The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. This action is referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B), Local General Order No. 262, and E.D. Cal. L.R. ("Local Rule") 302. Presently pending are several motions, identified below, filed by both plaintiff and defendants.
This action proceeds on plaintiff's original complaint, filed April 25, 2007, against defendants J.E. Tilton (Secretary, California Department of Corrections and Rehabilitation ("CDCR")), T. Lockwood (Chief, Regulation and Policy Management Branch, CDCR), K. Brandon (Correctional Officer ("CO") at California State Prison-Sacramento ("CSPS"), G. Parker (also a CSP-S Correctional Officer), and J.E. Mayfield (CSP-S Correctional Counselor II).*fn1
The complaint (Dkt. No. 1) alleges that defendants erroneously validated plaintiff as a gang member while incarcerated at CSP-S, resulting in his placement in the maximum security housing unit ("SHU") and continued following to his transfer to CSP-Corcoran, where plaintiff remains incarcerated. Plaintiff contends that defendants acted without due process because they allegedly relied on fraudulent or unreliable confidential information from staff or other inmates, and/or relied inappropriately on plaintiff's Hispanic ethnic status, locale of commitment, and association with other prisoners within his ethnic group, and/or acted in retaliation against plaintiff for filing administrative grievances. Plaintiff also alleges that his gang validation and SHU placement have caused him to be repeatedly denied parole.*fn2
Service of the complaint was found appropriate on the above-named defendants. (Dkt. No. 8, filed March 6, 2008.) All defendants waived service of process (Dkt. Nos. 16, 22), and filed a motion to dismiss (Dkt. No. 19). On March 3, 2009, the district judge adopted the findings and recommendations of the former magistrate judge that defendants' motion to dismiss be granted on plaintiff's due process claim against defendant Mayfield, but denied in all other respects; Mayfield remains in this action on plaintiff's other claims. (Dkt. Nos. 30, 31.)
Defendants answered the complaint on March 3, 2009 (Dkt. No. 32), and the court thereafter, on March 13, 2009, issued an order authorizing the commencement of discovery (without imposing deadlines) (Dkt. No. 33). Defendants filed a motion for summary judgment on November 19, 2009 (Dkt. No. 45), amidst several unresolved discovery disputes. After the reassignment of this case to the undersigned, this court issued two orders on March 26, 2010:
(1) a Discovery and Scheduling Order (Dkt. No. 57), setting a discovery and discovery-motion deadline of July 1, 2010, and a dispositive motion deadline of September 30, 2010; and (2) an order addressing the outstanding discovery disputes and denying defendants' motion for summary judgment without prejudice to the filing of a timely-filed amended motion after the close of discovery (Dkt. No. 58).
The court thereafter granted defendants' requests for extensions of time within which to respond to discovery requests. (Dkt. Nos. 60 (filed 4/23/10), 63 (filed 6/18/10).) When the court granted defendants' third request for extension of time, the undersigned extended the discovery deadline to August 20, 2010, and the dispositive motion deadline to November 19, 2010. (Dkt. No. 66.) That order was signed on July 8, 2009, and filed on July 9, 2010.
Meanwhile, on July 7, 2010, defendants filed an Amended Motion for Summary Judgment (Dkt. No. 67), while, on July 8, 2010, plaintiff filed a motion to compel discovery and to file an amended complaint (Dkt. No. 71), and his fourth motion for appointment of counsel (Dkt. No. 70). Defendants filed oppositions to plaintiff's motions (Dkt. Nos. 72, 73), while plaintiff filed motions for extension of time, to strike defendants' motion for summary judgment, and for protective order (Dkt. Nos. 74-76), as well as replies to defendants' opposition to plaintiff's motions (Dkt. Nos. 77, 79, 80), and further briefing in support of plaintiff's motion for protective order (Dkt. No. 78). These several matters are now addressed by the court.
