The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983.*fn1 Pending before the court are: 1) plaintiff's motion to compel, filed on 3/13/09 (# 35), to which defendants filed their opposition, on 3/30/09 (Docket #37), after which plaintiff filed a reply on 4/17/09 (# 44); 2) plaintiff's motion to compel, filed on 3/20/09 (# 36), which defendants opposed on 3/30/09 (#38); 3) plaintiff's motion for leave to file a second amended complaint and proposed second amended complaint, filed on 4/03/09 (# 40), to which defendants filed their opposition, on 4/24/09 (# 46), after which plaintiff filed a reply, on 5/11/09 (# 48); 4) plaintiff's motion for leave to propound additional discovery requests, filed on 4/09/09 (# 41), to which defendants filed their opposition, on 4/24/09 (# 45), to which plaintiff filed a reply, on 5/08/09 (# 47).
Plaintiff alleges, in his complaint, filed on November 6, 2007, that while housed at California State Prison - Sacramento (CSPS), his Eighth Amendment rights were violated by the following eleven defendants: Wardens J. Walker and J. Malfi;*fn2 Correctional Captain D. Leiber; Health Care Manager Karen Kelly; Business Services Manager Haythorne; Assistant Food Manager Hague; three Supervising Cooks II: Rodriguez, Ruller (originally misspelled by plaintiff as Rueller) and Arndt (misspelled by plaintiff as Arnt); two Correctional Cooks I Bernardino (mis-identified by plaintiff as Raymond) and Alice Smith. Complaint, pp. 2-5, 21. All defendants are expressly sued in their individual and official capacities. Id., at 2-5. Plaintiff claims that all eleven defendants have implemented a policy/procedure of feeding inmates in their assigned cells as a safety/security measure. Id., at 5-6.
Although plaintiff notes that he did not arrive at CSPS until December 7, 2004, he claims that defendants Haythorne, Hague, Rodriguez, Ruller and Arndt have been made personally aware, through "dozens of inmate complaints," of unsanitary food conditions and handling by prison staff since January 9, 2003, such as the rat/rodent nesting and mating in the main kitchen, but have only addressed this issue by the use of "stick[y] traps." Id., at 5-7. These defendants have issued repeated memoranda addressing prison staff throwing bread racks used for transporting food trays on the floor and then stacking them more than three high to expedite food service to inmates. Id., at 7. In addition the carts used for food service are also used for sheet exchange, transporting bed mattresses, personal property and housing unit supplies, and defendants do not enforce any health and safety standards to make sure the carts are properly cleaned before use in food transport. Id.
Plaintiff avers that various inmates have filed inmate appeals on the subject of food service practices; he states that an appeal by an inmate named Jackson, CDC # J-43666, revealed that correctional officials had allowed/authorized inmates to handle food who were not medically cleared to do so -- a later appeal by this inmate, Jackson, concerning deficient food health and safety standards were denied. Complaint, pp. 7-8. Plaintiff alleges that inmates Henry, CDC #P-64498,*fn3 and Douglas, CDC # H-533369, assigned to jobs in the main kitchen in December of 2005, from 4:00 a.m. to 11:30 a.m. discovered both dead and living rats in the main kitchen, with the dead ones caught in sticky traps. Id., at 8. In January of 2006, inmate Douglas told plaintiff about the rat/rodent infestation in the main kitchen and their access to food stored in the dry goods room and prepared food left out to cool overnight, advised him not to eat certain foods and stated that he was being treated medically for what a doctor had told him was a result of food poisoning from food he ate while working in the main kitchen. Id., at 9.
In February of 2006, an inmate named Wright, CDC # J-67360, according to plaintiff, was treated for a severe case of food poisoning after consuming an evening meal, and thereafter discovered numerous instances of other CSPS inmates who had been, or were being, treated for "exposure to food poisoning." Complaint, p. 9. Wright initiated a "class action group inmate appeal," seeking the extermination of all rodents from the main kitchen, which appeal was "obstructed, ignored and denied" as a result of defendant Walker's failure to protect the health and safety of CSPS inmates. Id.
