Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

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

Daniel Manriquez v. Huchins

July 26, 2011

DANIEL MANRIQUEZ,
PLAINTIFF,
v.
HUCHINS, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER DENYING PLAINTIFF'S MOTION FOR RULE 11(c) SANCTIONS (ECF Nos. 60, 72, 96) ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S FIRST MOTION TO COMPEL (ECF Nos. 49, 94) ORDER DENYING PLAINTIFF'S SECOND, THIRD, AND FOURTH MOTIONS TO COMPEL (ECF Nos. 52, 53, 55, 56, 58, 62, 63, 77, 100, 104, 105) ORDER DENYING PLAINTIFF'S FIFTH MOTION TO COMPEL AND GRANTING PLAINTIFF'S MOTION FOR COSTS (ECF Nos. 79, 80, 103, 107) ORDER DENYING PLAINTIFF'S MOTION FOR JUDICIAL FINDING THAT QUESTIONS PROPOUNDED ON DEFENDANT MUNOZ AND CLAUSINGS BE DEEMED ADMITTED (ECF Nos. 50, 51, 95, 112) ORDER DENYING PLAINTIFF'S MOTION FOR DETERMINATION OF THE SUFFICIENCY OF DEFENDANT HACKER'S OBJECTIONS TO REQUEST FOR ADMISSIONS AND GRANTING PLAINTIFF'S REQUEST FOR COSTS (ECF Nos. 73, 74, 122, 123) ORDER STRIKING PLAINTIFF'S NOTICE AND SUPPLEMENTAL DECLARATION AND DEFENDANT CLAUSINGS' MOTIONS FOR A PROTECTIVE ORDER (ECF Nos. 74, 75, 81) ORDER D E N Y I N G D E F E N D A N T S CLAUSINGS, DALEY, HACKER, HUCHINS, MUNOZ, OMOS, PAZ, PEREZ, REYNOSO, AND ROBERSON'S MOTION FOR A PROTECTIVE ORDER (ECF Nos. 81-91, 101, 102, 106, 108-111, 113-121) THIRTY DAY DEADLINE

I. Procedural History

Plaintiff Daniel Manriquez ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the complaint, filed March 11, 2009, against Defendants J. Huchins, J. Reynoso, M. Hacker, R. Roberson, C. Munoz, D. Daley, P. Perez, Pax, C. Morse, Omos, and Clausings for cruel and unusual punishment in violation of the Eighth Amendment.*fn1 On September 22, 2010, a discovery and scheduling order issued opening discovery in this action. (ECF No. 42.) On December 10, 2010, a change of attorney notice was filed. (ECF No. 46.) On January 24, 2011, Plaintiff filed a motion to compel discovery. (ECF No. 49.) On January 27, 2011, Plaintiff filed a motion to deem admissions admitted and declaration in support of his motion. (ECF Nos. 50, 51.) On February 14, 2011, Plaintiff filed a second motion to compel and a third motion to compel was filed on February 22, 2011. (ECF Nos. 52, 53.) Plaintiff filed an emergency motion for a stay of the briefing schedule on March 3, 2011. (ECF No. 54.) Defendants filed an opposition to Plaintiff's second motion to compel on March 7, 2011 and an opposition to Plaintiff's third motion to compel on March 15, 2011. (ECF Nos. 55, 56.) On March 17, 2011, Defendants filed a notice of change of designation of counsel. (ECF No. 57.) Plaintiff filed a reply to Defendants opposition to the second motion to compel on March 21, 2011. (ECF No. 58.) Plaintiff filed a motion to have non-opposed motions granted and a motion for sanctions on March 22, 2011. (ECF Nos. 59, 60.) On March 23, 2011, this case was reassigned to the undersigned Magistrate Judge. (ECF No. 61.)

On March 28, 2011, Plaintiff filed a reply to Defendant's opposition to his third motion to compel and a declaration of inmate Gilbert Garcia. (ECF Nos. 62, 63.) Plaintiff filed a motion to extend the discovery schedule and declaration on March 30, 2011. (ECF No. 64, 65.) On April 1, 2011, Plaintiff filed a motion for leave to amend the complaint, motion to remove exhibits from the complaint, motion to supplement the proposed complaint and lodged a complaint and supplemental paragraph. (ECF Nos. 66-70.) On April 27, 2011, an order issued denying Plaintiff's motion to grant the unopposed motions and ordering Defendants to file a response to the motions within thirty days. (ECF No. 71.) On May 9, 2011, Defendants filed an opposition to Plaintiff's motion for sanctions, and Plaintiff filed a motion to determine the sufficiency of Defendants' objections to Plaintiff's second motion to compel, a declaration in support of the motion, notice of a supplemental declaration and a supplemental declaration. (ECF Nos. 72-76.)

