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 in which plaintiff challenges prison regulations that allegedly ban possession of material depicting non-obscene female nudity. This action proceeds on plaintiff's Second Amended Complaint. Discovery closed on January 31, 2010 (Dkt. No. 75.); the deadline for filing dispositive motions is March 31, 2001 (Dkt. No. 50). Presently pending before the court are several motions filed by plaintiff.
Plaintiff moves, pursuant to 28 U.S.C. § 455(a) and (b), for an order disqualifying the undersigned magistrate judge from further presiding in this action. Section 455(a) provides that "[a]ny justice, judge, or magistrate judge . . . shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Section 455(b) provides that a judge "shall also disqualify himself " under enumerated circumstances, including "[w]here he has a personal bias or prejudice concerning a party. . . ." 28 U.S.C. § 455(b)(1). A motion pursuant to Section 455 is addressed to the judge whose recusal is sought, who must decide the matter himself. In re Bernard, 31 F.3d 842, 843 (9th Cir. 1994). A judge must disqualify himself if he is biased or prejudiced for or against a party. Hasbrouck v. Texaco, Inc., 830 F.2d 1513, 1523-24 (9th Cir. 1987). However, the bias must arise from an extra-judicial source and cannot be premised only on a judge's rulings while presiding over a case. Id. at 1524; In re Corey, 892 F.2d 829, 839 (9th Cir. 1989); Nilsson, et al., v. Louisiana Hydrolectric, 854 F.2d 1538, 1548 (9th Cir. 1988).
Plaintiff contends that each of the undersigned's rulings in this case demonstrate a bias in favor of defendants, by allegedly exhibiting partiality towards homosexuality while, paradoxically, promoting conservative religious views, and allegedly demonstrating "a deep-seated animosity against incarcerated litigants and . . . a blinding affinity for law enforcement officials." (Dkt. No. 77 at 1.) Plaintiff particularly contests the undersigned's discovery order filed December 8, 2010, which plaintiff contends was "dispositive" and hence outside the jurisdiction of a magistrate judge, citing Section 636(b), Title 28, United States Code, and Federal Rule of Civil Procedure 73(a).
Plaintiff made a similar motion against the prior magistrate judge assigned to this case (Dkt. No. 24), which was denied on the following grounds (Dkt. No. 28 at 2):
Plaintiff indicates in his motion that he disagrees with the court's rulings in his case. This is not sufficient to support a motion to disqualify. Plaintiff's interpretation of the law may not harmonize with the court's. However, displeasure at the rulings obtained in an action is not adequate grounds to support disqualification of a judge. Thus, plaintiff's request will be denied.
The same reasoning supports denial of the instant motion. Plaintiff challenges only the content of the undersigned's rulings, without any reasonable averment concerning the undersigned's personal beliefs, biases or prejudice. Accordingly, plaintiff's motion for recusal (Dkt. No. 77) is denied. Plaintiff's specific challenges to the court's December 8, 2010 discovery order are addressed separately below.
A. Motion to Modify or Vacate Protective Order issued December 9, 2010 Plaintiff moves to modify or vacate the portion of this court's order filed December 9, 2010, that granted defendants' motion for protective order, thus relieving all defendants from responding to plaintiff's First Set of Interrogatories, and relieving defendants Dovey and Woodford from responding to Request Nos. 4 and 6 of plaintiff's First Set of Requests for Admission. The court also ordered that defendants need not respond to any other discovery request propounded by plaintiff that seeks information about any defendant's personal conduct or opinions. (Dkt. No. 72 at 2-3, 7.) The subject discovery sought defendants' personal opinions and activities regarding nudity and sexuality. (Id., see fns.)
Plaintiff now contends that defendants failed to make a "particularized showing" demonstrating the necessity of the court's "blanket protective order," citing Federal Rule of Civil Procedure 26, and the Federal Rules of Evidence, and that such "blanket protective order" constituted a "dispositive" ruling outside the limited jurisdiction of a magistrate judge. "Blanket protective orders" are disfavored because they are overinclusive. See e.g. Beckman Industries, Inc. v. International Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992). Plaintiff contends that the challenged order precluded discovery of information that is relevant to his claims and the issues presented in this case.
Review of the operative Second Amended Complaint demonstrates that plaintiff challenges departmental policy, premised on challenged regulations,*fn1 that allegedly prohibit prisoner access to materials depicting female nudity. Plaintiff alleges that this policy violates his rights under: (1) the Eighth Amendment because it constitutes an atypical and significant hardship on heterosexual prisoners (Claim 15); (2) the Equal Protection Clause of the Fourteenth Amendment because (a) prisoners in other states are allowed to possess such materials (Claim 16), and (b) it is a form of gender discrimination against heterosexuals (Claim 17); (3) the Establishment Clause of the First Amendment because it improperly promotes religious morals (Claim 18); and (4) the Fourth Amendment right to engage privately in heterosexual conduct and to be free from unreasonable seizures of the contested material (Claims 19 and 20). (Dkt. No. 13 at 7-8.)
Resolution of these claims does not require information about defendants' personal views or sexual orientation. Plaintiff is challenging the constitutionality of an institutional policy, as reflected in written regulations. The private opinions and conduct of defendant staff and administrators are irrelevant; only defendants' conduct during the course of their employment is relevant to this action. The challenged order preventing discovery of defendants' personal views is not overinclusive, will not impede resolution of this action, and is not outside the jurisdiction of a magistrate judge acting pursuant to Local Rule 302(c), Local General Order No. 262, and Section 636(b)(1)(B), Title 28, United States Code.
Plaintiff's motion to modify or vacate a portion of this court's order filed December 9, 2010, is therefore denied.
B. Motion to Compel Discovery from Defendants
Plaintiff moves, pursuant to Federal Rule of Civil Procedure 37(a), for an order compelling defendants to produce further documents responsive to plaintiff's discovery requests served in August 2010, and to provide initial responses to plaintiff's discovery requests served in December 2010. Defendants timely filed an opposition to this motion; plaintiff did not file a reply.
The court first addresses plaintiff's December 2010 discovery requests (consisting of second sets of interrogatories and requests for admission). Defendants' counsel states that, after plaintiff filed this motion, defendants served, without objections, responses to all of plaintiff's December 2010 discovery requests. Counsel explains that the delay was caused by improper calendaring of the court's shortened deadline of January 21, 2011 (Dkt. No. 75 at 2), rather than the standard 45-day deadline previously ordered in this case (Dkt. No. 50 at 5). Counsel states that she discovered the error upon receiving defendants' motion to compel and, thus served, on February 18, 2011, defendants' responses without objections, as required by the Federal Rules of Civil Procedure. See e.g. Fed. R. Civ. P. 33(b)(4) (failure to timely object to an interrogatory waives the objection). In light of defendants' responses and plaintiff's failure to further challenge this matter, plaintiff's motion to compel defendants' responses to his December 2010 discovery requests is denied.
The court next addresses plaintiff's several challenges to defendants' responses to plaintiff's August 2010 production requests. The court initially notes that it previously found, in October 2010, in the context of plaintiff's subpoena duces tecum served on the Attorney General, that statistical information compiled by the California Department of Corrections and Rehabilitation ("CDCR") may be relevant to this action. The court made the following order (Dkt. No. 56 at 6 (fn. omitted)):
The Attorney General shall generally construe plaintiff's subpoena as requesting any data, numbers or statistics, set forth in final report-form, and any other final report, or written policies or practices, that address the sexuality of California prisoners within the last twenty years. In the present context, "sexuality" shall refer to any heterosexual, homosexual, or transgender activities, as ...