Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Several discovery motions are pending before the court.
On October 8, 2010, plaintiff filed a motion for leave to depose plaintiff's incarcerated witnesses. Plaintiff, who is incarcerated at Pleasant Valley State Prison in Coalinga, California, seeks permission to take the deposition of two inmates incarcerated at California State Prison-Sacramento.*fn1 Plaintiff alleges that these inmates were incarcerated with him at the time of the events alleged in his complaint and were first hand witnesses thereto. By order filed November 15, 2010, defendants were directed to respond to plaintiff's motion. On November 18, 2010, defendants filed a response. Therein, defendants represent that they have no objection to plaintiff deposing inmate witnesses but they argue that plaintiff must bear the costs associated with such depositions and that the motion should be denied unless plaintiff can do so.
Section 3139 of Title 15 of the California Code of Regulations requires an inmate to obtain written authorization from the Warden or designee to correspond with another inmate. See tit. 15 § 3139. Even assuming arguendo that plaintiff, who is proceeding with this action in forma pauperis, can bear the costs associated with conducting the two depositions he desires, he has not demonstrated that he has obtained the required permission to communicate with either or both of the inmates he seeks to depose.*fn2 For that reason, plaintiff's motion will be denied at this time without prejudice.
On December 2, 2010, plaintiff filed a motion for a fifty-day extension of time to resolve a discovery dispute with defendants including, as necessary, to file a motion to compel. On December 7, 2010, defendants filed a response to the request in which they represent, inter alia, that they have no opposition to extending the time for plaintiff to file a motion to compel. On December 10, 2010, plaintiff filed a motion to compel further responses to the discovery described in his motion for extension of time. Pursuant to the scheduling order filed in this action on August 30, 2010, the deadline for filing discovery motions was December 17, 2010. Plaintiff's December 10, 2010 motion to compel was timely filed. Accordingly, his December 2, 2010 motion for extension of time will be denied.
By his December 10, 2010 motion to compel, plaintiff seeks to compel further responses to six requests contained in a request for production of documents served on defendants on or about September 28, 2010. Specifically, plaintiff seeks a further response to his requests for production of documents nos. 1, 3, 8, 9, 12 and 13.
By Request No. 1, plaintiff sought Records, Documents, Logs or any and all other information with the names of inmates that were present in R and R (Receiving and Release) at the time that the Plaintiff was being restrained to be transported to U.C. Davis Medical Facility on March 3, 2008 between the hours of 7:00 a.m. and 12:30 p.m. as there is a vital witness that asked to testify as to what he saw but Plaintiff could not acquire the name therefore this request is relevant to acquire the name of this vital witness, this witness was held in a single holding tank that was approximately two (2) feet in front of where the restraints were placed on Plaintiff and was there, in the same holding tank, upon the return of Plaintiff when his restraints were removed.
Ex. A to Plaintiff's Motion to Compel, filed December 10, 2010 (Doc. No. 41), at 1-2. Defendants responded to this discovery request as follows:
Defendants object to this request on the grounds that it is compound and not likely to lead to the discovery of admissible evidence. Defendants further object to the extent that the information Plaintiff seeks violates other inmates' privacy rights. Without waiving these objections, Defendants respond as follows: Defendants have conducted a diligent search of their records and have provided, as Attachment 1, all documents in their possession, custody or control.
Ex. B to Plaintiff's Motion to Compel, at 2. The Attachment 1 referred to by defendants includes a California State Prison-Sacramento Transportation Summary that lists four transportation officers and four inmates transported to U.C. Davis Medical Center. The form appears to list the date of transport as "2/2/08", but does identify plaintiff as one of the inmates transported. See Attachment 1 to Ex. B to Declaration of J. Devencenzi in Support of Defendants' Opposition to Plaintiff's Motion to Compel, filed December 21, 2010. Attachment 1 also includes a memorandum dated June 11, 2009 concerning unscheduled stops during transport of inmates from California State Prison-Sacramento to medical appointments.
A party from whom production of documents is sought is only required to produce those documents which are "in the responding party's possession, custody, or control." Fed. R. Civ. P. 34(a). Here, defendants represent that they have produced to plaintiff all documents intheir possession, custody or control responsive to Request No. 1. Defendants cannot be compelled to produce documents they do not have. Accordingly, no further response to this discovery request will be required.
By Request No. 3, plaintiff sought
A copy of a map with the transportation route to U.C. Davis that was taken March 03, 2008, and the Detoured route taken to 34th and C Street, to the restaurant named "Roxie's" or "Roxy's" (spelling of restaurant not relevant to discovery).
Ex. A to Motion to Compel, at 2.
Defendants responded to this request as follows:
Defendants object to this request on the ground that it is compound and not likely to lead to the discovery of admissible evidence. Defendants further object that this request seeks information that could jeopardize the safety and security of the institution--that is, Defendants cannot provide plaintiff with a map showing the route they take when transporting inmates to medical appointments. That disclosure would put the transportation teams, as well as the inmates they are transporting, at risk. Without waiving these objections, Defendants respond as follows: Defendants have conducted a diligent search of their records and have no maps in their possession, custody and control.Ex. B to Motion to Compel, at 3.
As noted above, defendants cannot be compelled to produce documents they do not have. No further response to ...