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Gerald L. Miller v. Jane Woodford

May 31, 2011

GERALD L. MILLER, PLAINTIFF,
v.
JANE WOODFORD, ET. AL., DEFENDANTS.



ORDER

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. This action proceeds on the third amended complaint, filed March 23, 2009, which the court previously found stated claims against defendants G. Costra, Huckabee, R.V. Cox, L. Dial, James, Segerstrom and Adams. Dckt. No. 86.

Plaintiff has filed two motions to compel discovery, a motion for court intervention in serving three defendants, a request for declaratory relief, and a motion for the court to order a defendant to retain counsel. Dckt. Nos. 140, 152, 143, 149, 144. Defendants have opposed the first motion to compel, the motion for court intervention and the motion to order a defendant to retain counsel. Dckt. Nos. 141, 145, 147.

I. Plaintiff's First Motion to Compel

Plaintiff moves to compel a number of documents that he requested as public records from High Desert State Prison. Dckt. No. 140. He seeks declaratory relief under Cal. Gov't Code § 6258. To paraphrase, plaintiff seeks 1) reports regarding the use of force against him by defendant Costra; 2) memos regarding the use of force generally at HDSP; 3) grievances against Costra for the use of force; 4) policies and procedures regarding the use of force on a prisoner; 5) reports regarding the use of force against plaintiff by defendant Huckabee; 6) grievances against Huckabee; 7) January 2006 policies and standards for the division of correctional healthcare services; 8) grievances against defendant Dial; 9) grievances against defendant Cox; 10) documents created by HDSP staff in response to plaintiff's grievance against defendant Cox; 11) grievances against defendant James; and 12) the video of plaintiff's use of force interview, as well as other documents created by the investigators. Id. at 4-8. (These descriptions of the records plaintiff seeks are not meant to supercede the actual wording of plaintiff's requests.) Plaintiff asks that defendants' personal information pertaining to, for example, medical records and life insurance policies, be redacted. Id.

Defendants oppose plaintiff's motion to compel. Defendants' one-page opposition argues that plaintiff is seeking public records from CDCR, and because CDCR is not a party to the lawsuit, the court lacks jurisdiction to grant plaintiff's motion. Dckt. No. 141. Defendants argue that plaintiff may file a separate action in California superior court to obtain the records that he seeks. Id. Defendants do not assert that the documents sought are not in their custody or control.

Although plaintiff's motion to compel may be plead inartfully, both parties know that plaintiff has unsuccessfully tried for years to obtain discovery through various methods. See Dckt. Nos. 40, 56, 60, 71, 122, 139, 140, 152, 153 (plaintiff's various motions to compel discovery in this action). It is clear that plaintiff wishes to obtain these documents, that he has requested them from defendants' counsel, and that defendants' counsel has refused to provide them to him. Plaintiff has also been stymied in his attempts to obtain these documents directly from High Desert State Prison, likely because the litigation coordinator believes that CDCR is a party to this lawsuit. See Dckt. No. 140, Ex. A (letter from HDSP litigation coordinator denying plaintiff's request for public records because "the records requested pertain to pending litigation to which CDCR is a party"). The parties' and the court's time would be better spent resolving the merits of the case rather than dwelling on procedural technicalities in a pro se case where plaintiff has been diligent and appears to be entitled to at least some of the documents he seeks.

Plaintiff's motion to compel is granted. Defendants shall produce the documents requested in Dckt. No. 140 to plaintiff within 14 days of the date of this order.

II. Unserved defendants

Plaintiff has filed a motion for court intervention to find defendants Costra, Segerstrom and Adams, who have not yet been served. Dckt. No. 143. Defendants oppose plaintiff's motion for intervention, stating that the court has already assisted plaintiff and defendants have made efforts beyond the bounds of discovery to find these defendants. Dckt. No. 147.

After plaintiff filed a motion to compel defendants to produce the addresses of three defendants, G. Costra, Segerstrom, and Ms. Kathleen J. Adams, M.D., the court ordered defendants to query CDCR for information regarding these three defendants' whereabouts. Dckt. No. 136. Plaintiff stated that he had previously served discovery on defendants, had requested the defendants' addresses from the Department of Justice Office of Public Records and the Department of Corrections Office of Public Records, but had not obtained these defendants' addresses. Defendants complied with the court order, stating that CDCR does not have contact information for defendants Dr. Segerstrom or Dr. Adams. Dckt. No. 138. However, CDCR had a last known address for an employee named "G. Castro," which is believed to be the defendant plaintiff has identified as G. Costra. Id. Defendants' counsel attests that he has provided Castro's last-known home address to the U.S. Marshal. Id.

As plaintiff has now received copies of his medical records through discovery, he has now provided additional information for service. Dckt. No. 50. Defendant Dr. Segerstrom's first name is Steven; he may have the ID number of 9938 at Banner Lassen Medical Center. Defendant Dr. Kathleen J. Adams' ID number may be 90471. Dr. Adams may have previously worked at Sutter Coast Hospital.

Plaintiff has already attempted to serve these defendants at Banner Lassen Medical Center where they previously worked, but the summons forms were returned unexecuted, as the defendants were not at the address provided, the person attempting service could not "get ahold of anyone at Banner Lassen," and the defendants were not in the CDC locator. Dckt. No. 116. As the U.S. Marshal has already failed in its attempts to locate these defendants at Banner Lassen, it appears that the additional information that plaintiff has provided will not be of much assistance to the Marshal.

The court has found that plaintiff has stated claims against Segerstrom and Adams, and it appears that plaintiff has been diligent in attempting to serve them. As it appears that other avenues have been exhausted, service by publication may be appropriate.

The court grants plaintiff's motion for court intervention as follows. Defendants may, within fourteen days from the date of this order, inform the court that they oppose service by publication. Defendants may provide an alternate plan for serving Segerstrom and Adams. If defendants do not file a response to this order ...


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