Plaintiff alleges that, on Feb. 17, 2006, he was diagnosed and treated for food poisoning as a result of an evening meal. Complaint, p. 9. Plaintiff alleges that two weeks earlier a registered nurse, named J. Cunningham (not a defendant), had examined plaintiff's symptoms at that time and had recommended treatment "contrary to the prison[']s doctor." Id., at 9-10. Plaintiff also claims (although it is unclear whether plaintiff is referring to Feb. 17, 2006, or two weeks earlier) that the prison doctor, Dr. Duc (not a defendant), had warned plaintiff about the CSPS food service food and told plaintiff that he had treated a high number of food poisoning cases at CSPS and that the food service program needed to be "upgraded." Id., at 10.
Plaintiff claims that he filed an inmate appeal on March 2, 2006, related to the issues raised herein and during his April 14, 2006, interview with defendant Rodriguez was asked by this defendant to withdraw the appeal because he had the main kitchen rodent problem under control. Complaint, p. 10. He also said that in his 15 years in the food service department at CSPS, there had always been rats/rodents in the main kitchen, which are controlled by sticky traps. Id. Plaintiff asked how defendant Rodriguez could purport to have the problem under control when, on March 24, 2006, rodent feces and bitemarks had been discovered in up to a dozen sheets of iced cake left out to cool the evening before, which incident defendant Rodriguez denied, despite the declaration by a correctional cook I, Cronjager (not a defendant), who had personally reported the incident to her supervisor, defendant Rodriguez. Id. & Exhibit G.
Plaintiff claims that inmate Henry, referenced above, reported to his supervisors on March 4, 2006, that a rat/rodent came into direct contact with his boot. Complaint, p. 11. Among the exhibits plaintiff has appended to his complaint is a group appeal, Log No. SAC 06-00957, filed on April 3, 2006, complaining of "ongoing unsanitary food service at CSP-Sacramento," specifying a dinner tray having been served with hair in it, but also complaining of various deficiencies in food handling, partially granted at the second level and denied at the director's level. Complaint, Exhibit O, pp. 83-91. (However, this appeal does not appear to have plaintiff's name on it anywhere). Plaintiff goes on to set forth his unsuccessful efforts to obtain relief by way of contacting the American Civil Liberties Union, filing of a grand jury complaint in Sacramento County, writing Senator Dianne Feinstein, writing the state Department of Health Services, writing Kerry McClelland of the Office of the Inspector General, writing "defendant" Woodford,*fn4 and writing defendant Walker. Id., at 11-13. Plaintiff also complains that defendants Walker, Malfi, Leiber and Kelly have been deliberately indifferent to a substantial risk of harm to plaintiff, have subjected him to unconstitutional conditions of confinement by their cell feeding practices and procedures, resulting in the food poisoning of plaintiff and others, and have been obstructive, ignored and denied the issues raised. Id., at 13-14.
Plaintiff contends that defendant Leiber has been put on notice of the defective food service and has denied each inmate appeal addressing the issue. Complaint, pp. 15-16. Plaintiff contends that a July 13, 2006, meeting between the C-facility Men's Advisory Council and defendants Leiber, Haythorne, and Hague, defendants offered "a sophisticated justification for the high number of inmate food poisoning cases at CSPS," but defendant Hague admitted that she had seen subordinates stack bread racks during food service and so informed defendant Leiber; she also advised Leiber that CSPS staff would only adhere to health and safety standards in food service when supervised. Id., at 16-17.
