are permitted. If any of the documents produced 2 contain private or privileged information, Defendant shall instead submit those documents to the Court 3 under seal for in camera review and notify Plaintiff that he has done so, within forty-five days. If 4 Defendant cannot provide copies of the documents requested, he must explain in writing why he is 5 unable to do so. Defendant is reminded that he need not have actual possession of documents to be 6 deemed in control of them, and a party that has a legal right to obtain certain documents is deemed to 7 have control of the documents. Clark, 181 F.R.D. at 472. 8 Request 18. 9 10 11 12 Objection, as this request calls for privileged information, is not relevant nor likely to lead to admissible or discoverable evidence. See California Penal Code § 832 et seq. 13 Plaintiff argues that the documents requested are within the discovery scope of Rule 26(b)(1) and 14 Defendant’s Response. Any logs, lists, or other documentation reflecting grievances filed by North Kern State Prison inmates against Correctional Lieutenant V. J. Gonzalez concerning Due Process violations during disciplinary proceedings, in the year 2006. are relevant to the subject matter involved in this action. 15 Defendant objects under § 832 of the California Penal Code, on the grounds that this request calls 16 for irrelevant and privileged information. While this Court may give some weight to privacy rights 17 protected by state statutes, the “ultimate responsibility for deciding how much weight to ascribe to such 18 interests, and how that weight compares with the significance of competing interests, must reside with 19 the federal courts.” Kelly, 114 F.R.D. at 656. Defendant has not specified why the records are not 20 relevant or likely to lead to admissible or discoverable evidence. The Court will allow Plaintiff to 21 discover past records of similar claims filed against the Defendant in 2006. Therefore, Defendant is 22 required to respond within forty-five days to Request 18 by submitting to the Court under seal for in 23 camera review and notifying Plaintiff that he has done so, copies of documents within Defendant’s 24 possession, custody or control regarding any logs, lists, or other documentation reflecting grievances 25 filed by North Kern State Prison inmates against defendant Lieutenant V. J. Gonzalez between January 26 1, 2006 and September 7, 2006, concerning due process violations during disciplinary proceedings. No 27 objections are permitted. If Defendant cannot provide copies of the documents requested, he must 28 explain in writing why he is unable to do so. Defendant is reminded that he need not have actual 23 1 possession of documents to be deemed in control of them, and a party that has a legal right to obtain 2 certain documents is deemed to have control of the documents. Clark, 181 F.R.D. at 472. 3 Request 20. 4 5 Defendant’s Response. Photograph of metal food cart containing the inmate sack lunches and the locking mechanism on the food cart’s wheels. (See Crime/Incident Report A1-Supplement, pg 2 of 8.) 7 Objection, as said request is not relevant or likely to lead to admissible or discoverable evidence. The basis of this action is simply whether or not during rule violation hearing due process was violated and the damages, if any thereto. No documents will be produced. 8 Plaintiff argues that the documents requested are within the discovery scope of Rule 26(b)(1) and 9 are relevant to the subject matter involved in this action and reasonably calculated to lead to the 6 10 discovery of admissible evidence. 11 Defendant’s objection is sustained. The Court finds that the photograph requested is not relevant 12 to Plaintiff’s claim that Defendant violated his due process rights at the September 7, 2006 RVR hearing. 13 No further response by Defendant to Request 20 is required. 14 Request 21. 15 16 17 18 19 20 21 Defendant’s Response. Photographs and measurements of the scene of the incident including: a. Area in front of Facility A Dining Hall; b. Distance from A-side Dining Exit to B-side Dining exit; c. Width of sidewalk in front of Facility A Dining Hall; d. Photo depicting where metal food carts containing inmate lunches are stationed during meal times on Facility A Dining Hall; e. Photo depicting where inmate Noble was lying on ground in relation to Dining Exit (see “sample diagram” included herewith.) 23 Objection, as said request is not relevant or likely to lead to admissible or discoverable evidence. The basis of this action is simply whether or not during rule violation hearing due process was violated and the damages, if any thereto. No documents will be produced. 24 Plaintiff argues that the documents requested are within the discovery scope of Rule 26(b)(1) and 25 are relevant to the subject matter involved in this action and reasonably calculated to lead to the 26 discovery of admissible evidence. 27 /// 28 /// 22 24 1 Defendant’s objection is sustained. The Court finds that the photographs and measurements 2 requested are not relevant to Plaintiff’s claim that Defendant violated his due process rights at the 3 September 7, 2006 RVR hearing. No further response by Defendant to Request 21 is required. 4 IV. DEFENDANT'S PENDING MOTION FOR SUMMARY JUDGMENT 5 In light of this order resolving Plaintiff’s motion to compel, Defendant's pending motion for 6 summary judgment filed on March 18, 2011 will, by this order, be held in abeyance, pending resolution 7 of the discovery matters at issue in Plaintiff’s motion to compel. 8 V. 9 CONCLUSION Based on the foregoing, IT IS HEREBY ORDERED that: 10 1. 11 Plaintiff’s motion to compel discovery responses, filed on January 19, 2011, is GRANTED in part and DENIED in part; 12 2. 13 Plaintiff's motion to compel is GRANTED with respect to Interrogatories 1, 4-6, 8-12, and 23, and Requests for Production 1-5, 8-10, 12-13, and 15-18; 14 3. 15 Plaintiff's motion to compel is DENIED with respect to Interrogatories 3, 13, and 24, and Requests for Production 11, 14, 20, and 21; 16 4. Within forty-five days of the date of service of this order, as instructed by this order, 17 Defendant is required to serve upon Plaintiff, or submit to the Court under seal for in 18 camera review, further responses to Plaintiff’s Interrogatories 1, 4-6, 8-12, and 23; 19 5. Within forty-five days of the date of service of this order, as instructed by this order,, 20 Defendant is required to serve upon Plaintiff, or submit to the Court under seal for in 21 camera review, copies of documents requested in Requests 1-5, 8-10, 12-13, and 15-18 22 of Plaintiff’s Request for Production of Documents; 23 6. Defendant's motion for summary judgment, filed on March 18, 2011, is HELD IN 24 ABEYANCE pending resolution of the discovery matters at issue in Plaintiff’s motion 25 to compel; and 26 /// 27 /// 28 /// 25 1 7. 2 The failure of Defendant to comply with this order may result in the imposition of sanctions deemed appropriate by this Court. 3 4 IT IS SO ORDERED. 5 Dated: 6i0kij May 27, 2011 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 26
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