A. MOTION TO STRIKE THE AMENDED MOTION FOR SUMMARY JUDGMENT
Defendants filed their Amended Motion for Summary Judgment (Dkt. No. 67) on July 7, 2010. While timely filed within the prior deadlines, the court nearly simultaneously extended the discovery deadline to August 20, 2010 (Dkt. No. 66), thus rendering the motion for summary judgment prematurely filed (through no fault of defendants). This timing problem, and the fact that there remain outstanding discovery disputes, require that defendants' summary judgment motion be vacated without prejudice to the timely filing of a "Second Amended Motion for Summary Judgment." Thus, the court will, in substance, grant plaintiff's "Motion to Strike Defendants['] Premature Amended Motion for Summary Judgment Until This Court Rules on Plaintiff['s] Motion to Compel Discovery...." (Dkt. No. 75.)*fn3
B. MOTION TO COMPEL DISCOVERY
Plaintiff has filed one motion that seeks both to compel discovery and leave of court to file an amended complaint. (Dkt. No. 71.) The court first addresses plaintiff's discovery motion; that portion of plaintiff's motion seeking leave to file an amended complaint is addressed separately below.*fn4
Plaintiff generally challenges defendants' discovery responses as untimely and inadequate, while specifically seeking disclosure of the "name[s] of prison officials who ha[ve]... filed or approved confidential information which does not me[e]t the reliability criteria and [was] filed against plaintiff... for retaliatory purposes or in [a] discriminatory manner to subject plaintiff to be validated as a prison gang associate by false, unreliable, fraudulent information...." (Dkt. No. 71, at 14; see generally, id. at 30-73.)
Defendants respond in part that these same issues were asserted in plaintiff's discovery motion filed July 23, 2009 (Dkt. No. 39), and that the court has not yet ruled on that motion. However, upon reassignment of this case and extension of the discovery deadline, the undersigned denied this and other pending motions without prejudice to their renewal. (Dkt. No. 58, at 2, 4.) Thus, the court now addresses only those matters raised in plaintiff's current briefing; however, as necessary, the court references the discovery requests and responses fully included in plaintiff's July 23, 2009 filing (Dkt. No. 39).
1. Plaintiff's Requests for Production (Set One)
Plaintiff served on all defendants his Requests for Production (Set One) on March 10, 2009, and responses were served by mail on April 24, 2009 (see Dkt. No. 39-1, at 50), which were timely within the 45-day deadline set by the initial discovery order in this case (Dkt. No. 33). Plaintiff initially contends that he received defendants' responses three to four weeks late because they were improperly addressed, failing to designate that plaintiff was housed in the SHU, which had a separate postal box number.*fn5 However, plaintiff does not assert that he was prejudiced thereby and the court does not find any prejudice. Defendants sent their responses to the correct inmate at the correct institution, and the institutional delay in plaintiff's receipt cannot reasonably be attributable to defendants. Accordingly, plaintiff's motion will be denied to the extent plaintiff seeks, based on an untimeliness argument, to strike defendants' production responses or deem defendants' objections waived.
On May 11, 2009, plaintiff sent a letter to defendants requesting generally that they supplement all of their responses. (Dkt. No. 39-1, at 21.) In a June 2, 2009 letter, defendants responded in pertinent part (Dkt. No. 39-1, at 51) (emphasis added):
Regarding Defendants' response to Request No. 1 [which sought "[t]he complete prison file of Reno Fuentes Rios " (Dkt. No. 39-1, at 14)], you requested a complete copy of your central file. Defendants informed you that the non-confidential portions of your central file are available for inspection and copying under institutional policies and procedures. For institutional safety and security reasons, you are not allowed access to the confidential portions of your central file. Accordingly, because Defendants informed you where the responsive documents can be located, Defendants' response is complete and cannot be supplemented..... Regarding Defendants' response to Request No. 9 [which sought "[a]ny and all debriefing reports that refer to or described Reno Fuentes Rios" (Dkt. No. 39-1, at 16)], you requested all debriefing reports that refer to or describe you. These are confidential documents which contain other inmates' names, CDC numbers, and gang association information. Disclosure of these documents would create a hazard to the safety and security of the institution. Therefore, in the interest of ensuring institutional safety and security, Defendants will not produce any responsive documents.
Defendants also informed plaintiff that they had provided all documents responsive to plaintiff's Request Nos. 2-8, and 10-14, that they had no documents responsive to plaintiff's Request No. 15, and that they were unable to respond to plaintiff's ...