ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a California prisoner proceeding pro se with a suit for violation of civil rights under 42 U.S.C. § 1983. Plaintiff's two motions to compel and motion to change pleadings are before the court; several other matters warrant the court's attention as well.
I. October 30, 2008 Motion to Compel (Docket No. 103)
Plaintiff asks the court to compel defendants to provide further responses to plaintiff's request to produce documents, set number one, and specifically requests 1 through 8 and 10 through 18.
In request no. 1, plaintiff asks defendants to produce copies of all grievances and complaints received by any defendant concerning the mistreatment of prisoners and any memoranda or other documents created in response to such complaints, from January 21, 2001 through the date of response. In request no. 2, plaintiff seeks any grievances, complaints, or other documents received by defendants Downing, Johnson, Paizis and Moghaddis, concerning medical negligence, malpractice or abuse of inmate patients. Plaintiff asserts he plans to use these documents as character evidence, to establish chronic and systemic misconduct on the part of defendants. Defendants argue plaintiff's requests are overbroad and burdensome, because they are not limited to prior bad acts but instead extend to proven and unproven allegations and further because the requests are not limited to prior bad acts that are similar to the claims at issue in this action. Opp'n at 2.
Litigants "may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense. . . ." Fed.R.Civ.P. 26(b)(1). For these purposes relevant information is that which is "reasonably calculated to lead to the discovery of admissible evidence." Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1470 (9th Cir.1992) (citation omitted). Although admissibility at trial is not the standard for discovery disputes, the material sought must have some evidentiary value. Martinez v. Cornell Corrections of Texas, 229 F.R.D. 215, 218 (D.N.M. 2005).
When the discovery sought appears relevant on its face, the party resisting the discovery has the burden to establish that the requested discovery does not come within the scope of relevance . . . or is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure. Conversely, when the relevancy of the discovery is not readily apparent on its face, the party seeking the discovery has the burden to show the relevancy of the request.
Cardenas v. Dorel Juvenile Group, Inc., 232 F.R.D. 377, 382-83 (2005).
Despite the limitations imposed by Rule 404(b) of the Federal Rules of Evidence, courts have found "prior suits or disciplinary proceedings" or "prior civilian complaints made against the defendants and incidents of excessive force by individual defendants," when sufficiently similar to claims in the complaint, to be discoverable. Cox v. McClellan, 174 F.R.D. 32, 34 (W.D.N.Y. 1997) (prior complaints of excessive force); Renshaw v. Ravert, 82 F.R.D. 361, 363 (E.D. Penn. 1979) (suits or discipline concerning abuse of authority); Martinez v. Cornell Corrections of Texas, 229 F.R.D. at 223 (claims of sexual harassment or gender-related misconduct). Such material is discoverable even if the complaints sought were not substantiated. Barrett v. City of New York, 237 F.R.D. 39 (E.D.N.Y. 2006). Even if the material ultimately is not admissible, information about prior similar complaints may lead to admissible information or may be relevant to credibility. Renshaw, 82 F.R.D. at 363.
Accordingly, the court grants requests one and two, limited to documents relating to any allegations that Walker hired inmates to attack other inmates; that Parker and Lorusso improperly used pepper spray on inmates; and Downing, Johnson, Paizis and Moghaddas misled inmates about prescribed drugs and improperly prescribed drugs. These requests are denied in all other respects.
Request no. 3 asks for a full and complete copy of plaintiff's CDCR central file, from February 13, 1997 through the date of response. In the present motion, plaintiff has narrowed his request to documents from his central file related to plaintiff's "safety concerns," dating from February 2004 through the present. Defendants say plaintiff has access to non-confidential portions of his central file through established institutional procedures and that they thus have afforded plaintiff access to his central file. Plaintiff responds that, contrary to defendants' claims, he has not been given any access to his central file. Pl.'s Response to Defs.' Opp'n (Docket No. 129) at 2. Given the record before the court, the court will direct defendants to ensure plaintiff has an opportunity to review his central file, and to file a declaration, within thirty days from the date of this order, providing relevant details confirming plaintiff's actual review of his central file.
