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Arthur Carr v. H. Her

March 18, 2011

ARTHUR CARR, PLAINTIFF,
v.
H. HER, ET AL.,
DEFENDANTS.



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

ORDER AND REVISED SCHEDULING ORDER

Plaintiff is a state prisoner proceeding without counsel. Four motions are now submitted for decision. The court will address them seriatim.

I. December 13, 2010 Motion to Compel Discovery

On December 13, 2010, plaintiff filed a motion to compel further responses to plaintiff's supplemental request for production of documents/interrogatories and request for admissions. On December 29, 2010, defendants filed an opposition. On February 25, 2011, plaintiff filed a reply.

A. Requests for Admissions (Defendant Her)

Supplemental Request for Admission No. 1: Admit that you submitted Defendant's Supplemental response to Plaintiff's Request for Production of Documents Pursuant to the Court's Ruling on Plaintiff's Motion to Compel on July 16, 2010.

Defendant's Response: Defendant objects to this Request for Admission as it is irrelevant and not likely to lead to the discovery of evidence which is admissible in Court. The document speaks for itself and therefore, this request is deemed harassing in nature. Without waiving and subject to these objections, the Defendant Her responds as follows: Admit.

(Dkt. No. 87 at 2.)*fn1

Supplemental Request for Admission No. 3: Admit you are the "writer" of the Rules Violation Report -- Part C, dated 3-18-08. Defendant's Response: Defendant objects to this Request for Admission in that it is vague, ambiguous, and overly broad. It is possible that more than one Rules Violation Report was authored by more than one Correctional Officer. Without waiving and subject to this objection, Defendant Her responds as follows: Admit, I authored a Rules Violation Report Part -- C dated 3/18/08. (Dkt. No. 87 at 3.)

Defendant Her's objections are sustained. The first document speaks for itself, and the request was not proper. In any event, defendant Her admitted submitting the response (Request No. 1), and authoring a Rules Violation Report Part -- C dated 3/18/08 (Request No. 3). Nothing more was required.*fn2 In plaintiff's reply, plaintiff states he propounded these requests to ascertain defendant Her's credibility and for impeachment purposes. Plaintiff is advised that his opportunity to challenge defendant Her's credibility is at trial, during cross-examination. Plaintiff's motion to compel further responses to Supplemental Requests for Admission No. 1 and 3 is denied.

Supplemental Request for Admission No. 5: Admit you changed the statement at paragraph 4 when you testified in the case People of the State of California v. Jerry Sprague, case number FCR256080, Solano County Superior court, Fairfield, California. Defendant's Response: Defendant objects to this request on the grounds that it is vague, ambiguous, and overbroad, and is therefore deemed harassing and argumentative in nature. The word "changed" can have different meanings and it has not been defined by Plaintiff. Without waiving and subject to these objections, Defendant Her responds as follows: Denied, the substantive statements were not different.

(Dkt. No. 87 at 3.)

In plaintiff's reply, he claims his supplemental discovery requests "involved questions specifically related to Defendant Her's 'Supplemental Responses,' . . . and his 'statements' made while testifying" (dkt. no. 91 at 3) in FCR256080. Plaintiff claims "he meant paragraph '4' through paragraph '9' of page 51 of the trial transcript from FCR256080, which plaintiff appended to the motion to compel (dkt. no. 83 at 24). Plaintiff argues he made a typographical error that could have been resolved through a proper meet and confer.*fn3 (Dkt. No. 91 at 3.)

However, defendant Her's objections to this request are well-taken. By this court's July 9, 2010 order, plaintiff was reminded that "discovery requests must be specific and identify what information plaintiff is seeking." (Dkt. No. 57 at 2.) Request No. 5 is not clear without the amplification provided in plaintiff's motion to compel. (Dkt. No. 83 at 5.) The request, as written, does not identify what plaintiff is asking defendant Her to compare, nor which statement plaintiff claims defendant Her changed. Plaintiff's motion to compel further response to request No. 5 is denied. If plaintiff believes defendant Her changed a statement in a material way, plaintiff may address this issue on cross-examination. Similarly, if plaintiff has evidence that demonstrates a witness has provided a prior inconsistent statement, he may attempt to use that evidence during cross-examination to impeach the witness.

