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Lamon v. Director

January 28, 2010

BARRY LAMON, PLAINTIFF,
v.
DIRECTOR, CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, ET AL., DEFENDANTS.



ORDER

Plaintiff is a state prison inmate proceeding pro se with a civil rights action under 42 U.S.C. §1983. He has filed a motion to compel, a motion to hold defendants' summary judgment motion in abeyance, and a motion to file single copies of his documents.

I. Motion To Compel

Plaintiff alleges that the court's order of June 30, 2009 is too narrowly tailored to be effective with respect to defendant Walker's personnel file, that defendants Downing, Johnson and Lorusso's answers to plaintiff's second set of interrogatories are evasive, that defendants Downing, Moghaddas, Johnson and Paizis's amended response to plaintiff's interrogatory number three is evasive, that defendant Ellis's responses to plaintiff's interrogatories and request for production of documents are evasive, and that plaintiff's second set of requests for admissions were not addressed in the court's ruling on plaintiff's first motion to compel. He also alleges that the CD of a hearing provided to him was blank and that he has not been given sufficient access to materials from his central file. Defendants have opposed the motion.

A. Defendant Walker's Amended Responses

Plaintiff revisits his claim that there must be information in defendant Walker's personnel file about his recruiting of inmates to act as peacekeepers and refers to the material supporting his amended traverse (docket no. 146). Nothing in this document causes the court to amend its previous rulings.

B. Defendants Downing, Johnson and Lorusso's Response to Second Set of Interrogatories

On the first page of the motion to compel, plaintiff contends that defendants Downing, Johnson and Lorusso's amended responses to plaintiff's second set of interrogatories are evasive. Docket No. 154 at 1. He does not address this contention in the body of the motion by explaining which answers he finds evasive or why he deems them to be evasive. Moreover, he has not attached copies of the responses he deems inadequate. See Local Rule 250.2 (c). He has not borne his burden of demonstrating he is entitled to an order compelling further discovery.

C. Defendants' Downing, Moghaddis, Johnson And Paizis's Amended Responses To Interrogatory Three

The court directed defendants Downing, Moghaddis, Johnson and Paizis to respond to interrogatory three, which asked whether certain sections of the California Administrative Code require them to obtain an inmate's informed consent before treating him with drugs. The defendants responded that the sections did not specifically require informed consent; that they must secure informed consent before administering certain psychotropic medications; but that these medications may be administered in an emergency without consent until a Keyhea*fn1 is requested. See, e.g., Docket No. 160-3 ¶ 3.

Plaintiff says that this answer is simply one more example of the defendants' "game-playing" because the defendants earlier maintained that these code sections governed the requirement to secure informed consent. Docket No. 154 at 3. If there are contradictions in the defendants' positions, plaintiff may be able to exploit them to his advantage. Defendants have answered plaintiff's question; plaintiff cannot compel them to answer in a manner satisfactory to him.

In the order of June 30, 2009, the court directed these same defendants to provide documents relating to claims by other inmates that these defendants misled the inmates about prescribed drugs and that these defendants improperly prescribed drugs. Defendants answered that they conducted a diligent search but do not have grievances in their possession or control raising these claims apart from grievances submitted by plaintiff. See, e.g. Docket No. 160-4 ¶ 2. Plaintiff argues that this answer is "fraudulent" because he knows of other inmates who have filed grievances alleging abuse by these defendants. Docket No. 154 at 4. He asks for a hearing "to address the continued efforts of defendants to suppress culpable evidence against themselves," but provides nothing but his own assertion that such documents exist. Id.

Plaintiff has not borne his burden of showing the existence of the documents he seeks or that the defendants have control over any such documents. See United States v. International Union Of Petroleum Workers, 870 F.2d 1450, 1452 (9th Cir. 1989); Alexander v. Federal Bureau of Investigation, 186 F.R.D. 128 (D.D.C. 1998).

Plaintiff also complains that he has been unable to play the CD of his Keyhea hearing because of delays in getting a CD player and because when a CD player was provided for him, the disc was blank. Docket No. 163 at 2-3. The court will ask counsel for defendants to ...


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