Plaintiff filed a fourth motion to compel on May 16, 2011. (ECF No. 77.) On May 20, 2011, Plaintiff filed a fifth motion to compel, and declaration in support of his motion, and Defendants filed motions for a protective order and a motion to extend the discovery schedule. (ECF Nos. 78-91.) On May 23, 2011, an order issued extending the discovery cut-off date an additional thirty days. (ECF No. 92.) On May 26, Defendants filed oppositions to Plaintiff's motions to compel and motion to deem admissions admitted. (ECF Nos. 93-95.) Plaintiff filed a reply to Defendants' opposition to Plaintiff's motion for sanctions on May 31, 2011. (ECF No. 96.) On June 6, 2011, Plaintiff filed a sixth motion to compel, a motion to determine the sufficiency of Defendants' objections, and declaration in support of Plaintiff's second and third motions to compel. (ECF Nos. 97-100.) Plaintiff filed oppositions to Defendants' motions for a protective order on June 8, 2011. (ECF Nos. 101, 102.) Defendants filed an opposition to Plaintiff's fourth and fifth motions to compel and exhibits, and Plaintiff filed oppositions to Defendants' motions for a protective order on June 9, 2011. (ECF Nos. 103-106.) Plaintiff filed additional oppositions to Defendants' motions for a protective order on June, 10, 2011; June 13, 2011; June 14, 2011; and June 15, 2011. (ECF Nos. 108-111, 113.) Plaintiff filed a reply to Defendants' opposition to his motion to have admissions deemed admitted on June 15, 2011. (ECF No. 112.) Defendants' filed a reply to Plaintiff's opposition to their motions for a protective order and Defendant Hacker filed an opposition to Plaintiff's motion to determine the sufficiency of his responses on June 17, 2011. (ECF Nos. 114-122.) On July 13, 2011, Plaintiff filed replies to Defendants opposition to the fourth and fifth motions to compel and a declaration. (ECF Nos. 127, 128, 129.)

The Local Rules provide for a motion, an opposition, and a reply. Neither the Local Rules nor the Federal Rules provide the right to file a surreply, and the Court neither requested one nor granted a request on the behalf of Plaintiff to file one in any of his motions. Accordingly, Plaintiff's surreply, filed May 9, 2011, shall be stricken from the record. The local rules provide that "[t]he moving party may, not more than seven (7) days after the opposition is served, serve and file a reply to the opposition." Local Rule 230(l). In addition to the fact that Plaintiff raises new arguments and motions in his replies filed July 13, 2011, which he may not do, Plaintiff's replies are untimely and shall not be considered.*fn2

II. Motion for Rule 11(c) Sanctions

Since the issues involved in Plaintiff's motion for sanctions are relevant to all the motions brought by Plaintiff in this action, the Court will initially address Plaintiff's motion for Rule 11 sanctions. Plaintiff requests sanctions against Defendants alleging they have submitted false and misleading declarations to the Court. Plaintiff argues that defense counsel, Robert Murphy, has submitted a false declaration because he stated that he had no knowledge of this case, and did not work on it until December 2010. Plaintiff alleges this is false because Mr. Murphy signed responses to discovery requests prior to December 2010. Plaintiff claims that Mr. Murphy has committed perjury, or at a minimum, misled the Court and requests sanctions.

Defendants argue that Plaintiff claims no personal knowledge of what occurred inside defense counsel's law firm between November 2010 and January 2011. Plaintiff makes this motion solely on the fact that Mr. Murphy's name appeared on discovery responses. Defendants state that an attorney's name can appear on a pleading without that attorney preparing the document.

Prior to December 2010, defense counsel's firm had a correctional litigation team that was comprised of five attorneys. On or about November 22, 2010, three of these attorneys left the firm, including the attorneys assigned to the instant action. In addition to the attorneys, the team secretary and paralegal also left. On November 30, 2010, the fourth attorney on the correctional litigation team left the firm. Robert Murphy was the only remaining member of the litigation team. (Declaration of Robert E. Murphy 6:7-13, ECF No. 72.)

At this time, the firm had approximately eighty five active California Department of Corrections and Rehabilitation ("CDCR") litigation files and twenty or more CDCR cases on appeal. In mid December 2010, CDCR made the decision to split the cases between the current firm and the firm where the attorneys who had left the firm were now employed. CDCR handled each case individually and the decision on which firm would be assigned each case was made an a rolling basis in December 2010. (Id. at 6:14-19.) During this time period, Mr. Murphy was assigned to "baby-sit" the files during the decision making process and his name appeared on pleadings that were unassigned at the time. (Id. at 6:20-23.) Mr. Murphy was assigned to handle eighteen cases during the assignment process and does not recall the date he began review of this action, however does recall that other cases demanded his attention during this time period. ( Id. at 6:24-27.)

During December 2010 and January 2011, the firm created a new correctional litigation team and the firm name was changed on January 1, 2011. (Id. at 7:4-6.) As the new team members began reviewing files it was discovered that some files were missing documents and others had court dates and discovery due dates that had not been entered into the firm's electronic calendar program. This case was one of the cases involved. (Id. at 7:7-12.) Defendants request this motion be denied in its entirety.