Request for Admission No. 6: Admit that you falsified the Rules Violation Report identified in paragraph 3.

Defendant's Response: Defendant objects to this interrogatory in that it is argumentative. Defendant further objects to this interrogatory in that it is vague and ambiguous. Without waiving said objections, Defendant Her responds: Denied. (Dkt. No. 87 at 4.)

This request is argumentative. Plaintiff's motion to compel further response to request No. 6 is denied.

Accordingly, plaintiff's motion to compel further responses to Requests for Admissions directed to defendant Her is denied.

B. Requests for Production (Defendant Her)

Plaintiff objects that defendants did not correctly set forth the language contained in Nos. 1 & 2. Accordingly, the court recites the requests as set forth by plaintiff. Plaintiff did not provide the separate responses of defendant Her, so the response is taken from defendants' opposition.

Request for Production No. 1: A copy of inmate on inmate violence complaint, grievance, criticism, censure, reprimand/ rebuke directed toward you, prior to the incident giving rise to this proceeding.

Request for Production No. 2: A copy of inmate on inmate violence complaint, grievance, criticism, censure, reprimand/ rebuke directed toward you, subsequent to the incident giving rise to this proceeding. (Dkt. No. 91 at 4.)

Defendant's Response to Nos. 1 & 2: Defendant objects to this Request for Production of Documents on the ground that it seeks information that is irrelevant and beyond the scope of discovery because it is not likely to lead to discovery of admissible evidence. Defendant further objects to this Request on the ground that it is vague and ambiguous, and cannot be understood fully, in that it appears to ask for information which may have occurred prior to 3/10/08, but also incorporates this incident. Without waiving and subject to these objections, defendant Her responds as follows: Plaintiff has been provided with any and all documents to date, responsive to this request, in the custody, possession, or control of this Defendant. (Dkt. No. 87 at 5.)

It appears the "incident giving rise to this proceeding" occurred on or about March 10, 2008. Accordingly, Request Nos. 1 & 2, as written, are overbroad. Plaintiff seeks documents "prior to" and "subsequent to" March 10, 2008. This could include documents from the date defendant Her began employment with the California Department of Corrections and Rehabilitation ("CDCR"), as well as three years after the incident. In addition, it is unlikely that documents filed after the incident would bear relevance to plaintiff's failure to protect or Eighth Amendment claims.

However, plaintiff is entitled to "obtain discovery regarding any non privileged matter that is relevant to any party's claim or defense." Federal Rule of Civil Procedure 26(b)(1). "Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Federal Rule of Civil Procedure 26(b)(1).

The court finds that the discovery sought by plaintiff, if limited in time, is relevant to his claims. Federal Rule of Evidence 404 normally prohibits a plaintiff from introducing evidence of prior failure to protect incidents or prior incidents of excessive force for the purpose of proving that defendants subsequently failed to protect or used excessive force against a plaintiff. However, the documents requested may be introduced for other purposes, "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Federal Rule of Evidence 404(b). The requested discovery may also lead to the discovery of other admissible evidence. Courts have allowed the discovery of prior complaints if the prior claims are very similar to the new claims. See Cox v. McClellan, 174 F.R.D. 32, 34 (W.D. N.Y. 1997) ("Prior civilian complaints made against the defendants and incidents of excessive force by individual defendants are clearly discoverable"); Renshaw v. Ravert, 82 F.R.D. 361, 363 (E.D. Penn. 1979) (interrogatories related to defendant's involvement in any prior suits or disciplinary proceedings concerning abuse of his lawful authority and the eventual disposition of those proceedings is relevant and may be used for impeachment or cross-examination.)

Here, plaintiff has narrowed his discovery request to "inmate on inmate violence." Because some of the documents sought may not include allegations that defendants failed to protect the inmate and/or violated the Eighth Amendment, defendants need only provide those documents responsive to request no. 1 that are limited to "inmate on inmate violence" where the injured inmate alleged defendant failed to protect the inmate or used excessive force in violation of the Eighth Amendment. Defendant Her shall review responsive documents for the two years prior to March 10, 2008. Thus, plaintiff's motion to compel further responses to request No. 1 is partially granted.*fn4

Request for Production No. 3: A copy of letter of instruction on any inmate on inmate violence grievance directed toward you, pursuant to the DOM §§ 33030.8; 33030.8.1.4.