Plaintiff contends that rodent infestation continues throughout the C-facility main kitchen and is not a sudden or temporary invasion and defendant Leiber has done nothing to correct the matters complained of. Complaint, pp. 17-18. Defendant Malfi assigned plaintiff's mother's citizen's complaint about the food conditions to a Lieutenant Flint (not a defendant), who did contact his mother, Flora Lee, by phone, but the investigation has been obstructed and defendant Leiber has not provided her with a written response because of the instant lawsuit. Id., at 18. Plaintiff, assigned as of June 14, 2006, through August 11, 2006, as a "butcher's helper" in the CSPS main kitchen, had a conversation with his direct supervisor, non-defendant D.S. Abellon, along with inmate Jackson (referenced earlier), and Abellon admitted there was a rodent infestation there and that it would take a complete fumigation to eliminate the rats/rodents.*fn5 Id., at 18-19. Plaintiff mailed defendant Malfi a "confidential notice" about the conditions complained of on around August 6, 2006, which was ignored. Id., at 19. Defendants Smith and Raymond (actually, Bernardino) were amply apprised of the issues raised herein and refused to enforce health and safety standards in violation of plaintiff's Eighth Amendment rights. Id. Plaintiff also alleges that these defendants are obligated to uphold state health and safety standards, listing code sections. Id. In addition to his claims of a violation of his Eighth Amendment rights against all defendants, plaintiff alleges a claim of retaliation by defendant Hague for the filing of this action in the form of a "bogus and false rules violation report...charging plaintiff with over-familiarity." Id., at 21, 24. Plaintiff seeks declaratory and injunctive relief,*fn6 as well as money, including punitive, damages. Id., at 22-23.
Motion for Leave to Amend
Plaintiff seeks leave to file a second amended complaint; however, in doing so, he has failed to submit an appropriate separate motion to accompany his proposed second amended complaint. By failing to file a motion in accordance with Fed. R. Civ. P. 7(b)(1)(B), he "fails to state with particularity the grounds for seeking the order." Thus, the court must review the proposed second amended complaint in order to discern the basis for any amendment. In the proposed second amended complaint, which the court will construe in part as a motion to amend, plaintiff seeks to name three additional defendants: the California Department of Corrections and Rehabilitation (CDCR); Director of CDCR Adult Institutions Susan Hubbard; Chief of Inmate Appeals Nola Grannis (whom plaintiff describes as "Chief Correctional Administrator for the CDCR"). Motion to Amend (MTA), pp. 1-3.
The Federal Rules of Civil Procedure provide that a party may amend his or her pleading "once as a matter of course at any time before a responsive pleading is served." Fed. R. Civ. P. 15(a). However, as in the instant case, once an answer has been filed, a party may amend a pleading only by leave of court or by written consent of the adverse party. See Rule 15(a)(2). Although "[t]he court should freely give leave when justice so requires," under Rule 15(a)(2), and there is presumption in favor of granting leave to amend, such leave need not be granted where such amendment (1) would prejudice the opposing party; (2) is sought in bad faith; (3) produces an undue delay in litigation; or (4) is futile. Eminence Capital LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003), citing Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227 (1962); Amerisource Bergen Corp. v. Dialysist West, Inc.,465 F.3d 946, 951 (9th Cir. 2006). This circuit accords the greatest weight to "the consideration of prejudice to the opposing party," the prejudice-showing burden resting on the opposing party. Eminence Capital, 316 F.3d at 1052. "Absent prejudice, or a strong showing of any of the remaining Foman factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend." Id. [Emphasis in original].
However, in the first place in this instance, plaintiff is barred from proceeding upon his claims against the entity, CDCR, by the Eleventh Amendment. The Eleventh Amendment serves as a jurisdictional bar to suits brought by private parties against a state or state agency unless the state or the agency consents to such suit. See Quern v. Jordan, 440 U.S. 332 (1979); Alabama v. Pugh, 438 U.S. 781 (1978)( per curiam); Jackson v. Hayakawa, 682 F.2d 1344, 1349-50 (9th Cir. 1982). As the State of California has by no means consented to suit, plaintiff's claims against CDCR are frivolous, thus, leave to amend to name this defendant should not be granted.
As to defendants Hubbard and Grannis, plaintiff seeks to sue these individuals in both their individual and official capacities. As to his claims against these individuals in their official capacities, it is likely that plaintiff's injunctive relief claims regarding food safety standards at CSPS will ultimately be dismissed as moot (see fn. 6), thus, his official capacity claims against these defendants do not appear viable. Moreover, plaintiff fails to explain why he failed to allege the involvement of the newly named defendants when he filed the original complaint, since, as defendants note, their alleged involvement occurred before the plaintiff filed this lawsuit. Opposition (Opp., p. 2). Plaintiff's effort to explain the default on the basis that he had originally been proceeding in a separate action is not persuasive. Reply, p. 4.
