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James Alexander v. California Department of Corrections

December 8, 2010


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Plaintiff is a state prisoner proceeding without counsel in this civil rights action filed pursuant to 42 U.S.C. § 1983. Currently pending before the court are the following matters:

(1) Defendants' motion for protective order (Dkt. No. 57); (2) Plaintiff's "renewed" motion for the issuance and service of two subpoena duces tecum (Dkt. No. 64); and (3) Plaintiff's motion to compel discovery (Dkt. No. 69). For the following reasons, the court grants defendants' motion and denies plaintiff's motions; however, the court authorizes the issuance of the requested subpoenas duces tecum for service by plaintiff rather than by the United States Marshal.


This case proceeds on Claims 15 through 20 of plaintiff's Second Amended Complaint ("SAC" or "complaint") filed February 12, 2009 (Dkt. No. 13), as construed by this court by order filed October 14, 2009 (Dkt. No. 16). Plaintiff contends that employees of the California Department of Corrections and Rehabilitation ("CDCR"), in violation of the First Amendment, improperly denied plaintiff access to non-obscene materials depicting female nudity while he was incarcerated at High Desert State Prison ("HDSP"). This action proceeds against four defendants: CDCR administrators Dovey and Woodford, and HDSP correctional officers Wedemeyer and Barron. Defendants answered the complaint on May 3, 2010. (Dkt. No. 41.) On July 13, 2010, this court issued a discovery and initial scheduling order, setting a discovery deadline of December 31, 2010. (Dkt. No. 50.)

Defendants' Motion for Protective Order/Plaintiff's Motion to Compel All defendants move for a protective order relieving them of the obligation to respond to plaintiff's First Set of Interrogatories, and defendants Dovey and Woodford also seek to be relieved of their obligation to respond to plaintiff's First Set of Requests for Admissions. (Dkt. No. 57.) Plaintiff has not filed an opposition to the motion, but has filed a motion to compel discovery which addresses the same matters. (Dkt. No. 69.) The court construes plaintiff's motion, in part, as an opposition to defendants' motion.

Rule 26(c)(1), Federal Rules of Civil Procedure, provides that "[a] party or any person from whom discovery is sought may move for a protective order in the court where the action is pending," and "[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. . . ."

Defendants assert that plaintiff's interrogatories inappropriately seek personal information about each defendants' sexual conduct and opinions. Review of the disputed interrogatories served on each defendant supports this construction.*fn1 Such information is not relevant to the constitutional issue in this case. Defendants' personal conduct and opinions are irrelevant. Plaintiff's interrogatories are, without exception, offensive and potentially embarrassing to defendants. No defendant will be required to answer these interrogatories.

Defendants also challenge plaintiff's requests for admissions served on defendants Dovey and Woodford.*fn2 Request Nos. 4 and 6 to each of these defendants are inappropriate and offensive.*fn3 Neither defendant will be required to answer these requests.

The only remaining matter, plaintiff's motion to compel the production of documents, does not appear to be at issue based on defendants' requests for extensions of time to complete production. (See Dkt. Nos. 58, 68 (orders granting extensions of time for defendants to produce responsive documents).) Therefore, this portion of plaintiff's motion will be denied without prejudice as moot.

Plaintiff's Renewed Motion for Issuance of Subpoenas Duces Tecum

Plaintiff has filed a "Renewed Motion," again seeking an order of this court authorizing the issuance and service of subpoenas duces tecum on non-parties Dr. Terry Kupers and the Kinsey Institute. (Dkt. No. 64; see also Dkt. Nos. 53, 56 .) By order filed October 18, 2010, this court granted in part plaintiff's prior motion for issuance and service of three subpoenas duces tecum, granting a portion of plaintiff's motion as to the California Attorney General, but denying plaintiff's motion as to Dr. Kupers, a California psychiatrist, and the Kinsey Institute, located in Bloomington, Indiana.

Responding to several of the factors previously considered by the court, plaintiff now contends that the material he seeks from each non-party is relevant to this action because it "will help substantiate plaintiff's claims" by "illustrat[ing] the adverse [e]ffects of sexual repression/ suppression," and assist plaintiff in the identification of experts who may testify in plaintiff's favor. (Dkt. No. 64, at 4-5.) Plaintiff asserts that his indigence and incarceration, as well as the failure of either non-party to respond to plaintiff's informal requests for information, accord him no alternative to a subpoena duces tecum.

Plaintiff seeks from each non-party the identical information he sought in his prior motion. (Cf. Dkt. No. 64, at 15-19, with Dkt. No. 53, at 18-19, 21-23.) As earlier summarized by the court (Dkt. ...

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