Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

William Young v. S. Herrmann

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


July 20, 2011

WILLIAM YOUNG SUTHERLAND, PLAINTIFF,
v.
S. HERRMANN, ET AL., DEFENDANTS.

ORDER

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 this request will be required.

By Request No. 8, plaintiff sought

All information on Officer training with regards to the use of the BLACK BOX when restraining inmates and the procedures to follow if said inmates complain about the restraints being too tight. Plaintiff will be requesting that an Expert Witness trained in these procedures be called to show the proper procedures on restraining inmates to be transportated [sic] to U.C. Davis or any other outside Medical facility.

Ex. A to Motion to Compel, at 3.

Defendants responded to this 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. Additionally, the information plaintiff requests, procedures relating to the transportation of inmates, could jeopardize the safety and security of the institution. Without waiving these objections, Defendants respond as follows: Defendants have conducted a diligent search of their records and have no documents in their possession, custody or control relating to training materials. However, all policies and procedures relating to the use of restraints are in Title 15, section 3268.2.

Ex. B to Motion to Compel, at 5-6.

As noted above, defendants cannot be compelled to produce documents they do not have. No further response to this request will be required.

By Request No. 9, plaintiff sought

All testimonies by Officers, Inmate Witnesses, Investigators, and any, and all other persons that made such statements or gave testimony concerning the Inmate/Parolee Appeal[ [sic] process, Appeal Log Number: SAC-C-08-0705, eather [sic] written, recorded or any and all other ways taken and recorded.

Ex. A to Motion to Compel, at 3.

Defendants responded to this 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 plaintiff seeks confidential documents. Without waiving these objections, Defendants respond as follows: All non-confidential documents in Defendants' possession, custudy [sic] and control pertaining to Plaintiff's administrative grievance would be in Plaintiff's central file, which is available to him for copying under institutional policies and procedures.

Ex. B to Motion to Compel, at 6. Good cause appearing, defendants will be directed to provide to the court for in camera review all confidential documents responsive to this request. Thereafter, the court will determine whether further production in response to plaintiff's discovery request is required.

By Request No. 12, plaintiff sought:

All personal records of the following Correctional Officers: S. Herrmann, M. Spinks, A. Parmar and R. Sicculuna pertaining to, but not limited to, inmate complaints, staff complaints, citizen complaints, or any other disciplinary actions involving, but not limited to, inmates, failure to follow instructions, rules violations and abuses.

Ex. A to Motion to Compel, at 4.

Defendants responded to this request as follows:

Defendants object to this request on the grounds that it is compound, overly burdensome, overbroad, irrelevant and not reasonably calculated to lead to the discovery of admissible evidence, as Plaintiff seeks mere complaints that are not admissible in this case for any purpose. Defendants further object to this request on the grounds that disclosure of the documents requested would violate Defendants' right to privacy because peace officer personnel records are protected by state and federal privileges and California statutes, including California Penal Code sections 832.7 and 6126.3. Defendants object on the grounds that government personnel files are protected by the official information privilege. Without waiving these objections, Defendants respond as follows: Defendants have no documents in their possession, custody or control, as they have no sustained complaints in their personnel files.

Ex. B to Motion to Compel, at 7.

As noted above, defendants cannot be compelled to produce documents they do not have. No further response to this request will be required.

By Request No. 13, plaintiff sought:

Names and if know [sic], addresses, phone numbers and any and all contact information of persons "Likely to have discoverable information relevant to disputed facts alleged with particularity in pleadings.".

Ex. A to Motion to Compel, at 4.

Defendants responded to this request as follows:

Defendants object that this is not a request for a document. If this request was intended to be an interrogatory, Plaintiff has failed to specify which Defendant it is directed to. Given that this is not arequest for a document and is not an interrogatory directed at aspecific party, Defendants will not respond to this request.

Ex. B to Motion to Compel, at 8.

Defendants' objection that this request is not a request for production of documents is well-taken. No further response to this request will be required.

For all of the foregoing reasons, defendants will be required to tender to the court within ten days for in camera review all confidential documents responsive to Request Number 9. In all other respects, plaintiff's December 10, 2010 motion to compel will be denied.

On December 20, 2010, plaintiff filed three subpoenas directed to Deputy Attorney General Jessica R. Devencenzi. By these subpoenas, plaintiff seeks production of documents that are the subject of his December 10, 2010 motion to compel. Plaintiff's subpoenas will be placed in the court file and disregarded.*fn3

On December 30, 2010, plaintiff filed another motion to compel. By that motion, plaintiff seeks an order compelling disclosure of information requested with regard to his inmate appeal dated March 12, 2008. Specifically, plaintiff seeks "any and all documents or files" pertaining to all testimony given during the investigation of that appeal. Plaintiff relies on a statement in the response to his appeal by Associate Warden J. Lizarraga that four officers, a doctor, and two inmates were question concerning plaintiff's appeal. Defendants oppose the motion on the grounds that in response to Requests No. 9 and 12 of his first request for production of documents, plaintiff has been informed that (1) defendants have no sustained allegations of staff misconduct in their personnel files; and (2) plaintiff's administrative grievance is in his central file, which is available for his review through institutional procedures.

The motion seeks the same information sought by Request No. 9 of plaintiff's first request for production of documents. Plaintiff's motion in this regard is redundant and will therefore be denied.

On January 3, 2011, plaintiff filed a response to defendants' opposition to plaintiff's December 10, 2010 motion to compel, in which he requests imposition of sanctions against defendants. For the reasons set forth above, plaintiff's motion to compel will be denied with the exception of the requirement that defendants tender certain documents for in camera review. Plaintiff's request for sanctions will therefore be denied.

On January 26, 2011, plaintiff filed a motion for an order requiring the Clerk of the Court to process and file several subpoenas attached to the motion together with a motion for an order directing the United States Marshal to personally serve those subpoenas. By the subpoenas, plaintiff seeks information concerning statements made to Associate Warden Lizagarra during the investigation of plaintiff's inmate appeal, information concerning the identity of an inmate in Receiving and Release on the morning of the incident at issue, and information on officer training concerning the use of the black box in restraining inmates. All of this information was sought by plaintiff during discovery. Moreover, as noted above, all discovery requests were to be served sixty days prior to December 17, 2010. On March 28, 2011 and June 2, 2011, plaintiff filed additional requests for issuance of subpoenas duces tecum. To the extent that these subpoenas are not duplicative of earlier discovery requests, they are untimely. All of these motions and requests by plaintiff will be denied.

In accordance with the above, IT IS HEREBY ORDERED that: 1. Plaintiff's October 8, 2010 motion to depose inmate witnesses (Doc. No. 35) is denied without prejudice;

2. Plaintiff's December 2, 2010 motion for extension of time (Doc. No. 38) is denied;

3. Within ten days from the date of this order defendants shall submit to the chambers of the undersigned for in camera review all confidential documents responsive to Request No. 9 in plaintiff's first request for production of documents. In all other respects, plaintiff's December 10, 2010 motion to compel (Doc. No. 41) is denied;

4. Plaintiff's December 30, 2010 motion (Doc. No. 47) is denied;

5. Plaintiff's January 3, 2011 request for sanctions is denied;

6. Plaintiff's January 26, 2011 motions (Doc. Nos. 52 and 53) are denied.

7. Plaintiff's March 28, 2011 request for issuance of subpoenas (Doc. No. 59) is denied; and

8. Plaintiff's June 2, 2011 motion for subpoenas (Docket No. 65) is denied.

DAD:12 suth2391.dis


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.