To the extent he seeks to sue defendant Hubbard in an individual capacity, plaintiff does not frame a claim against her by simply alleging that she, among the litany of other defendants he lists, had personal awareness of various inmate complaints about CSPS' allegedly deficient health and safety standards. MTA, p. 7. Nor does plaintiff allege sufficient claims by simply pointing out that this defendant has certain responsibilities regarding the formulation and implementation of departmental policies and regulations. MTA, p. 19, Exhibit (Exh.) L, p. 114. To the extent, in his reply, he seeks to implicate both CDCR and Hubbard for implementation of a cell-feeding policy at CSPS, his allegations that this practice constituted cruel and unusual punishment or deliberate indifference because the procedure permitted health and safety violations is too sweeping and unsupported to state a claim. Reply, p. 7.
The Civil Rights Act under which this action was filed provides as follows: Every person who, under color of [state law]... subjects, or causes to be subjected, any citizen of the United States... to the deprivation of any rights, privileges, or immunities secured by the Constitution... shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
Moreover, supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Plaintiff alleges no colorable claims against defendant Hubbard.
With regard to defendant Grannis, whom he seeks to also sue in an individual capacity and for whom he includes an exhibit of her duty statement in her capacity as chief of inmate appeals, plaintiff seeks to implicate her for having frustrated his appeal efforts which helped ensure "defendant Hague's code of silence retaliation" and fostered "the infamous code of silence by permitting defendant[s'] Walker and Malfi to deny and deprive" plaintiff of documents that supported his appeals to the director's level regarding the food health and safety conditions at CSPS. MTA, p. 19, Exh. M, p. 115. Plaintiff also alleges that defendant Grannis allowed subordinates to review his appeals (and exhibits) "in a manner contrary to the CDCR's DOM" in order to conceal the alleged Eighth Amendment violations of CSPS' food service. Id., at 19.
Plaintiff is informed that prisoners do not have a "separate constitutional entitlement to a specific prison grievance procedure." Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003), citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). Even the nonexistence of, or the failure of prison officials to properly implement, an administrative appeals process within the prison system does not raise constitutional concerns. Mann v. Adams, 855 F.2d at 640. See also, Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993); Flick v. Alba, 932 F.2d 728 (8th Cir. 1991). Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D.Ill. 1982) ("[A prison] grievance procedure is a procedural right only, it does not confer any substantive right upon the inmates. Hence, it does not give rise to a protected liberty interest requiring the procedural protections envisioned by the fourteenth amendment"). Specifically, a failure to process a grievance does not state a constitutional violation. Buckley, supra. State regulations give rise to a liberty interest protected by the Due Process Clause of the federal constitution only if those regulations pertain to "freedom from restraint" that "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 2300 (1995).*fn7 Plaintiff's claims against defendant Grannis are not sufficiently cognizable and plaintiff should not be permitted to amend to frame allegations against her.
Defendants point out that plaintiff in seeking to amend the complaint to name Hubbard and Grannis as new defendants for having "omitted to perform duties legally required by condoning, thereby acting in concert" with the other defendants is not sufficient. Opp., p. 5, citing MTA, ¶ 53. There is an absence of specific facts alleged to support the allegations. Defendants sued in their individual capacity must be alleged to have: personally participated in the alleged deprivation of constitutional rights; known of the violations and failed to act to prevent them; or implemented a policy that repudiates constitutional rights and was the moving force behind the alleged violations. Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991); Hansen v. Black, 885 F.2d 642 (9th Cir. 1989); Taylor v. List, 880 F.2d 1040 (9th Cir. 1989). "Although a § 1983 claim has been described as 'a species of tort liability,' Imbler v. Pachtman, 424 U.S. 409, 417, 96 S.Ct. 984, 988, 47 L.Ed.2d 128, it is perfectly clear that not every injury in which a state official has played some part is actionable under that statute." Martinez v. State of California, 444 U.S. 277, 285, 100 S.Ct. 553, 559 (1980). "Without proximate cause, there is no § 1983 liability." Van Ort v. Estate of Stanewich, 92 F.3d 831, 837 (9th Cir. 1996).
