The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's motion to compel supplemental discovery responses, filed on December 30, 2010, to which defendant filed an opposition on February 2, 2011, after which plaintiff filed a reply on February 11, 2011. Pursuant to the analysis below, the court will grant the motion in part and deny it in part.
The gravamen of this action, which proceeds on the original complaint filed on December 11, 2009 (see Docs. ## 15, 17), is that defendant Fields violated plaintiff's First Amendment right to file inmate grievances and pursue civil rights litigation. The complaint states that plaintiff was transferred to CSP-Sacramento's Facility C in August 2007 as a non- gang-affiliated prisoner, and that in February or March 2008, Fields retaliated against plaintiff for filing past grievances by adding him to C-Facility's list as a Blood gang associate. (Doc. #1, hereinafter "Complaint," at ¶¶ 7, 10, 24.) As a result, plaintiff was included in lockdowns of Blood and Crip gang associates in April and June 2008, and continues to suffer restrictions and hardships as a result of being identified as a gang associate among the prison population. (Id. at ¶¶ 11, 13, 17.) Plaintiff further alleges that, after defendant Fields was served with plaintiff's complaint and summons in another legal action in August 2008, Fields retaliated by having plaintiff fired from his job assignment. (Id. at ¶ 16.) Plaintiff alleges that, due to Fields' retaliatory actions, he remains vulnerable to future lockdowns and associated injuries as a purported Blood associate. (Id. at ¶¶ 28, 29.)
Plaintiff by his motion avers that defendant's responses to his Requests for Production of Documents (hereinafter "RFPs"), Set One, Nos. 7, 8, and 9, are deficient, and asks the court to compel defendant to produce responsive documents. (Mtn. at 4-6.) He also avers that defendant's responses to his Interrogatories, Set One, Nos. 4, 5, 10, 11, 21, 22, 24, and 25 are deficient, and asks the court to compel defendant to supplement its responses to those interrogatories. (Mtn. at 6-12.) He also avers that defendant's responses to these interrogatories were untimely, and thus her objections to them should be waived. (Mtn. at 12.) Plaintiff also avers that defendant's responses to his requests for admissions (hereinafter "RFAs"), Set One, Nos. 1, 9, 11, 12, 18 and 19 are "evasive" and therefore should be deemed admissions. (Mtn. at 13-17.) He also avers that defendant's response to his request for admissions, Set Two, Nos. 3 and 4, are deficient and should be deemed admissions. (Mtn. at 15-17.)*fn1
In opposition, defendant argues that she "did not produce documents in response to nearly all of plaintiff's requests because they do not exist." She avers that other requested documents could not be located, and that plaintiff's central file, which he requested, was available for inspection and copying pursuant to institutional procedures, and nothing further was required. (Opp. at 3.) As to the disputed interrogatories, defendant avers that she either "provided straightforward, candid answers" or properly objected to those interrogatories that were open-ended and vague. (Id.. at 5-6.) As to the disputed requests for admission, defendant avers that, "[w]ith respect to many requests, [she], although not necessarily disputing the information presented by Plaintiff, did not have personal knowledge of the events at issue" and thus was in "no position to state that the information is true." Thus, "it is unreasonable . . . to attempt to compel [her] to admit information she does not have." (Id. at 4.)
In reply, plaintiff counters that defendant has refused to supply certain documents` that are in her possession, custody, and control as a CDCR employee, and he should not have to go through "prison policy and procedures for the items sought." (Reply at 2.) As to the disputed interrogatories, plaintiff maintains that defendant's responses are deficient and her objections improper. (Id. at 4.) As to the disputed RFAs, plaintiff argues that defendant has merely stated that she lacks personal knowledge of the admissions sought, without making a good faith investigation or reasonable inquiry as required by her discovery obligation. (Id. at 3.)
The undersigned weighs these arguments below. Discussion
I. Applicable Legal Standards
The scope of discovery under Fed. R. Civ. P. 26(b)(1) is broad. Discovery may be obtained as to "any non-privileged matter that is relevant to any party's claim or defense -- including the existence, description, nature, custody, condition and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter." Id. Discovery may be sought of relevant information not admissible at trial "if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id. The court, however, may limit discovery if it ". . . is unreasonably cumulative or duplicative," or can be obtained from another source "that is more convenient, less burdensome, or less expensive"; or if the party who seeks discovery "has had ample opportunity to obtain the information by discovery. . .."; or if the proposed discovery is overly burdensome. Fed. R. Civ. P. 26(b)(2)(C)(I), (ii) and (iii).
A continuing issue in prisoner civil rights discovery involves the extent to which a named defendant has custody and control over documents and other information for purposes of discovery. Quite often a CDCR defendant will profess an inability to acquire agency documents on account of no custody and control, even documents prepared by that individual in the course and scope of his or her duties. Quite often this asserted inability to acquire agency documents in the discovery phase of the case somehow evaporates when it comes time for trial--the defendant seems to be able to acquire any agency document the defendant desires to proffer.
