Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Jacobs v. Scribner

September 24, 2009

GEORGE E. JACOBS IV, PLAINTIFF,
v.
ALLEN K. SCRIBNER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL PRODUCTION/INSPECTION AND DENYING SANCTIONS, and DENYING PLAINTIFF'S MOTION FOR PRESERVATION OF VIDEOTAPES

(Docs. 42 and 46)

Order on Motion to Compel Production/Inspection of Documents With Sanctions and Motion for Preservation of Videotapes

Plaintiff George E. Jacobs IV ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983 and California law. This action is proceeding on Plaintiff's complaint, filed September 18, 2006, against Defendants Martinez, German, and Northcutt for use of excessive physical force, assault and battery, and intentional infliction of emotional distress; and against Defendant Martinez for acting with deliberate indifference to Plaintiff's serious medical needs. The excessive force claim, which is also brought against two Doe defendants, allegedly occurred during the escort of Plaintiff from the Acute Care Hospital to the Security Housing Unit on January 26, 2005. The medical care claim against Defendant Martinez arises from Defendant's alleged failure to obtain medical care for Plaintiff on January 27, 2005, and the medical care claims against Does 3, 4, and 6-10 arise from the failure to obtain medical care for Plaintiff between January 27, 2005, and February 3, 2005. Plaintiff alleges that he was ultimately transported to an outside hospital for emergency medical care on February 2, 2005, and lost the sight in one eye as a result of his injuries.

I. Motion to Compel Production of Documents

On March 7, 2008, Plaintiff filed a motion to compel further responses to his requests for the production of documents. (Doc. 42.) Defendants filed an opposition on March 18, 2008 and Plaintiff filed a reply on April 7, 2008. (Docs. 44, 48.)

Federal Rule of Civil Procedure 34 empowers a party to serve on any other party a request to produce "any designated documents... which are in the possession, custody or control of the party upon whom the request is served." Fed. R. Civ. P. 34(a). Documents are in the "possession, custody, or control" of the served party if "the party has actual possession, custody, or control, or has the legal right to obtain the documents on demand." In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir.1995). Accordingly, a party may be required to produce documents turned over to an agent, such as its attorney or insurer. E.g., Henderson v. Zurn Indus., 131 F.R.D. 560, 567 (S.D. Ind.1990). Further, the responding party has a duty to supplement any responses if the information sought is later obtained, or the response provided needs correction. Fed. R. Civ. P. 26(e).

If Defendants object to one of Plaintiff's discovery requests, it is Plaintiff's burden on his motion to compel to demonstrate why the objection is not justified. In general, Plaintiff must inform the Court which discovery requests are the subject of his motion to compel, and, for each disputed response, inform the Court why the information sought is relevant, and why Defendants' objections are not justified. Plaintiff's motion to compel is deficient as it does not address which discovery requests are the subject of his motion to compel; nor does he inform the Court why the information sought is relevant and why Defendants' objections are not justified and/or of any deficiencies he alleges in the documents already produced by Defendants.*fn1

However, Defendants have addressed each of Plaintiff's sixty-one production and/or inspection requests. In the interest of conserving the Court's limited resources, and given both Defendants' opposing efforts and the extent of discovery apparently being conducted in this case, the Court opts to reach the merits of Plaintiff's motion to compel, rather than deny the motion without prejudice to refiling.

Defendants shall provide Plaintiff with copies of the documents compelled produced herein within forty-five days from the date of service of this order. Defendants may redact from the relevant documents any information relating to the identities of third parties. If, after double-checking with the appropriate record keeping departments and human resource personnel, Defendants continue to contend that any of the requests granted herein are burdensome, they shall so notify the Court within thirty days from the date of service of this order (including a showing of the basis upon which they assert the burdensome objection) and the Court will revisit the issue. Likewise Defendants shall notify the Court within thirty days from the date of service of this order of any continuing belief (with supporting evidence) that disclosure of any documents ordered produced herein will cause safety and security issues.

The Court issues combined rulings below on requests for production that are similar in nature.

