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Fraihat v. Cohen


November 7, 2007


The opinion of the court was delivered by: Barbara L. Major United States Magistrate Judge


[Doc. No. 47]

On September 19, 2007, Defendants sought leave to file a motion to compel production of documents. Doc. No. 46. On September 24, 2007, the Court granted Defendants' request and ordered the Clerk's Office to file the motion to compel, which was attached to the application for leave. Doc. No. 48. Pursuant to the briefing schedule set by the Court, Plaintiff timely opposed the motion [Doc. No. 55], and Defendants filed a reply on October 16, 2007 [Doc. No. 53]. The Court found the motion suitable for decision on the papers without oral argument and took the matter under submission pursuant to Civil Local Rule 7.1(d)(1). Doc. No. 48.

Having considered all of the briefing and supporting documents presented, and for the reasons set forth below, Defendants' motion to compel [Doc. No. 47] is GRANTED.


Plaintiff initiated this action against several employees of Corrections Corporation of America ("CCA") pursuant to Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Compl. at 1. Plaintiff, a civil immigration detainee who previously was detained at CCA's San Diego Correctional Facility and now is being held by Immigration and Customs Enforcement at its El Centro Processing Center, alleges that (1) Defendants Cohen and Lebya-Gonzales interfered with his First Amendment right of legal access by delaying his legal mail, which proximately caused Plaintiff to lose his immigration appeal, (2) Defendant Clover humiliated and retaliated against him for utilizing the facility's grievance process, and (3) Defendants Soria, Clover, Howard and Easterling violated Plaintiff's Fifth Amendment Due Process rights by failing to interview witnesses and give him a formal hearing on his grievances. Id. at 5-8. As a result of these alleged violations, Plaintiff maintains that he is suffering from "serious mental stress" and, accordingly, seeks $7,000,000.00 in damages. Id. at 5, 8.

On June 8, 2007, Defendants served Plaintiff with their first set of requests for production of documents. Mem. P. & A. Supp. Defs.' Mot. to Compel ("Defs.' Mem.") at 2. Plaintiff responded to these requests on August 6, 2007, but objected to Request for Production Nos. 1, 2 and 6, which sought Plaintiff's institutional and immigration records*fn1 , on the grounds that the requested records contain "confidential documents" and "are not relevant to this case." Id. at 2, Ex. 2 at 2. After meeting and conferring unsuccessfully with Plaintiff in an effort to resolve the parties' dispute over the requests for which Plaintiff served objections, Defendants filed the instant motion to compel.


The scope of discovery is defined by Federal Rule of Civil Procedure 26(b). Pursuant to that rule, litigants may obtain discovery regarding "any matter, not privileged, that is relevant to the claim or defense of any party . . . ." Fed. R. Civ. P. 26(b)(1). Relevant information for discovery purposes includes any information "reasonably calculated to lead to the discovery of admissible evidence," and need not be admissible at trial to be discoverable. Id. District courts enjoy broad discretion both to determine relevancy for discovery purposes, see Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002), and to limit discovery to prevent its abuse, see Fed. R. Civ. P. 26(b)(2) (instructing that courts may limit discovery where it is "unreasonably cumulative or duplicative," "obtainable from some other source that is more convenient, less burdensome, or less expensive," or where its burden or expense "outweighs its likely benefit").


In the instant motion, Defendants seek an order compelling Plaintiff to produce all of his institutional records, which include records regarding his medical history, disciplinary history, and past immigration proceedings. Defs.' Mem. at 3. To facilitate this production, Defendants have requested that Plaintiff sign releases authorizing the institutions where he has been detained for either criminal or immigration reasons to provide Defendants with his records.

at 3-4. Defendants contend that to the extent Plaintiff seeks compensatory damages for emotional distress, his medical records are relevant to the issue of whether Defendants' conduct, in fact, caused Plaintiff's emotional distress symptoms or whether he had pre-existing emotional distress issues. Id. Also relevant in Defendants' view is whether or not Plaintiff has continued to seek treatment for his mental distress. Id. at 4.

Defendants contend that Plaintiff's other institutional records are relevant to determine whether Plaintiff has a prior history of similar claims and/or problems concerning mail processing issues, grievance process issues or disciplinary issues. Id. Specifically in regard to Plaintiff's disciplinary history, Defendants note that Plaintiff has claimed in this lawsuit that he was subject to segregation based upon false disciplinary write-ups created in retaliation for his filing grievances and lawsuits. Id. Defendants contend that the extent of Plaintiff's institutional disciplinary history at other institutions is, therefore, relevant to Defendants' defense that Plaintiff's corrective history is a product of his pattern of repeated disciplinary violations, not retaliation. Id.

Finally, to the extent these immigration records are not included in Defendants' first and sixth production requests, Defendants' Request for Production No. 2 specifically seeks the complete court files for "In re: FRAIHAT, Faour Abdallah, In Removal Proceedings, Case No. A76 697 069; 93 167 376, United States Department of Justice, Immigration Review and Appeals." Id., Ex. 1 at 4. Defendants argue that Plaintiff's immigration records are relevant to determine whether, but for the delay in postage, the Board of Immigration Appeals would have granted Plaintiff's motion to reconsider. Id. at 3. It is Defendants' belief that the immigration files will show that the motion would have been denied regardless and that any error in delaying Plaintiff's mail was, therefore, harmless. Id.

