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Ochotorena v. Adams

July 6, 2009

RICHARD A. OCHOTORENA, PLAINTIFF,
v.
D. ADAMS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTIONS TO COMPEL

(Docs. 47 & 51)

Plaintiff Richard A. Ochotorena ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's complaint, filed November 30, 2005, against Defendants Adams, Kalkis, Reynoso, Curtiss, Duncan, Fambrough, Lane, and Rodriquez ("Defendants"). Plaintiff alleges that on September 8, 2003, while incarcerated at the California Substance Abuse Treatment Facility, defendants violated his Eighth Amendment rights when excessive force was used against him.

On November 10, 2008, Plaintiff filed a motion to compel further responses from Defendants Adams and Reynoso to Plaintiff's interrogatories, requests for admission, and requests for production of documents. ( Doc. 47.) Defendants filed an opposition to this motion on November 26, 2008. (Doc. 49.) Plaintiff filed his reply on December 11, 2008. (Doc. 50.)

On December 30, 2008, Plaintiff filed a motion to compel the production of documents from Defendant Kalkis. (Doc. 51.) Defendants filed an opposition to this motion on January 9, 2009. (Doc. 52.) Plaintiff filed his reply on January 26, 2009. (Doc. 53.) The matter is deemed submitted. Local Rule 78-230.

Plaintiff states that his discovery requests served on Defendants Adams and Reynoso mistakenly asked about events occurring on September 3, 2003. (Doc. 47, Pl.'s Mot. to Compel 10.) Plaintiff states that he actually meant September 8, 2003. (Pl.'s Mot. to Compel 10.) Plaintiff is proceeding pro se and the date of the alleged excessive force incident, September 8, 2003, is not in dispute.

Accordingly, the Court will grant Plaintiff the opportunity to re-serve 1) on Defendant Adams the following discovery requests: Interrogatories Nos. Five, Eight, and Nine; Requests for Production of Documents Nos. One, Two, Three, Four, and Six; and Requests for Admission Nos. Four and Six; and 2) on Defendant Reynoso the following discovery requests: Interrogatories Nos. Two and Three; and Requests for Admission Nos. Two, Three, and Four. Plaintiff may only change the date initially listed in these discovery requests, except as set forth below for Request for Admission No. Six to Defendant Adams. The Court will address Plaintiff's motions to compel with the understanding that Plaintiff may re-serve Defendants Adams and Reynoso as set forth herein.

Plaintiff shall have twenty (20) days after the date of service of this order within which to re-serve the above-mentioned discovery requests. Defendants shall have thirty (30) days after service of the above discovery requests within which to serve a response. Plaintiff shall then have thirty (30) days after service of response within which to file any motions to compel. The discovery deadlines will be extended for this purpose and no other.

I. Motion To Compel - Defendant Adams

A. Interrogatories

1. Interrogatory No. Five

Plaintiff's Interrogatory No. Five: "As warden of CSATF and State Prison at Corcoran on and before September 3, 2003, were you in charge of hiring and retention of all personnel under your charge to include correctional officers?"

Plaintiff states that "the response to interrogatory No. 5 is incomplete as defendant Adams failed to state whether or not he was in charge of retaining all personnel under his charge as well." In their opposition, Defendants served the following amended response:

Defendant objects to this request on the grounds that it is compound and the terms "in charge" and "your charge" are vague. Without waiving these objections, Defendant Adams was only responsible for approving the hiring of correctional staff members below the rank of Captain, except for new hires from the academy. Defendant was not responsible for the retention of all the personnel at Substance Abuse and Treatment Facility and State Prison at Corcoran (SATF). Defendant does not work at SATF.

The amended response sufficiently answers Plaintiff's interrogatory. Further response by Defendant Adams is unnecessary.

2. Interrogatory No. Eight

Plaintiff's Interrogatory No. Eight: "Was J. M. Astorga employed as a C/O at CSATF State Prison at Corcoran on September 3, 2003?"

Defendant Adams's response: "Defendant does not recall."

Plaintiff contends, "This response is evasive and non-responsive to information easily and readily available to Defendant."

Defendants in their opposition state that Plaintiff's argument lacks merit because Defendant Adams clearly answered the interrogatory. The Court finds Defendant Adams's response to be insufficient. Defendant Adams does not state why this information cannot be ascertained. Lack of personal knowledge is an insufficient response to an interrogatory if the information is available from the party's attorney. See Hickman v. Taylor, 329 U.S. 495, 511 (1947) ("Where relevant and non-privileged facts remain hidden in an attorney's file and where production of those facts is essential to the preparation of one's case, discovery may properly be had.")

3. Interrogatory No. Nine

Plaintiff's Interrogatory No. Nine: "On September 3, 2003, and prior to that date were you aware of prior acts of excessive force and dishonesty on the part of C/O's J. M. Astorga and J. Fambrough?"

Defendant Adams's Response: "Defendant objects to this interrogatory on the ground that it is compound and not reasonably calculated to lead to the discovery of admissible evidence. Without waiving these objections, no."

Plaintiff argues that "this response is evasive and non-responsive."

Defendants in their opposition state that Defendant Adams clearly answered the question. The Court agrees with Defendants. Defendant Adams responded, "No," to Plaintiff's interrogatory.

B. Requests for Production of Documents (POD)

1. Request For Production of Documents No. One

Plaintiff's Request For POD No. One: "the Video Surveillance Institutional Operational Procedure Plan for Facility "C", at CSATF and State Prison at Corcoran on September 3, 2003."

Defendant Adams's Response: Defendants objects to this request on the ground that it is compound, overbroad, and Plaintiff's need for this information is substantially outweighed by the risk to institutional security. Providing Plaintiff with this information would provide him, and possibly other inmates, with the ability to avoid or otherwise manipulate this security measure, which would threaten the lives and safety of correctional staff members and inmates. Moreover, Plaintiff contends that Defendant Adams failed to adequately train and supervise the correctional staff members that allegedly assaulted Plaintiff at the Substance Abuse and Treatment Facility and State Prison at Corcoran (SATF) on September 3, 2003.

Accordingly, the video surveillance policy at SATF is not reasonably calculated to lead to the discovery of admissible evidence. Without waiving these objections, Defendant does not have possession, custody, or control over any documents responsive to this request.

Defendant Adams states that without waiving any of his objections, he does not have possession, custody, or control over any documents responsive to this request. The Court finds this answer to be insufficient. Defendant Adams must explain why he does not have possession, custody, or control over the documents requested. Control is defined as the legal right to obtain the documents requested upon demand. United States v. Int'l Union of Petroleum & Indus. Workers, 870 F.2d 1450, 1452 (9th Cir. 1989).

2. Request for POD Nos. Two, Three and Four

Plaintiff's Request for POD No. Two: "the video surveillance tape from all active camera angels of video footage of the facility "C", program office and medical area on September 3, 2003, relative to CSATF log. No. 03-3924."

Defendant Adams's Response: "Defendant does not have possession, custody, or control over any video tapes responsive to this request."

Plaintiff's Request for POD No. Three: "video surveillance tape footage of normal inmate movement from all active angels [sic] of the facility "C", program office and medical ...


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