In request no. 4, plaintiff asks for copies of mail logs and other documents reflecting dispatch and receipt of confidential correspondence from August 14, 2002 through the present. This request is moot, because plaintiff has been served, on October 8, 2008, with copies of responsive documents for the relevant time frame. See Defs.' Opp'n (Docket No. 126), Ex. A. Plaintiff does not specifically refute as much in his reply.
Request no. 5 is for copies of documents reflecting all day to day supervisory notes on plaintiff while he resided in administrative segregation and security housing unit placement, from August 14, 2002, through the date of the response. Defendants say their counsel has made arrangements for plaintiff to review the documents responsive to this request, namely the CDCR 114-A forms found in his central file. Opp'n at 5. In his reply, plaintiff avers he has not seen his 114-A forms. Here as well, the court will direct defendants to confirm plaintiff's actual review of his 114-A forms and to file a declaration within thirty days providing the relevant details.
Request no. 6 is for movement sheets, showing plaintiff's cell transfers and the names of his cellmates. Defendants represent they have provided computer print outs of plaintiff's cell assignments and the names and prison numbers of his cell mates. Docket No. 126-5 at 6-23.*fn1 This request is thus moot.
Plaintiff was served with all the documents that are responsive to request no. 7 on October 8, 2008, with the exception of the audiotape of the proceeding on October 6, 2004. See Docket No. 126, Ex. B. Defendants have not specifically addressed the audiotape of the proceeding, which plaintiff seeks because of problems he identifies with the transcript. This request is granted as to the audiotape but denied as to everything else.
In requests 8, 17, and 18, plaintiff seeks copies of documents previously filed by plaintiff in legal proceedings. Request no. 8 calls for copies of two declarations from inmates, which plaintiff filed with the original complaint in the instant action. In requests 17 and 18, plaintiff asks for copies of all documents filed in other lawsuits filed by plaintiff. None of the contentions made by plaintiff provides a legal basis for compelling defendants or their counsel to obtain copies of court documents originally filed by plaintiff, for a fee, and then provide these documents to plaintiff at no cost to him. See Docket No. 103 at 11. The motion to compel further responses to requests 8, 17 and 18 will be denied.
In request no. 10, plaintiff asks for a complete copy of all nine volumes of his medical and mental health records. Defendants have provided a declaration saying they informed plaintiff he could use established procedures to gain access to the non-confidential portions of his medical and mental health records, and actually gave plaintiff access to all his records for the relevant time period of August 14, 2002 to February 23, 2006, in response to a different set of discovery requests. See Docket No. 126 at 12 & Exs. C & E. Defendants represent there is nothing more that can be compelled. In his motion, plaintiff concedes he has been able to review his medical records, but says certain portions of those records are missing. Docket No. 103 at 12. In his reply, plaintiff in fact acknowledges receipt of "more than six-hundred pages" of mental health records, while objecting to their filing with the court. Reply at 2. Defendants will not be compelled to respond further to request no. 10.
In request no. 11, plaintiff asks for any and all books, logs or other documents relating to grievances he filed between March 28, 2002 and February 26, 2006. Plaintiff states the documents are relevant to his claims that defendants O'Brien, Dovey and Doe obstructed his access to the appeals process. These three defendants have been dismissed from the lawsuit; therefore the motion to compel as to request no. 11 is moot.
Request no. 12 asks for all books, files, records, grievances, complaints or other documents received by defendant Walker or his agents within CDCR, from 1997 through 2001, reflecting CDCR officials' enlisting of certain individuals to act as "peacekeepers." Plaintiff states this information is necessary to prove the habits of defendant Walker, and other officials, in enlisting the bloodline gang to harm inmates. Defendants' objection that the request is overbroad, insofar it seeks personnel information of individuals who are not parties to this action, is well-taken. As to the personnel information of defendant Walker, defense counsel asserts disclosure should not be compelled because it will undermine the security of the prison and will jeopardize the safety of prison employees. The information requested, however, may be relevant and not available to plaintiff through other means. Therefore the court will review responsive documents to determine whether any should be produced and, if so, subject to what protections. Within twenty days from the date of this order, defendants will be ...