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Levon D. Graham v. D.L. Runnels

January 24, 2011

LEVON D. GRAHAM, PLAINTIFF,
v.
D.L. RUNNELS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows U.S. Magistrate Judge

ORDER

Introduction & Motion for Clarification/Reconsideration

On September 30, 2010, this court filed an order granting in part and denying in part plaintiff's first motion to compel further discovery, while striking the second motion as duplicative. As to those requests for production to which the court ordered defendants to provide further responses/production, the undersigned narrowed/modified the requests. Nevertheless, defendants have filed a motion for clarification, reconsideration and relief from that order, arguing that the ruling was made without their having been afforded the opportunity to set forth fully their opposition because of the deficiencies of plaintiff's motion in failing to identify properly the requests at issue. Motion, pp. 1, 3-4. Defendants also protest that they do not have control of the documents at issue, that the documents to be produced are voluminous and unlikely to lead to the discovery of admissible evidence, that the production ordered places an undue burden on the non-party California Department of Corrections and Rehabilitation (CDCR). Id. at 2, 4-5. Defendants argue that the court has improperly shifted the burden of showing they have control of the documents at issue. Id. at 5, citing U.S. v. International Union of Petroleum and Indus. Workers, AFL-CIO, 870 F.2d 1450, 1452 (9th Cir. 1989), in turn citing Norman v. Young, 422 F.2d 470, 472-73 (10th Cir.1970) ("The party seeking production of the documents ...bears the burden of proving that the opposing party has such control").

Defendants also protest that former state employees do not have the legal right to demand documents from non-party CDCR or High Desert State Prison; nor, they assert, does the Attorney General's Office have a legal right to demand CDCR documents -- they can only ask for them. Motion, p. 5 & n. 1. Plaintiff, on the other hand, makes the point that under CAL. CODE REGS. tit.xv, § 3370,*fn1 it appears that the Office of the Attorney General is among those that do have at least fairly ready access to, inter alia, case records file. Opposition (Opp., p. 2). In an effort to repudiate plaintiff on this point, however, defendants contend that § 3370 is a permissive regulation allowing release of records to the Attorney General's office but not addressing policy documents or requiring that all records requested be provided on demand. Reply, p. 4.*fn2

Defendants note that when partially granting the motion, the undersigned modified and narrowed the requests; defendants contend that due to the modifications they believe no further production should be required. Id. at 6. Defendants argue that if they are still to be required to make further production, the court should first conduct an in camera review of all documents the CDCR considers to be confidential and that the production should be permitted only subject to a protective order solely for plaintiff's inspection with all personal information redacted to minimize any safety/security risk. Id. at 6. The court notes that in its order defendants were permitted time to fashion just such a proposed protective order (and have not yet done so). Although defendants concede that the official information privilege is not generally raised on a motion for reconsideration, they claim that it was only the court's order that made it clear to them that privileged policies were at issue. This appears to be an unreasonable argument in light of the fact that defendants had at least two prior and ample opportunities to attempt to rely on the privilege, both within objections to plaintiff's requests and in opposition to his motion to compel.

Standards For Motions To Reconsider

Although motions to reconsider are directed to the sound discretion of the court, Frito-Lay of Puerto Rico, Inc. v. Canas, 92 F.R.D. 384, 390 (D.C. Puerto Rico 1981), considerations of judicial economy weigh heavily in the process. Thus, Local Rule 230(j) requires that a party seeking reconsideration of a district court's order must brief the "new or different facts or circumstances ...claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion...and [] why the facts or circumstances were not shown at the time of the prior motion" (or, in this case, in response to the motion). The rule derives from the "law of the case" doctrine which provides that the decisions on legal issues made in a case "should be followed unless there is substantially different evidence Nevertheless, given the discussion in the text, and further responses contained therein, no such evidentiary hearing need be held in this case.

. . . new controlling authority, or the prior decision was clearly erroneous and would result in injustice." Handi Investment Co. v. Mobil Oil Corp., 653 F.2d 391, 392 (9th Cir. 1981); see also Waggoner v. Dallaire, 767 F.2d 589, 593 (9th Cir. 1985), cert. denied, 475 U.S. 1064 (1986).

