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Joseph R. Pulliam v. M. Lozano

January 31, 2011

JOSEPH R. PULLIAM,
PLAINTIFF,
v.
M. LOZANO, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER GRANTING PLAINTIFF'S MOTION TO COMPEL (ECF No. 40); DENYING PLAINTIFF'S MOTION TO POSTPONE (ECF No. 42); AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO COMPEL AND REQUEST FOR EXTENSION OF DISCOVERY DEADLINES (ECF No. 41) DISCOVERY DEADLINE RESET TO MARCH 31, 2011 PRE-TRIAL MOTION DEADLINE RESET TO JUNE 30, 2011

Plaintiff Joseph A. Pulliam ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Before the Court are: (1) Plaintiff's Motion to Compel (ECF No. 40); (2) Plaintiff's Motion to Postpone (ECF No. 44); (3) Defendants' Motion to Compel and for Sanctions (ECF No. 41); and (4) Defendants' Request for Extension of Discovery Deadline (ECF No. 41). Each of these motions will be addressed in turn below.

I. PLAINTIFF'S MOTION TO COMPEL

Plaintiff moves to compel Defendants to provide additional responses to his initial request for production, specifically various CDCR reports, decisions on inmate appeals, and disciplinary records. (ECF No. 40.) Defendants contend that they have produced all documents within their custody, control or possession and have thereby satisfied their obligation under the discovery rules. (ECF No. 43.)

If Defendants seek to avoid production by contending that they are not in possession, custody or control of the requested documents, their objection is denied. The specific facts of this action render such an objection unfounded. By virtue of their employment with non-party CDCR, individual defendants are represented by the Attorney General's Office. It is this Court's experience that either individual defendants who are employed by CDCR and/or the Attorney General can generally obtain documents, such as the ones at issue here, from CDCR by requesting them. They have constructive control over the requested documents, and the documents must be produced. See, e.g., Mitchell v. Adams, 2009 U.S. Dist. LEXIS 24289, *24-25, 2009 WL 674348, *9 (E.D. Cal. Mar. 6, 2009) (even though defendant warden was sued in his individual capacity, he had constructive control over requested documents because he had authority to obtain the requested documents from third party CDCR); see also Gray v. Faulkner, 148 F.R.D. 220, 223-24 (N.D. Ind. 1992) (requiring certification that responding parties "have conducted a search for the information reasonably available to them through their agents, attorneys, or others subject to their control and have determined that the information requested either does not exist or that it has been produced.").

If Defendants choose to stand on this objection, they must provide factual support for their assertion that, in spite of their relationship with CDCR, they do not have possession, custody or control of the requested documents. (Defendants should also be mindful of the fact that maintenance of such an objection may preclude them from using the requested documents, or any documents of this kind, as evidence in support of summary judgment, in opposition to any of Plaintiff's positions, and in any way during trial.

See Fed. R. Civ. P. 37(c)(1). Should Defendants stand on this objection and subsequently seek to use the requested documents or like documents, they must-at minimum-supplement their responses and explain the method by which they obtained the documents. Id. They will also be required to demonstrate that the prior objection was in good faith given that they now have and seek to use the requested documents. Fed. R. Civ. P. 26(e)(1).

Accordingly, Plaintiff's Motion to Compel further response to his request for production of documents is granted. Defendants are to provide further response within thirty days from the date of service of this order.

II. PLAINTIFF'S MOTION TO POSTPONE

Defendants noticed Plaintiff's deposition for December 20, 2010. Both parties appeared on that date, along with a court reporter, but Plaintiff refused to answer any questions about the case. Plaintiff's refusal was based on the fact that he claimed to have filed a motion for the appointment of counsel and would not be deposed until such motion was resolved by the Court.

It appears Plaintiff may have been referring to the "Motion to Postpone" that he signed on December 6, 2010; it was not received and processed by the Court until December 27, 2010. (ECF No. 42.) In his Motion, Plaintiff acknowledges that Defendants noticed his deposition for December 20, 2010 and asks the Court to "postpone" the taking of his deposition. Plaintiff states that he intends to ask the Court to reconsider its denial of his motion for the appointment of counsel. (Id.) Plaintiff has yet to file such a motion.

Because the Court did not receive Plaintiff's Motion to Postpone until after December 20, 2010, the Motion is moot. Additionally, had Plaintiff sought reconsideration of his motion to appoint counsel, it would have been denied. Plaintiff has not shown that his case meets the "exceptional circumstances" standard. See Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997). Thus far, Plaintiff has represented himself diligently and ably; the Court has no doubt that such performance will continue.

For the reasons stated above, Plaintiff's Motion to Postpone ...


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