Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Pending before the court are plaintiff's motions for judicial intervention, for protection of legal property, and to compel discovery responses, as well as defendants' motion to vacate the scheduling order.
I. Motion for Judicial Intervention
The court issued an order on July 7, 2009, explaining that defendants Barter and Cooper had not been served with process because they could not be found at the institution or in the CDC locator, and ordering plaintiff to provide new addresses where these defendants could be served. Dckt. No. 49. The court advised plaintiff to seek such information through the California Public Records Act or any other means available, and wrote, "[i]f plaintiff's access to the required information is denied or unreasonably delayed, plaintiff may seek judicial intervention." On August 17, 2009, plaintiff filed a motion for judicial intervention, explaining that he requested the unserved defendants' information from his warden pursuant to the California Public Records Act but had not received a response. Pl.'s Mot. For Jud. Interven. at 1-3. Plaintiff claims that prison officials gave false information to the U.S. Marshal by stating that defendant Barter no longer worked at the institution. Id. at 2. Plaintiff claims that he personally recently saw Barter working at the institution, and submits a declaration by another inmate who also swears that he, too recently saw Barter working at the institution.*fn1 Id., Ex. B. Plaintiff later claimed that he had also seen defendant Cooper working at the institution. Mot. to Compel, Ex. C.
On November 5, 2009, the court informed plaintiff that the U.S. Marshal had also been unable to serve defendant Florez, and instructed plaintiff to seek Florez's address through the California Public Records Act or any other means available. Dckt. No. 65. On December 2, 2009, plaintiff filed another document titled "Notice of Submission of Documents and Further Directions to US Marshal." Dckt. No. 69. Plaintiff explained that he had sought the unserved defendants' addresses through requests to the warden pursuant to the California Records Act and through discovery, but the warden had not responded and defendants had objected to his discovery requests. Id. at 2-3. Plaintiff asked that the unserved defendants be served through the Department of Corrections Headquarters. Id. at 3.
Defendants have not opposed plaintiff's motion for judicial intervention. It appears that, despite his diligence in seeking the unserved defendants' addresses, plaintiff has been denied access to that information. Accordingly, the court orders defendants' counsel to query the Department of Corrections and Rehabilitation to ascertain whether the Department has relevant information that as to the whereabouts of defendants Barter, Cooper, and Florez. If any of these defendants are still employed with the Department of Corrections or Rehabilitation or any other California state agency, counsel shall provide the business address to plaintiff. If counsel is otherwise informed from the check of the Department's records of the business address of any of the defendants, counsel shall promptly provide the address to plaintiff. If counsel is informed from that records check as to the residence address of the any of the defendants, counsel shall promptly provide that information to the U.S. Marshal's office for this district so that the Marshal may complete his compliance with this court's order directing service of process. In the event that counsel, after conducting a good-faith inquiry, cannot ascertain the business or residence address of any or all of the defendants, counsel shall so inform the court. Defendants' counsel shall file and serve the appropriate response within thirty days of the date of this order.
II. Motion for Protection of Legal Property
On December 28, 2009, plaintiff filed a motion asking the court to issue an order to protect his legal property from confiscation by prison officials. Dckt. No. 77. He states that officers have threatened that his legal property will "come up missing," and that his cell has been searched in retaliation for filing an appeal. Id. He submits declarations from other inmates stating that their legal materials have been taken from them, that "when prisoners file 48 [sic] U.S.C. 1983 action usually one's property comes up missing," and that "usually, prison officials retaliate against inmates who initiate civil litigation by throwing their legal paper away in the hopes it will bring that action to a close." Id., Exs. A, B.
Plaintiff justifies his request by citing 18 U.S.C. § 3192, which states that the President of the United States shall "take all necessary measures for the transportation and safekeeping" of an extradited prisoner. See id. at 3-4. Plaintiff does not explain how this statute is applicable to his situation. As plaintiff does not allege that he has been harmed and merely engages in speculation that he may be harmed in the future, there is no basis for a court order. The motion is denied.
On September 28, 2009, plaintiff filed a motion to compel discovery responses. Dckt. No. 61. Defendants oppose. Dckt. No. 64.
Plaintiff claims that defendants' responses to his first set of interrogatories are evasive, as they "did not answer 90% of the interrogatories." Mot. to Compel at 2. He states that defendants' objections to his interrogatories are generally unfounded. Id., Ex. G. However, plaintiff does not state how any of defendants' interrogatory responses are evasive or why defendants' objections are unfounded. The court has reviewed the responses and does not find that they are so obviously evasive that plaintiff is entitled to relief without making specific arguments.
Plaintiff also states that page 5 of defendant Miller's interrogatory responses is missing. Id. at 2. Defendants state that there was a page missing from defendant Yaeger's responses, but that they have now provided plaintiff with a copy. Opp'n at ...