Courts construing Federal Rule of Civil Procedure 59(e), providing for the alteration or amendment of a judgment, have noted that a motion to reconsider is not a vehicle permitting the unsuccessful party to "rehash" arguments previously presented, or to present "contentions which might have been raised prior to the challenged judgment." Costello v. United States, 765 F.Supp. 1003, 1009 (C.D.Cal. 1991); see also F.D.I.C. v. Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986); Keyes v. National R.R. Passenger Corp., 766 F. Supp. 277, 280 (E.D. Pa. 1991). These holdings "reflect[] district courts' concerns for preserving dwindling resources and promoting judicial efficiency." Costello, 765 F.Supp. at 1009.

In the instant action, the court, although noting that plaintiff was burdening the court by failing to specifically identify each request he wished to place at issue, found that (although some production had been made) essentially the pro se plaintiff was contending that each response was deficient based on the objections raised to virtually every response, which plaintiff confirms in his opposition to the reconsideration motion. Opposition (Opp.), p. 2. Essentially, the production that was required with respect to any sustained allegations of excessive force as to either or both defendants should be located within the personnel files of each defendant, notwithstanding that a number of years have passed or that each is retired. The same applies to inmate grievances of excessive force with respect to each defendant. Even after the passage of more than five years, any inmate grievances of excessive force that were sustained or found to have substance should be retained in the defendants' files. The court finds it virtually inconceivable that a correctional officer's personnel file should not contain a record, at the very least, of sustained findings based on allegations of misconduct, including, of course, those related to the excessive use of force. It even strains credulity that serious allegations of such misconduct, whether ultimately sustained or not, would not be contained therein.

Defendants maintain that as to request nos. 1-11, wherein defendants were required to produce records of any other civil rights action filed against either or both in any court, alleging excessive or unreasonable force, that they have with this motion produced the only such action of which they are aware: McNeal v. Fleming, CIV-S-02-2524 MCE JFM P, accusing, inter alia, defendant Martin of the use of excessive force. Motion, p. 6 & Exhibit (Ex.)

A. Defendants go on to assert that no responsive documents exist to the court's order to produce records of any sustained allegations of excessive force against either or both defendants from December 20, 1996 through December 20, 2002.*fn3 Therefore, the court finds that it can require no more and defendants have discharged the order at issue as to plaintiff's RFP nos. 1through 11.

As to RFP no. 24, defendants seek clarification of the court's order that defendants produce any documentation wherein defendants are alleged to have done nothing while excessive force was used in their presence in any other incident for the period from December 20, 1996 through December 20, 2002. Motion, pp. 6-8. Defendants' declarant R. Dreith, HDSP Litigation Coordinator, states, inter alia, that the computer system tracking inmate grievances was not operational until 2004; thus, to locate any documentation wherein either defendant was alleged to have done nothing while excessive force was used in their presence would have to be done by manual retrieval and review. Motion, Declaration of R. Dreith (docket # 54-7) ¶¶ 1, 5-6. In contrast, plaintiff contends that declarations produced by defendants to support their claims regarding the onerousness of attempting to produce responsive documents appear to contradict the portions of the DOM that suggest more organized record-keeping. Opp., p. 4 & Exs. 2 & 3. However, in reply, defendants note that it was a non-party HDSP official that described the procedures and assert that logs and records maintained at HDSP contain staff names only if a staffmember is the victim, which records are maintained for a maximum of seven years. Reply, p. 6, Supplemental Dreith Dec. (docket # 61-2), ¶¶ 1-17. Dreith declares that the DOM provision to which plaintiff referred does not apply in the context of the time period at issue. Supp. Dreith Dec. (docket # 61-2), ¶¶ 19-20. Notwithstanding, declarant Dreith avows that he made a diligent search of logs and records that have been maintained and has confirmed that there are no responsive records that exist for the period from December 20, 1996, until December 20, 2002, that involve allegations that defendants Martin and Kopec did nothing while excessive force was used in their presence. Id. at ¶ 21. In addition, declarant John Day, employed by CDCR as a Chief of Headquarters Operations at the Office of Internal Affairs (OIA), states under oath that he has conducted a diligent search for any such allegations among the OIA's logs and records against the defendants for the time period at issue and similarly has found that no responsive documents exist. Reply, Declaration of J. Day (docket # 1-2).

The court clearly intended that any such records to be produced were to be sustained and not unsubstantiated complaints or insubstantial grievances. Defendants have provided evidence that no records of any such sustained allegations exist. Although this appears to reflect a defective CDCR records retention policy, i.e., one where it is not routine to retain within individual personnel files records of any significant misconduct or allegations of such, based on the declarations produced, the department will not be burdened with reviewing the individual inmate files wherein any such grievances might be maintained. Therefore, the court finds as to this request that defendants in supplementing their responses with further declarations have discharged the order as to RFP ...


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