IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
May 17, 2011
JON CHRIST, PLAINTIFF,
R. BLACKWELL, ET AL., DEFENDANTS.
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983.*fn1 He has filed several motions which include: (1) a motion for an order allowing plaintiff to contact incarcerated witnesses (Docket No. 24); (2) a motion to compel discovery (Docket No. 27); and (3) a motion to file documentary evidence (Docket No. 29). The court will address each in turn.
I. Motion for Order Allowing Plaintiff to Contact Incarcerated Witnesses
Plaintiff seeks an order from this court that would allow him to contact five inmates incarcerated at California State Prison -- Solano and another inmate incarcerated in an unknown institution. Dckt. Nos. 24, 36, 37*fn2 , 38. Defendants oppose plaintiff's motions, arguing that plaintiff should not be allowed to circumvent the reasonable restrictions on inmate-to-inmate communications imposed by the California Department of Corrections and that plaintiff can avail himself of Federal Rule of Civil Procedure 31 (deposition upon written questions) to obtain necessary information from his incarcerated witnesses. Dckt. No. 26.
Under Rule 31, a party may depose any person by written questions. However, where the deponent is incarcerated, the party must obtain the court's permission to conduct the deposition. Fed. R. Civ. P. 31(a)(2)(B). Further, unless the parties stipulate otherwise, the party noticing the deposition is required to provide the questions to an "officer", as that term is defined in Rule 28(a), who will take the deponent's responses to the questions, certify them, and send them to the noticing party.*fn3 Id. Rules 31(b), 30(b)(5). Defendants have not stated that they are unopposed to the court granting plaintiff leave to depose the listed individuals under Rule 31(a)(2)(B) nor indicated a willingness to stipulate that plaintiff may depose the individuals by written questions in some manner not requiring the participation of a deposition officer. Thus, proceeding under Rule 31 may not provide a viable alternative to direct communication, due to plaintiff's incarceration and the incarceration of his witnesses.
However, plaintiff may avail himself of the process provided for in California Code of Regulations, title 15, § 3139.*fn4 While plaintiff has indicated that communications from two of his four pages shall be forwarded, intact, to the institution/parole office/probation office/other county, state or federal facility where the other requested correspondent is housed. Neither a photocopy of the CDC Form 1074, nor the fifth page, shall be forwarded to the C-File or mailroom while the correspondence approval is pending.witnesses have been confiscated under § 3139(I) as unapproved, he has not indicated that he has gone through the process outlined in § 3139(a)-(c) to obtain approval to correspond with those inmates. Accordingly, the court will deny plaintiff's motions for an order allowing him to contact incarcerated witnesses without prejudice. If plaintiff attempts to engage in communications with his witnesses by following the proper procedures under § 3139(a)-(c) and is denied access or is otherwise unable to effectively communicate with his witnesses, and those communications are necessary to the litigation of this action, plaintiff may file another motion describing his attempts to engage in the process provided by § 3139(a)-(c), why that process failed him, and why the evidence from the witness is relevant and seeking appropriate relief.
II. Motion to Compel
Plaintiff seeks an order compelling defendants to respond to his requests for production of documents (hereinafter "RFPs"). Dckt. No. 27. Defendants originally responded to plaintiff's RFPs by objecting that plaintiff had not identified the specific defendant subject to each request. Plaintiff then served amended RFPs on December 21, 2010, specifying which defendant each request was directed to. Plaintiff filed the motion to compel responses to the RFPs on January 10, 2011.
Under Federal Rule of Civil Procedure 34(b)(2)(A), defendants had 30 days from service of the amended RFPs to respond; that is, until January 20, 2011. Thus, the January 10 motion was premature. However, the date on which the responses were due is apparently in dispute. In their January 24, 2011 opposition to the motion to compel, defendants assert, without citation, that their responses were not due until February 7, 2011. The assertion is unexplained and the court does not know how defendants arrived at that date. Dckt. No. 30 at 1-2. Nonetheless, defendants state that they are responding to plaintiff's RFPs. Id. However, plaintiff filed reply briefs on February 7, 2011 and February 18, 2011 implying that he has not received any RFP responses.
On the information before the court, it appears that defendants have either wholly failed to substantively respond to plaintiff's RFPs or have failed to respond in the time required. Because defendants have represented to the court that they are responding to the requests, the court will defer ruling on plaintiff's motion to compel at this time and instead order defendants to show cause within 14 days of the date of this order why they should not be compelled to respond to the RFPs and why sanctions and/or an award of expenses should not issue under Federal Rule of Civil Procedure 37.
III. Motion to File Documentary Evidence
Plaintiff has filed a "motion to file documentary evidence," appending 106 pages of documents, denoted Exhibits A-Z. Dckt. No. 29. It is unclear what this evidence is filed in support of, although plaintiff indicates that the documents show that he exhausted his administrative remedies. Id. at 1. Currently, no dispositive motion is pending to which the attached documents might be relevant. The court will accept the documents for filing, but informs plaintiff that, should he rely on the evidence in future briefs, he must cite specifically to the exhibit and page number; the court will not dig through the exhibits to find evidence supporting plaintiff's arguments. If plaintiff wishes the exhibits to be a part of his complaint, plaintiff must seek leave to file an amended complaint that includes the exhibits. L.R. 220 (all pleadings must be complete within themselves and contain all exhibits or attachments referred to within the pleading).
Accordingly, it is hereby ordered that:
1. Plaintiff's November 3, 2010, April 11, 2011, and April 20, 2011 motions for an order allowing plaintiff to contact witnesses (Docket No. 24, 37, 38) are denied without prejudice;
2. Plaintiff's April 8, 2011 motion for an extension of time (Docket No. 36) is denied;
3. Defendants shall show cause within 14 days of the date of this order why the court should not issue an order compelling their responses to plaintiff's requests for production of documents and why sanctions and/or an award of expenses should not issue under Federal Rule of Civil Procedure 37 for their failure to respond or failure to timely respond to those discovery requests;
4. Plaintiff's January 18, 2011 motion to file documentary evidence (Docket No. 29) is granted.