The court agrees with defendants that to the extent plaintiff wishes to add new facts in support of his claims of retaliation and deliberate indifference against the existing defendants, he is not limited to the pleadings in order to do so. Opp., p. 2. The court finds that leave to further amend in this instance should not be granted because the factors to be evaluated weigh against it. There is no question that further amendment would prejudice not only the opposing party, but also unduly burden this already significantly burdened court, and would certainly produce an undue delay in this litigation which has entered its third year, and, while leave to further amend may not be sought in bad faith, it appears that the proposed amendments are futile. Eminence Capital LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). The motion for leave to amend to proceed upon a second amended complaint will be denied.
Plaintiff moves for an order compelling defendants Walker, Haythorne, Leiber, Hague and Ruller to respond to his various requests for production. First Motion to Compel (MTC), pp. 1-2. Plaintiff contends that each of these defendants have been evasive and incomplete in their responses. Id., at 2. Plaintiff argues that the defendants have invoked the official information privilege without a sufficient basis, have asserted privacy rights under state law that are governed by federal law that are outweighed by plaintiff's need for information and that he is entitled to all relevant information. Id., at 5-6.
Defendants argue that federal common law recognizes that a qualified official information privilege and government personnel files are considered official information, citing Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir. 1990). Opposition (Opp.), p. 3. Defendants further argue that of the 125 production requests plaintiff propounded upon defendants, only sixteen were not responded to on the basis of the objections asserted. Id., at 4. Nevertheless, defendants contend, plaintiff seeks further responses to ninety-nine requests, despite the fact that as to eighty-three of these responses, defendant have produced documents or asserted an inability to comply as they had no responsive documents within their possession, custody or control. Id.
Plaintiff responds that with regard to the requests at issue, at least with respect to defendant Walker, that this defendant has failed to provide a privilege log or abide by the requisite procedures for asserting the official information privilege. Reply, pp. 4-5. As to the RFPs at issue directed to defendants Haythorne, Leiber, Hague and Ruller, plaintiff asks that they be required to provide "a verified statement" from an employee in a position to know that "after a diligent search," no responsive documents could be found. Id., at 5-8.
"The governmental privilege must be formally asserted and delineated in order to be raised properly." Kerr v. U.S. Dist. Court for the No. Dist. of California, 511 F.2d 192, 198 (9th Cir. 1975).
"There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer... "
Kerr, supra, at 198 (quoting United States v. Reynolds, 345 U.S. 1, 7-8, 73 S.Ct. 528, 532 (1953)). The procedural prerequisites apply to all forms of "executive" privilege. See, e.g.,Yang v. Reno, 157 F.R.D. 625, 632 (M.D.Pa. 1994) (state secrets and deliberative process privileges); Martin v. Albany Business Journal, Inc., 780 F. Supp. 927, 932 (N.D.N.Y. 1992) (finding "informant's privilege" to be a governmental privilege). The claim should be made by a person in an executive policy position. See Reynolds, 345 U.S. at 8 n. 20, 73 S.Ct. at 532 n. 20 ("The essential matter is that the decision to object should be taken by the minister who is the political head of the department, and that he [or she] should have seen and considered the contents of the documents and himself have formed the view that on grounds of public interest they ought not to be produced..."); (see also, Kerr, supra, at 198) (denying mandamus petition brought by California Adult Authority executive personnel for district court to vacate discovery order); (see also, Scott Paper Co. v. United States, 943 F. Supp. 501-03 (E.D. Pa. 1996) (requiring IRS Commissioner to invoke deliberative process privilege); Yang, 157 F.R.D. at 632-34 & n.4 (1994) (considering official status necessary to invoke privilege, collecting cases, and finding executive secretary of National Security Council could not invoke governmental privileges); Mobil Oil Corp. v. Department of Energy, 102 F.R.D. 1, 6 (D.C.N.Y. 1983) (official invoking the privilege may be an agency head or a subordinate with high authority). Some jurisdictions do not allow the agency head to delegate the authority to claim the privilege. Scott, 943 F. Supp. at 502. Other jurisdictions which allow the authority to be delegated require the delegation to be accompanied by detailed guidelines regarding the use of the privilege. Id. at 503. For purposes of prisoner litigation, the warden, assistant warden or appropriately delegated prison officials should be sufficient.