In his opposition to the motion to compel, Plaintiff states that he "does not mind" if Defendants obtain his California Department of Corrections and Department of Homeland Security medical records so long as they also provide him with a copy. Pl.'s Answering to Defs.' Mot. to Compel ("Pl.'s Opp'n") at 2. As for the other institutional records, Plaintiff objects on the grounds that the requests call for confidential documents that are not relevant to this case. Id. at 2. Additionally, he states that his criminal and immigration files were sealed by a judge and are not available for public access. Id. Plaintiff does not provide any explanation or documentary evidence supporting this claim that his records have been sealed.

As an initial matter, the Court finds that both Plaintiff's past and current medical records are relevant and must be produced. The scope of discoverable information is broad - litigants may obtain discovery regarding "any matter, not privileged, that is relevant to the claim or defense of any party . . . ." Fed. R. Civ. P. 26(b)(1). Here, Plaintiff has claimed seven million dollars worth of damages as a result of "serious mental stress." Compl. at 5, 8. Defendants therefore are entitled to investigate whether Plaintiff's symptoms pre-dated his confinement at their facility to support their potential defense that these symptoms are not attributable to Defendants' conduct. Additionally, whether or not Plaintiff has continued to seek treatment for his mental distress is directly relevant to the amount, if any, of damages. Particularly in light of the fact that Plaintiff no longer objects to the production of these documents, the Court finds that these documents are discoverable and GRANTS Defendants' motion as to Plaintiff's medical records.*fn2

However, the Court finds no authority for granting Plaintiff's request that Defendant be required to provide Plaintiff with copies of his medical records. Defendants have not expressly agreed to do so and Plaintiff has provided no case law or statutory authority demonstrating that they are required to provide him with copies. While Plaintiff is proceeding in forma pauperis, 28 U.S.C. § 1915 provides coverage only for the costs of service of process, printing the appellate record, and preparing transcripts of proceedings (where required by the district court) - not routine discovery costs. See 28 U.S.C. § 1915. Accordingly, to the extent Plaintiff seeks an order requiring Defendants to provide copies of all medical records obtained, Plaintiff's request


In regard to Plaintiff's disciplinary and immigration records, the Court finds that Plaintiff's institutional records are directly relevant to Plaintiff's claims and Defendants' defenses. Under Rule 26, Defendants may request any and all information "reasonably calculated to lead to the discovery of admissible evidence." Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1470 (9th Cir. 1992). The Court agrees that records from institutions where Plaintiff has been detained, which demonstrate whether or not Plaintiff has experienced or claimed mail processing issues, grievance process issues or disciplinary issues, would be probative as to Plaintiff's credibility and the robustness of his claims in this case. For instance, as Defendants point out, a finding that Plaintiff has a long history of causing disciplinary problems would tend to undermine his claim that Defendant Clover's alleged threat to place him on administrative segregation was an attempt to retaliate against him as opposed to a legitimate response to misconduct. Similarly, Defendants cannot defend themselves against Plaintiff's claim that their delay in mailing Plaintiff's notice of appeal*fn4 to the Board of Immigration Appeals caused him to lose his case (or seek to mitigate their damages) without reviewing the records of Plaintiff's appeal to determine his likelihood of success on the merits. Accordingly, Defendants are entitled to obtain the discovery necessary to defend against Plaintiff's claims.*fn5 See Fed. R. Civ. P. 26(b)(1).

Contrary to Plaintiff's view, his confidentiality objections are insufficient to justify the withholding of relevant evidence. In fact, Rule 26(c) of the Federal Rules of Civil Procedure specifically contemplates that confidential information may be requested in discovery and provides various mechanisms for protecting the confidential nature of the documents without impeding the discovery process. See Fed. R. Civ. P. 26(c). Plaintiff has not sought protection under this rule, however, and the information Plaintiff has provided to date does not demonstrate that Plaintiff's disciplinary and immigration records warrant any heightened degree of protection. Plaintiff has provided no evidence to support his assertion that his disciplinary and immigration records were "sealed" by some other judge nor has he explained in what context or proceeding this sealing occurred and why it binds this Court. Furthermore, to the extent Plaintiff has any expectation of confidentiality in his disciplinary or immigration records (Plaintiff has provided no authority to support such a notion), he has waived it by placing his disciplinary history and immigration status at issue via the claims in this case. Accordingly, the Court finds that Plaintiff's disciplinary and immigration records must be produced.


For the foregoing reasons, Defendants' motion to compel is GRANTED. Plaintiff is hereby ordered to:

(1) produce or make available to Defendants for copying any and all documents responsive to Request for Production Nos. 1, 2 and 6 that are within Plaintiff's possession, custody or control,

(2) execute all release forms necessary to effectuate the disclosure of his institutional records to Defendants from (a) United States Immigration and Customs Enforcement, (b) United States Marshals Service, (c) United States Department of Justice, (d) Department of Homeland Security, and (e) California Department of Corrections, and

(3) forward the executed release forms, together with Supplemental Responses to Defendants' First Request for Production Nos. 1, 2 and 6, to Defendants by November 21, 2007.

Plaintiff is hereby warned that failure to comply with any of this Court's orders or the Federal Rules of Civil Procedure may result in the imposition of sanctions including monetary sanctions, evidentiary sanctions and/or the dismissal or default of your case.


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