Plaintiff's First Request for Production of Documents Request for Production No. 1: "All documents that refer to allegations of misconduct or other improper conduct by prison staff involving defendants J.M. Martinez, Northcutt, German, and John Does 1 & 2, 3 & 4, 6-10. Whether such allegations were made by an inmate or by a member of the prison staff. Per Departmental Operational Manual (D.O.M.) 54100. 25-5, 54100. 25-6, 24100.25.7, pursuant to p.c. 832-5(a) evidence codes 1043, 1044, 1045, 1046."

Ruling: Defendants objected to number 1 as being compound, vague and ambiguous, burdensome, overly broad, not likely to lead to the discovery of admissible evidence, and claiming that disclosure of the requested documents would violate Defendants' right to privacy under California law. The Court grants Plaintiff's motion in part, subject to the limitation that this request for production of documents is narrowed to include only those grievances, complaints, etc. filed against any Defendant(s) that involve claims similar to those raised by Plaintiff in the instant action -- i.e. Defendants Martinez, German, and Northcutt for use of excessive physical force, assault and battery, and intentional infliction of emotional distress, and Defendant Martinez for acting with deliberate indifference to serious medical needs. (Doc. 9.)

Request for Production No. 2: "All medical documents that refer or relate to psychological history of defendants J.M. Mertinez, [sic] Northcutt, German, John Does 1 & 2, 3 & 4, 6-10, which may or may not have had an effect on their improper conduct. Pursuant to P.C. 832.5(a), evidence codes 1043, 1045, 1046."

Ruling: Defendants objected to number 2 as being compound, vague and ambiguous, burdensome, overly broad, not likely to lead to the discovery of admissible evidence, and claiming that disclosure of the requested documents would violate Defendants' right to privacy under California law. These objections are sustained. Plaintiff's motion to compel is denied.

Request for Production No. 3: "Please produce and relinquish the February 8th 2005 and February 9th 2005 excessive use of force videotape interview conducted by correctional lieutenant Ruiz in 4A2building I.C.C. committee room, regarding the January 26th 2005 unnecessary and unauthorized excessive use of force on George E. Jacobs IV.

Pursuant to evidence code 1553, CDCR administrative bullentin [sic] 05-03, 11-22-05."

Ruling: Defendants objected to number 3 as being vague and ambiguous. These objections are overruled. However, Defendants further respond that per Lieutenant Ruiz, the interview of Plaintiff was pursuant to his inmate appeal, and that it was not a use of force investigation. The interview was not videotaped and there are no tapes to produce. Defendants cannot be compelled to produce an item that does not exist. Plaintiff's motion to compel is denied.

Request for Production No. 4: "Please produce and relinquish excessive use of force videotape interview of inmate witnesses that were housed in cells 4A2R-cell 42 and 4A2R-cell 44, conducted by correctional LT. Ruiz on February 10th 2005. Pursuant to E.V. 1553 and CDCR Administrative bullentin [sic] 05-03, 11-22-05."

Ruling: Defendants objected to number 4 as being vague and ambiguous. These objections are overruled. However, Defendants further respond that per Lieutenant Ruiz, there were no videotaped interviews of any purported witnesses arising out of Plaintiff's claims from January 26, 2005. Defendants cannot be compelled to produce an item that does not exist. Plaintiff's motion to compel is denied.

Request for Production No. 5: "All documents that refer or relate to the California department [sic] of Corrections and Rehabilitative policies and procedures on calculated use of force plans, authorized by the department [sic] of Corrections.

Pursuent [sic] to E.V. 1530,1532, including but not limited to the use of force policy training handbook pursuant to Departmental Operational Manual (D.O.M.) section 54060.36."

Ruling: Defendants objected to this request on the grounds that it is vague and ambiguous, burdensome, and overly broad. Furthermore, sections of the Departmental Operational Manual that relate to use of force is confidential and its release may jeopardize the safety and security of the institution. Without waiving objections, Defendants produced sections of Title 15 section 3268, which deals with use of force. Defendants asserted that this request was vague and overly broad because it does not request readily identifiable documents. The Court grants Plaintiff's motion in part, subject to the limitation that this request for production of documents is narrowed to include any policy training handbook, or section thereof, pursuant to Departmental Operational Manual (D.O.M.) section 54060.36 on the use of force.