Regardless of who invokes the privilege, "the information for which the privilege is claimed must be specified, with an explanation why it properly falls within the scope of the privilege." In re Sealed Case, 856 F.2d 268, 271 (D.C. Cir. 1988) (law enforcement privilege) (emphasis added). An official cannot invoke a privilege without personally considering the material for which the privilege is sought. Yang, 157 F.R.D. at 634.
"To determine whether the information sought is privileged, courts must weigh the potential benefits of the disclosure against the potential disadvantages. If the latter is greater, the privilege bars discovery." Sanchez v. City of Santa Ana, supra, 936 F.2d at 1033-34. "The balancing approach of the Ninth Circuit is mirrored in this and other courts' previous determinations that a balancing test is appropriate when the disclosure of law enforcement files in a civil action is at issue." Doubleday v. Ruh, 149 F.R.D. 601, 609 (E.D.Cal. 1993).
At the outset, with respect to defendants' responses to plaintiff's discovery requests relative to the requests at issue within both motions herein wherein defendants have invoked the official information privilege, including any assertion that 15 CCR §§ 321, 370 preclude disclosure, plaintiff is correct that they have failed to comply with the appropriate procedural requisites. Therefore, they have waived their objections based on any such qualified privilege, and defendants must supplement all responses to include any information withheld on that basis within 14 days.
Plaintiff seeks a response, or further production, in response to requests numbered 1, 3-6, 8-10 of his first set of his requests for production of documents (RFP) served upon defendant Walker and requests numbered 1, 3-15 of his second set. MTC I, p. 1, Exhs. A & B.
1. All documents which would mention, discuss, or verify third level director's review and fact finder/confidential inquiry into group appeal log # SAC-C-06-00957 at exhibit "A" in First Set of Admissions to Defendant Leiber served concurrently herewith.
Responding party objects to this is [sic] request on the grounds it is overbroad, references a document that is not attached to these requests, calls for speculation, violates the privacy rights of third persons who are not parties to this action, and seeks the disclosure of documents protected under section 3321 and 3370. Based on these objections, responding party will not answer this request.
It is true that plaintiff has not attached the group appeal at issue to the request with this motion to compel, and apparently did not attach it to the above RFP served on defendant Walker; it appears in serving the RFP upon this defendant, plaintiff may have intended for him to cross-reference it as it is identified as attached instead to request for admissions served upon another defendant. On the other hand, plaintiff appears to have included copies of this group appeal as Exh. O to his complaint. See Complaint, pp. 83-91. However, plaintiff was not only not the lead inmate on the group appeal, it is not clear that he was among the inmates who signed this grievance. This court is not persuaded by the defendant's assertion of the privacy rights of third parties in this context, nor is the fact that the inmate appeal was not attached to the request dispositive, if only for the fact that other requests were responded to even though this same objection was raised as to that point. See, e.g. RFP 2 directed to defendant Walker. The fact that plaintiff may not have even been a part of this group inmate appeal in the first place could deem it irrelevant for purposes of this complaint; on the other hand, it does concern food sanitation grievance during a period in which plaintiff was apparently housed there. Although plaintiff's request is not particularly focused, the motion will be granted to the extent that documents exist relating to any "fact finder/confidential inquiry" into this group appeal. In addition to asserting violations of the privacy of third-party inmates, defendants contend that plaintiff could obtain the grievance from the inmate. As noted, plaintiff has already attached a copy of the group grievance at issue in this request, including the third level decision as Exh. O to his complaint. It appears that what plaintiff is seeking is any other documentation regarding any inquiry into the substance of this grievance. Defendant asks that if the court grants plaintiff's request, that he be permitted to redact the names of all inmates and any medical records submitted with the appeal. The court does not construe the request as primarily implicating inmates' medical records. Instead, plaintiff appears to be seeking documentation of the inquiry that was conducted in response to this grievance. To the extent the inmates' medical records are implicated, defendant may redact that information, but if the defendant has documentation about any fact finding or inquiry conducted in response to the grievance, the motion as to this request, as modified, is granted.