The reach of Fed. R. Civ. P. 34, which governs requests for production, "extends to all relevant documents, tangible things and entry upon designated land or other property." Clark v. Vega Wholesale Inc., supra, 181 FRD at 472-473, citing 8A C. Wright & A. Miller, Federal Practice and Procedure § 2206, at 381. Rule 34 does require that the party upon whom a request is served "be in possession, custody, or control of the requested item." Id., at 473, citing Estate of Young v. Holmes, 134 F.R.D. 291, 293 (D. Nev.1991). Under Rule 34, "[c]ontrol is defined as the legal right to obtain documents upon demand. [Citation.] The party seeking production of the documents . . . bears the burden of proving that the opposing party has such control." U.S. Int'l Union of Petroleum and Indus. Workers, AFL-CIO, 870 F.2d 1450, 1452 (9th Cir. 1989). See also In re Citric Acid Lit., 191 F.3d 1090, 1108 (9th Cir. 1999) (discussing the same issue in a Rule 45 context).
Defendants in these type of cases quite often forget that it is important to recognize the capacity in which they are sued: sometimes individual, sometimes official, sometimes both. If sued in official capacity, the degree to which the defendant has access to government documents expands exponentially in that it is well established that a suit against a named defendant in official capacity is the functional equivalent of a suit against the state. Center for Bio-Ethical Reform, Inc. v. LASD, 533 F.3d 780, 799 (9th Cir. 2008); Butler v. Elle, 281 F.3d 1014, 1023 (n.8) (9th Cir. 2002); Ruvalcaba v. City of Los Angeles,, 167 F.3d 514, 524 n.3 (9th Cir. 1999) all citing Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099 (1985). Whatever the ultimate ability of the court to order effective "CDCR" or "individual prison" injunctive relief, i.e., is the officer named as a defendant one who can command agency action, the fact remains that until such a determination is made on the merits of the case, the "official capacity" defendant remains until replaced or dismissed. The present result as it pertains to discovery is that the official capacity "state" defendant has the ability to demand state agency documents.
In this case, plaintiff did not specify in what capacity he sued the defendant. However, he did ask for injunctive relief in the complaint , including relief which exceeded a simple order vis-a-vis the named defendant to restrain individual action.*fn2 Therefore, it can only be presumed that the defendant has been sued in her official capacity on account that the relief requested, at least in part, could not be obtained against an defendant in individual capacity status. Defendant's custody and control objections are therefore not meritorious.
Also, as a preliminary matter, the court addresses plaintiff's contention that, because defendant's responses were approximately eight days late, defendant's objections should be waived for untimeliness. (Mtn. at 12.) In response, defendant concedes that her responses were not served within the mandated forty-five days, but notes that, due to processing problems in the mailroom at CSP-Sacramento, she did not receive plaintiff's requests until the time for responding had come and gone. She further states that, as soon as her counsel received the discovery requests, counsel spoke with defendant and drafted responses. (Opp. at 6.) Having reviewed defendant's attached declarations (Opp., Exs. D, E), the court is satisfied that defendant made a good faith effort to respond to plaintiff's interrogatories in a timely fashion. There is little this defendant's counsel could have done to anticipate mailroom problems at the prison. Under these circumstances, no objections are waived.
I. Requests for Production of Documents
Plaintiff seeks to compel responses to RFPs, Set One, Nos. 7, 8, and 9. The court will grant plaintiff's motion as to RFP No. 7 and deny the motion as to RFP Nos. 8 and 9.
Request For Production No. 7: "The Inmate Interview form, you conducted with Plaintiff in 6 Block between February and March of 2008, regarding the February 7th 2008 lockdown in C-Facility in CSP-Sacramento." (Opp., Ex. A at 4.) Defendant objects that this request is vague and not reasonably calculated to lead to the discovery of admissible evidence. (Id. at 4-5.) These objections are overruled. Defendant further responded that she could not locate this document after a diligent search, but if she found it in the future, she would provide it. (Id.)
Here, defendant is a CDCR employee who as seen from the above discussion may be presumed to have a legal right to obtain the requested record upon demand. Moreover, the requested document is highly relevant to plaintiff's allegations. Plaintiff alleges that,
[i]n February or March of 2008, Defendant Field learned that Plaintiff was listed in C-Facility as a non-affiliated prisoner. On information and belief, thereafter Defendant Fields with a retaliatory motive for Plaintiff filing past grievances and lawsuit against staff added Plaintiff to C-Facility's 'list' as a Blood gang associate. (Complaint at 3.) Any interview that defendant conducted with plaintiff during this two-month period is likely to shed light on her basis for classifying him as a Blood gang associate (if indeed she did so), and may lead to the discovery of admissible evidence of retaliatory motive or lack thereof. Defendant does not maintain that the alleged interview never took place, nor that this particular document does not exist. If it does exist, it is not clear to the court why defendant would be unable to locate a document that presumably was filed as a matter of course in the prison's recordkeeping system. The court therefore will grant plaintiff's motion's as to RFP No. 7 and instruct defendant to redouble her efforts to locate the document.
Request for Production No. 8: "The CDC Form 1697 Inmate Work Supervisor's Time Log for Plaintiff between November of 2007 through August of 2008."
Opp., Ex. A at 5.) Defendant responded that documents responsive to this request are maintained in plaintiff's central file, "which is available for inspection and copying pursuant ...