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Ferdinand Reynolds v. K. Gerstel

July 1, 2011



(Doc. 46)

I. Procedural History

Plaintiff Ferdinand Reynolds ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on April 16, 2009. (Doc. 1). This action is proceeding on Plaintiff's original complaint filed on April 16, 2009, against Defendant Gerstel for conduct regarding a tooth extraction on August 18, 2008, in violation of the Eighth Amendment. (Docs. 24, 25, 36). Pursuant to the scheduling order filed on April 21, 2010, the deadline for the completion of discovery was December 21, 2010, and the deadline to file pretrial dispositive motions was February 28, 2011.

On December 1, 2010, Plaintiff filed a motion to compel. (Doc. 46). On December 22, 2010, Defendant filed an opposition. (Doc. 49). Plaintiff did not file a reply.

II. Plaintiff's Motion for Subpoena Duces Tecum

A. Legal Standard

"Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense. . . . Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1). For document production requests, responding parties must produce documents which are in their "possession, custody or control." Fed. R. Civ. P. 34(a)(1). "Property is deemed within a party's 'possession, custody, or control' if the party has actual possession, custody, or control thereof or the legal right to obtain the property on demand." Allen v. Woodford, No. CV-F-05-1104 OWW LJO, 2007 WL 309945, *2 (E.D.Cal. Jan. 30, 2007) (citing In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir. 1995)); accord Bovarie v. Schwarzenegger, No. 08cv1661 LAB (NLS), 2011 WL 719206, at *4 (S.D.Cal. Feb. 22, 2011); Evans v. Tilton, No. 1:07CV01814 DLB PC, 2010 WL 1136216, at *1 (E.D.Cal. Mar. 19, 2010). Parties should also be mindful of the fact that they will be precluded from using the requested documents that they failed to produce during discovery, as evidence in support of summary judgment, in opposition to any motions, and in any way during trial. Fed. R. Civ. P. 37(c)(1).

B. Request One and Four

POD 1(a): "Copy of the full completed investigation report conducted by the Chief Dentist at Corcoran State Prison named Dr. Warren H. Liu against Defendant Dr. Kirk Gerstel DDS in 2008, including all written statements from witnesses etc which lead Dr. Liu to conclude that defendant Dr. Gerstel violated CDCR's dental policies!" Plaintiff also incorporates by reference to attached objections by Defendant the request for investigatory documents that may be in Defendant's personnel file.

POD 4(a): "Copy of full completed investigation report by Ms. Cheryl Schutt who was the former Health Care Manager at Corcoran State Prison in 2008, including witnesses statements and documents that lead her to conclude that defendant Dr. Gerstel violated CDCR's dental policies."

POD 4(b): "Copy of full completed investigation report conducted by Captain M. Hodges-Wilkins at CDCR's headquarters in Sacramento in 2009, including witnesses statements which lead her to Grant my 3rd Level Of Appeal In Part against defendant Dr. Gerstel for violating CDCR's dental policies!"


Defendant objects on the ground that there was not an "investigation," but rather an "inquiry." (Doc. 46 at 5-7). This is unpersuasive. Without citing any supporting law, Defendant further objects on the ground that personnel matters are confidential. (Doc. 46 at 5-7; Doc. 49). Defendant cites to the declaration of M. Kimbrell, the litigation coordinator for Corcoran State Prison who states that inmate appeal inquiries are confident to ensure candid responses and to protect inmate witnesses from being labeled as a "snitch." (Doc. 49-1, Kimbrell's Decl. at ¶ 6). Defendant fails to explain the relevance of such a statement given that it is not apparent how a medical inquiry would entail inmate "snitches" nor explain why those interviewed would be any less candid then when speaking under oath in court. Parts of personnel files can be relevant to § 1983 claims. See, e.g., Hillblom v. County of Fresno, 539 F.Supp.2d 1192, 1212 (E.D. Cal. 2008) (police officer's personnel file discoverable in section 1983 action); Soto v. City of Concord, 162 F.R.D. 603, 614-15 (N.D. Cal. 1995) ("information may lead to evidence of a continuing course of conduct reflecting malicious intent" or "reveal the defendant officers' patterns of behavior as well as [their agency's] response to such behavior"); Miller v. Pancucci, 141 F.R.D. 292, 296 (C.D. Cal. 1992); Baker v. Hatch, No. CIV S-07-2204 FCD EFB P, 2010 U.S. Dist. LEXIS 91974, at *2-*3, 2010 WL 3212859 (E.D.Cal. Aug.12, 2010). Also, information can be relevant as to issues of credibility about the defendants. See Tennison v. City & County of San Francisco, No. C 04 0574 CW (EMC), 2005 WL 89008, at *1 (N.D.Cal. Jan.12, 2005); Soto, 162 F.R.D. at 615; Miller, 141 F.R.D. at 296 n. 3.

Defendant has failed to make the required threshold showing to demonstrate entitlement to federal privilege. Federal common law recognizes a qualified privilege for official information, also known as the governmental privilege, or state secret privilege. Kerr v. United States District Court for the Northern District of California, 511 F.2d 192, 198 (9th Cir.1975). The application of the official information privilege is "contingent upon the competing interests of the requesting litigant and subject to disclosure especially where protective measures are taken." Id. Government personnel files are considered official information. See Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir.1990) (finding city police department personnel files not subject to discovery for general search). To determine whether the information sought is privileged, courts must "weigh the potential benefits of ...

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