As to RFP 3, seeking documents relating to the director's level appeal response to appeal Log No. SAC-B-07-00150, while defendant posits objections in the response, he also asserts without waiving objections that he does not have any documents responsive to that request in his possession, custody or control beyond those plaintiff has produced with the requests. MTC, p. 12. The court cannot direct a party to produce documents that he does not have within his possession, custody or control and the motion as to this request will be denied.
In RFP nos. 4 and 5, plaintiff seeks documents verifying the current prison address of two inmates, each of whom he characterizes as a "material witness," Terral Henry, CDC # P-64498, and Michael Wallace, CDC # E-19190, respectively. MTC, p. 13. To each of these requests, defendant posits the same objections, that the request "is overbroad, vague as to the meaning of 'material witness,' violates the privacy rights of third persons who are not parties to this action, and seeks disclosure of documents protected under section 3321 and 3370." Based on the objections, defendant refuses to respond to the request.
While these requests might have been better posed as interrogatories, defendants' opposition to these requests on the basis that they encompass "just about every document in these inmates' central and medical files," and implicate their privacy rights with regard to disclosure of their medical records and other personal information, is not well-taken. It appears most likely that plaintiff is seeking only the most current address for these two inmates for purposes either of communicating with them to obtain declarations in support of any opposition to a pretrial dispositive motion (or for moving for summary judgment himself) or for purposes of having them appear as trial witnesses, should this case proceed to trial. While it is true that, should plaintiff make the requisite showing of the materiality of any testimony they might have to offer, it is the court which will decide whether or not to issue any writ of habeas corpus ad testificandum for the appearance of either or both at trial (Opp., p. 8), there does not appear to be an overriding objection to plaintiff having access to the current location of these individuals for plaintiff to seek to correspond with them by mail in accordance with the relevant prison regulations. Defendant Walker is directed to construe these requests for production as interrogatories seeking only the current address of these inmates and to provide this information to plaintiff within 14 days. Thus, as modified, plaintiff's motion as to RFP nos. 4 and 5 directed to defendant Walker will be granted.
As to RFP 6, wherein plaintiff asks for trial size photos that would verify the discovery of Supervisor Cook I Cronjager of rodent contamination of sheet cakes on March 24, 2006, although defendant Walker interposes form objections to any such photos, i.e., objecting on grounds of overbreadth, vagueness, failure to identify the documents sought with "reasonable particularity," and lack of foundation, he also asserts, without waiving the objections, that he is not in possession, custody or control of any documents responsive to the request which defendant assumes is in reference to a declaration by Cronjager*fn8 regarding the condition of particular sheet cakes. The court cannot compel the production of documents which defendant maintains he does not have in his possession, custody or control. However, because defendant Walker is the warden of CSPS and he is sued in both his individual and official capacities, the court finds that as the warden, in his official capacity, prison-related documentation or photographs within the facility are within this defendant's possession, custody or control. Therefore, within 14 days, defendant Walker must supplement his response to inform plaintiff whether or not to his knowledge any such photographs exist, and if they do, the defendant must produce them (within the same time frame). Therefore, as modified, plaintiff's motion with respect to RFP no. 6 is granted.
The court will also require defendant Walker to supplement his responses to RFP nos. 8, 9 and 10, in the same fashion within 14 days, each of which seek production of photographs, RFP no. 8, asking for a photo of rodent(s) caught by pest control in the CSPS main kitchen; RFP no. 9, seeking photos of the area in the CSPS main kitchen where an inmate named Michael Wallace, CDC # E-19190, witnessed a "rodent nest," and RFP no. 10, seeking a photo of a dead rodent witnessed by the same inmate in a pan of refried beans in the CSPS main kitchen. Therefore, solely as modified, plaintiff's motion with regard to RFP nos. 8-10 is granted.
As to RFP 1 of the second set of RFP directed to defendant Walker, wherein plaintiff seeks documents referencing CSPS "retention policy for inspection reports" at CSPS during the times relevant for this lawsuit, defendant Walker objects on the grounds of overbreadth and vagueness, but nevertheless, without waiving these objections, indicates that he is producing specifically identified documents within his possession, custody and control. Plaintiff's motion as to this request will be denied.