Defendant's Response: Defendant objects to this Request for Production of Documents on the ground that it seeks information that is irrelevant and beyond the scope of discovery because it is not likely to lead to discovery of admissible evidence. Defendant further objects to this Request on the ground that it is vague and ambiguous, and cannot be understood fully. Without waiving and subject to these objections, defendant Her responds as follows: Plaintiff has been provided with any and all documents to date, responsive to this request, in the custody, possession, or control of this Defendant. (Dkt. No. 87 at 6.)

In their opposition, defendants further argue that the term "Letter of Instruction" is vague and ambiguous and claim they do not know what plaintiff is requesting. However, review of § 33030.8 Causes for Corrective Action, and § 33030.8.1.4 Letters of Instruction of the CDCR Operations Manual ("DOM"), cited by plaintiff in the discovery request, reveals that a Letter of Instruction is a form of corrective action directed to a prison employee that is less punitive than a disciplinary action. Therefore, defendant Her's objection is overruled. Defendant Her's response that he has turned over any and all documents in his custody, possession, or control, does not indicate that he has reviewed his personnel file or other pertinent CDCR records to ensure no Letter of Instruction has been received yet not produced. Moreover, as plaintiff points out, if defendant Her has not received such a Letter of Instruction, defendant Her should simply provide a statement to that effect. Plaintiff's motion to compel further response to Request for Production No. 3 is partially granted. For the two year period prior to March 10, 2008, defendant Her shall review his personnel file or other CDCR records and shall produce any Letter of Instruction that contains allegations that defendant Her used excessive force during inmate on inmate violence, and/or allegations that defendant Her failed to protect an inmate or inmates during inmate on inmate violence.

Request for Production No. 4: A copy of any complaints, grievances, criticism, censure, reprimand/rebuke directed toward you for excessive force against an inmate within 2 years from before the date of the incident to the date of the incident. Defendant's Response: Defendant objects to this Request for Production of Documents on the ground that it seeks information that is irrelevant and beyond the scope of discovery because it is not likely to lead to discovery of admissible evidence. Defendant further objects to this Request on the ground that it is vague and ambiguous, and cannot be understood fully. Without waiving and subject to these objections, defendant Her responds as follows: Plaintiff has been provided with any and all documents to date, responsive to this request, in the custody, possession, or control of this Defendant. (Dkt. No. 87 at 6.)

Plaintiff has limited the request to the two year time frame prior to March 10, 2008. Defendants object that plaintiff's request is unclear whether he seeks complaints from other inmates or from superiors, or both. (Dkt. No. 87 at 7.) However, plaintiff's use of the terms "complaints, grievances, criticism, censure, and reprimand," make clear that plaintiff seeks documents, authored by both other inmates and superiors working at the prison, alleging defendant Her used excessive force. Defendant's relevance objection is overruled. In light of plaintiff's Eighth Amendment allegations, this request is relevant. As noted above, this evidence may be introduced for other purposes, "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Federal Rule of Evidence 404(b). The requested discovery may also lead to the discovery of other admissible evidence. Although defendant claims he has produced documents in his custody, possession, or control, there is no indication that defendant searched appropriate CDCR records for documents responsive to this request. Accordingly, defendant Her shall review documents responsive to this request, prepared by other inmates or superiors, alleging defendant Her used excessive force during inmate on inmate violence, for the two years prior to March 10, 2008.

Request for Production of Documents No. 1: A copy of any and all documents and other tangible things upon which you base your denial of plaintiff's claim.

Defendant's Response: Defendant objects to this Request for Production of Documents on the ground that it seeks information that is irrelevant and beyond the scope of discovery because it is not likely to lead to discovery of admissible evidence. Defendant further objects to this Request on the ground that it is vague and ambiguous and cannot be understood fully. It appears to be a Request asking for all the documents which he has already been provided within his previous requests. It is therefore duplicative and deemed harassing in nature. Without waiving and subject to these objections, defendant Her responses as follows: Plaintiff has been provided with any and all documents to date, responsive to this request, in the custody, possession, or control of this Defendant. (Dkt. No. 87 at 7.)

Defendant Her's objection is sustained. Plaintiff's motion to compel further response to ...


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