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Johnson v. Sullivan

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


August 13, 2008

GARRISON S. JOHNSON, PLAINTIFF,
v.
W.J. SULLIVAN, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Arthur L. Alarcón United States Circuit Judge

ORDER

Plaintiff Garrison S. Johnson is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Several unresolved issues are pending before this Court.

I.

On July 10, 2008, Mr. Johnson filed a motion (Doc. No. 87), requesting that the Court issue a subpoena duces tecum ordering defendant Dovey to provide plaintiff with a copy of 1) an October 7, 2006 videotape from the CCI-IV Facility Yard; 2) a February 2, 2007 videotape of a briefing of CCI prison officials; and, 3) a written transcription of that briefing. On July 25, 2008, defendant Dovey filed a response (Doc. No. 95), contending that issuing the requested subpoena would be a futile act as defendant Dovey is retired from the California Department of Corrections and Rehabilitation (CDCR) and does not have possession, custody or control of the documents Mr. Johnson seeks. On July 30, 2008, the Court denied plaintiff's motion (Doc. No. 97) and directed Mr. Johnson to make a request for the materials he is seeking, to all appropriate defendants, by way of a request for production of documents pursuant to Rule 34 of the Federal Rules of Civil Procedure.

On August 11, 2008, Mr. Johnson filed a "Reply to Defendant Dovey's Responses to Plaintiff's Motion for Subpoena Duces Tecum." (Doc. No. 103). In this pleading, Mr. Johnson requests that the Court issue a subpoena ordering defendant Dovey's successor, the current director of the California Department of Corrections and Rehabilitation (CDCR) to produce, pursuant to Fed. R. Civ. P. 45, a copy of an October 7, 2006 videotape from the CCI-IV Facility Yard, a February 2, 2007 videotape of a briefing of CCI prison officials, and a written transcription of that briefing.

It is unclear to the Court whether Plaintiff has requested these materials from any other defendants, or whether any other defendants anticipate producing materials responsive to these requests.

II.

On July 25, 2008, defendants filed a "Motion to Modify the Scheduling Order" (Doc. No. 93), wherein defendants sought, and were granted by the Court (Doc. No. 97), a modification to the scheduling order on the ground that they need more time to redact and produce documents in response to Mr. Johnson's request for production of documents. According to defendants, they are preparing to produce materials responsive to Mr. Johnson's request for "any and all CCI-IVA and Investigative Services Unit (ISU) intelligence information that was gathered that reveals the IVA Black inmate population had plans to attack/assault staff on October 7, 2006," including "threat assessments prepared by investigative staff at CCI in the wake of the lockdown."

The Court is unable to determine from the record whether the materials defendants are preparing to produce include the items requested by Mr. Johnson in the motion for a subpoena duces tecum to be issued to defendant Dovey, namely, the October 7, 2006 videotape from the CCI-IV Facility Yard, the February 2, 2007 videotape of the briefing of CCI prison officials, and a written transcription of that briefing.

On August 5, 2008, Mr. Johnson filed a "Motion for Subpoena Duces Tecum In Support of Plaintiff's Motion for Summary Judgment." (Doc. No. 102). In this motion, Mr. Johnson requests that the Court issue a subpoena ordering Defendants W.J. Sullivan and James Tilton to produce the full (ISU) investigation reports, the grievance appeals filed by black inmates who were charged with planning to attack staff on October 7, 2006 and/or in the wake of, the October 7, 2006 videotape that shows the incident and the activity of inmates when the staff attack/assault occurred, the videotape of the February 2, 2007, I.S.T. meeting at CCI that was held concerning plaintiff and his lawsuit in Johnson v. California, and a copy of the log showing who were in attendance of the February 2, 2007, I.S.T. meeting."

Beyond Defendants' representation that they are preparing to produce "any and all CCIIVA and Investigative Services Unit (ISU) intelligence information that was gathered that reveals the IVA Black inmate population had plans to attack/assault staff on October 7, 2006," including "threat assessments prepared by investigative staff at CCI in the wake of the lockdown," the Court is unable to determine from the record whether, and/or from which defendants, plaintiff has requested the items listed in his pleadings of August 5, 2008 and August 11, 2008 (Doc. Nos. 102 and 103).

Before the Court can rule upon these pending matters, more information is required. Accordingly, good cause showing, IT IS HEREBY ORDERED THAT:

1. Mr. Johnson is requested to advise the Court, no later than August 20, 2008, as to what documents, and other materials, he has requested from each of the defendants by way of a requests for production of documents pursuant to Rule 34 of the Federal Rules of Civil Procedure. Mr. Johnson may comply with this request by filing with the Court a copy of the document requests he has thus far propounded to defendants.

2. Defendants are requested to advise the Court, no later than August 20, 2008, as to whether and how they are producing materials responsive to Mr. Johnson's requests for production of documents, including the materials Mr. Johnson requested by way of his motion for a subpoena duces tecum, filed on July 10, 2008, namely, a copy of an October 7, 2006 videotape from the CCI-IV Facility Yard, a February 2, 2007 videotape of a briefing of CCI prison officials, and a written transcription of that briefing. Defendants may comply with this request by filing with the Court a copy of their responses to plaintiff's document requests thus far propounded on defendants.

20080813

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