In RFP 3, plaintiff asks for "[a]ll documents which would mention, discuss, or verify hazardous analysis associated with duties of defendant Ruller at CSPS." MTC, p. 19. After positing various form objections, including, inter alia, that the request is not reasonably calculated to lead to the discovery of admissible evidence, that is unduly burdensome and oppressive because the Hazard Analysis Critical Control Point (HACCP) program is a multi-volume series and plaintiff has failed to specify any particular section, defendant refuses to produce the HACCP program "unless plaintiff specifies which section he seeks." MTC, p. 20. Nevertheless, defendant has produced several exhibits which appear to be relevant to the responsibilities of defendant Ruller, described as a supervising cook II in the complaint, including but not limited to a section of the Department Operations Manual and a job description for a supervising correctional cook. The court finds that defendant appears to have provided plaintiff with relevant information regarding defendant Ruller's position and that he has also agreed to provide information from the HACCP program if plaintiff would follow up with a request for specific sections. Moreover, in a supplemental response served upon plaintiff regarding an inquiry of another defendant, Rodriguez, plaintiff was informed of the following:
HACCP stands for Hazard Analysis and Critical Control Points, which is a food safety and self-inspection system that highlights potentially hazardous foods and how they are handled in the food service environment. HACCP does not include training on how to respond to the presence of rodents in areas where food is prepared or stored. Responding party does not have specific training in responding to the presence of rodents; however, responding party immediately contacts vector control if he learns or is informed of the presence of rodents in an where [sic] food is prepared or stored.
Opp., Esquivel Dec., Exh. 7, p. 52. The motion as to this request will be denied.
For the same reasons set forth as to the immediately preceding RFP, plaintiff's motion with regard to RFP 4, a request regarding the "critical control point training and implementation" associated with defendant Ruller's duties, is also denied.
As to RFP 5, defendant points out in the opposition that defendant has supplemented the response, which the court's review indicates does, indeed, moot the request regarding documentation of defendant Kelly's putative removal as CSPS Health Care Manager. Opp., p. 8, Esquivel Dec., Exh. 6. Not waiving objections made, in the supplemental response defendant's counsel asserts that a reasonable and diligent search was conducted after which it was determined that "no such documents exist." Id. Plaintiff's general insistence (see reply) that responses must be further verified is not well-taken. The motion as to RFP 5 is denied.
As to RFP 6, citing Fed. R. Evid. 501, plaintiff seeks "confidential records and reports...generated in response to appeal log # SAC-C-06-01460," filed in a case related to this one by an inmate Campbell, CDC # H-07298, at CSPS. MTC, p. 21. Court records do demonstrate that both the instant case and Jackson v. Walker, et al. CIV-S-06-2023 WBS GGH P are related to Campbell v. CDCR, et al., CIV-S-07-1419 WBS GGH P.
Among the objections posited to this request, which defendant has refused to answer are that: it is vague in its entirety, lacks foundation, fails to state with particularity the documents sought, violates the privacy right of third persons who are not parties to this lawsuit, and seeks production of document [sic] protected under 3321 and 3370 of Title 15 of the California Code of Regulations.
The court does not find this appeal attached to plaintiff's complaint but, as noted, plaintiff Campbell is proceeding in this court on a related case, seeking to implicate the same defendants for unsanitary food conditions, and medical conditions allegedly related thereto, at CSPS. Attached to plaintiff Campbell's July 18, 2007, complaint in CIV-S-07-1419, are the various levels of his appeal and the responses in log # SAC-C-06-01460 at Exhs. O and P, concerning an alleged medical condition arising from food poisoning at CSPS. In opposition to the request, defendant asks that if the request is granted, that defendant be permitted to redact personal identifying information and medical records submitted with the grievance to protect inmate Campbell's privacy and his rights under HIPPA. Opp., p. 8. Because the request seeks information generated in response to Campbell's grievance, it does not appear to implicate the third party privacy rights or HIPPA concerns. Plaintiff appears to be seeking documentation of the type of inquiry that was pursued in response to the grievance and ...