Request for Production No. 6: "All documents that refer or relate to the California state prison-Corcoran calculated use of force policies and procedures authorized by the C.S.P.-cor warden [sic] A.K. scribner [sic] and/or derral [sic] G. Adams for the [sic] 2005 until the present. Pursuant to E.V. 1530,1532, including but limited to Corcoran's Institution Operations plan for use of force. Pursuant to D.O.M. section 54060-36."

Ruling: Defendants objected to this request on the grounds that it is compound, vague and ambiguous, burdensome, overly broad, and would jeopardize the safety and security of the institution. Defendants argue that Plaintiff did not provide Defendants with a request for a readily identifiable document; rather asked for a wide range of potential documents spanning three years; that they cannot guess as to Plaintiff's intentions; and that any relevant sections of the Operational Manual dealing with use of force have been determined by prison officials to be confidential, that releasing them to an inmate would cause safety and security concerns. The events at issue in this action occurred in January of 2005. Plaintiff's request is narrowed to Corcoran's Institution Operations plan for use of force, pursuant to D.O.M. section 54060-36, authorized by Wardens Scribner and/or Adams for 2004 and 2005.

Request for Production No. 7: "Please relinquish the following document(s); George E. Jacobs #J4866 CDC 114A daily log ("notes") file. Pursuant to E.V. 1530,1532,1600."

Ruling: Defendants objected to this request on the grounds that it is vague and ambiguous, and overly broad, but argue that, without waiving these objections, they provided Plaintiff with his requested document. Without any specific claim from Plaintiff as to how this production was deficient, Defendants cannot be compelled to respond further. Plaintiff's motion to compel is denied.

Request for Production No. 8: "Please relinquish the following document(s); (ACH) unit log entry for January 24, 26, 28, 29, 30, 31 of 2005. As well as entries for February 1, 2, 3 of 2005. Pursuant to E.V. 1530,1532,1600."

Ruling: Defendants objected to this request on the grounds that it is compound, vague and ambiguous. Without waiving objections, Defendants argue that they are unable to produce these documents because they made a reasonable inquiry and found, according to prison officials, ACH Unit does not keep such logs. Defendants cannot be compelled to produce documents that do not exist. Plaintiff's motion to compel is denied.

Request for Production No. 9: "Please relinquish the following document(s); 4A2building unit log entry for January 26, 27, 28 of 2005. As well as entries for February 3rd, 8th, 9th, 10th, of 2005. Pursuant to E.V. 1530,1532,1600."

Ruling: Defendants objected to this request on the grounds that it is, ambiguous, not reasonably calculated to lead to the discovery of admissible evidence, on the grounds that the documents requested cannot be turned over to Plaintiff due to institutional safety and security concerns, and on the grounds that the documents reference activities unrelated to Plaintiff's claims but may pertain to third party activities. Defendants argue in opposition to this motion, that they have no direction as to which logs Plaintiff seeks, and that some logs maintained by prison officials in the Security Housing Unit contain confidential information that cannot be released to inmates. Plaintiff's request is narrowed to 4A2building unit log entry for January 26, 27, 28 of 2005 and February 3rd, 8th, 9th, 10th, of 2005 as it relates to Plaintiff and Defendants only. Defendants may redact any information pertaining to third party activities.

Request for Production No. 10: "All documents an any reports that refer or relate to the excessive use of force used on Jacobs at Corcoran state prison SHU 4A2building on January 26, 2005. Pursuant to Title 15, California Code of Regulations section 3268.1."

Ruling: Defendants objected to this request on the grounds that it is overly broad, burdensome, vague and ambiguous, and that without waiving objections, after a reasonable search and diligent inquiry no documents responsive to the request could be located. Defendants argue that, aside from Plaintiff's own inmate appeal, which Plaintiff already has a copy of, Defendants were unable to locate any other such documents. Defendants ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.