Plaintiff replies that Mr. Murphy's name not only appeared on the pleading, but he also signed them. By signing the documents he was certifying that "[to] the best of [his] knowledge, information and belief, formed after an inquiry reasonable under the circumstances: 1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation, (2) the claims, defenses, and other legal contentions are warranted by existing law or by a non-frivolous argument for extending, modifying or reversing existing law, (3) the factual contentions have evidentiary support and (4) the denials of factual contentions are warranted on the evidence. (See Rule 11(b) FRCP.) (Reply to Defendants' Opposition 2, ECF No. 96.)

Ruling: A court may order appropriate sanctions against an attorney, firm, or party when it finds that Rule 11(b) has been violated. Fed. R. Civ. P. 11(c). "This rule does not apply to disclosures and discovery requests, responses, objections and motions under Rule 26 through 37." Fed. R. Civ. P. 11(d). However, the court has inherent power to sanction parties or their attorneys for improper conduct, Chambers v. Nasco, Inc., 501 U.S. 32, 43-46 (1991); Roadway Express, Inc. v. Piper, 447 U.S. 752, 766 (1980); Fink v. Gomez, 239 F.3d 989, 991 (9th Cir. 2001), and should exercise restraint and discretion in ordering sanctions. Chambers, 501 U.S. at 44. The imposition of sanctions is warranted where a party acts in bad faith, that is, "vexatiously, wantonly, or for oppressive reasons." Id. at 45-46.

The parties are advised that the Court will not tolerate the conduct that has occurred in this action. While defense counsel claims that Plaintiff is taking a thermonuclear approach to litigation, the Court recognizes that Defendants lack of response to Plaintiff's discovery requests has been the source of the excessive number of motions that have been filed in this action. Also, Plaintiff's unsupported claims of misconduct by defense counsel is inappropriate and Plaintiff is advised that further incidents of such conduct may result in the imposition of sanctions. Chambers, 501 U.S. at 44.

Defense counsel's firm underwent significant changes that caused a delay in discovery responses being provided to Plaintiff. While, to some extent the delay is understandable, Defendants should have requested an extension of time to respond to requests, which would have addressed many of the issues that have been brought before the court. This action involves nine Defendants and Plaintiff has submitted a large amount of discovery requests. The Court recognizes that attorneys rely on their legal staff to investigate and prepare responses in civil litigation. The Court is not condoning the responses that were provided by Defendants, but given the circumstances that existed, the Court fails to find that defense counsel's conduct warrants sanctions. Accordingly, Plaintiff's motion for Rule 11 sanctions is DENIED.

III. Motion to Compel 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). If Defendants object to one of Plaintiff's discovery requests, it is Plaintiff's burden on his motion to compel to demonstrate why the objection is not justified. In general, Plaintiff must inform the Court which discovery requests are the subject of his motion to compel, and, for each disputed response, inform the Court why the information sought is relevant and why Defendants' objections are not meritorious.

IV. Plaintiff's First Motion to Compel

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).

A. Timeliness of Defendants' Response

Plaintiff states that he served his request for production of documents on September 29, 2010. Plaintiff alleges that Defendants did not respond within the forty five days required by the Federal Rules of Civil Procedure and Defendants agreed to provide him with documents responsive to his request if he granted them a two week extension of time. Plaintiff agreed to a two week extension of time and Defendants did not provide him with responsive documents, but responded with objections to Plaintiff's requests. Plaintiff argues that since Defendants did not serve responsive documents, but responded with objections, they have waived their objections to his discovery requests.

Ruling: Plaintiff sent a letter to Defendants on November 4, 2010, informing them that there responses had not been served within the forty five days required. However, the proof of service shows that Defendants mailed their response on November 2, 2010, within the forty five days allowed by the Federal Rules. (Motion to Compel Discovery C-63, ECF No. 49.)Defendants informed Plaintiff that they were still attempting to obtain the documents from CDCR and stated they would appreciate a two week extension of time so they could provide the documents requested. This appears to be the requested extension to which Plaintiff agreed. Rule 34 requires a written response to a request for production of documents and access to the responsive documents. Burlington Northern & Santa Fe Ry. Co. v. U. S. District Court, 408 F.3d 1142, 1147 (9th Cir. 2005).Defendants filed a timely response and Plaintiff agreed to allow them two weeks to produce responsive documents. Accordingly, Defendants did not waive their objections and Plaintiff's motion to have the Court find Defendants' objections waived is DENIED.

On April 27, 2011, Defendants were ordered to file a response to Plaintiff's motion to compel. Defendants filed a response on May 26, 2011, however failed to address any of Plaintiff's arguments in this motion to compel. In the opposition Defendants address the late response to request for admissions by Defendants Clausing and Munoz, which is not raised in this motion to compel. (ECF Nos. 93, 94.)

B. Plaintiff's Request for Production

1. Request for Production No. 1

Plaintiff's Request for Production No. 1 states:

Any and all documents that describe and or refer to the cell extraction of all inmates on February 28, 2007 by defendants.

Defendants' Response to Request for Production No. 1 states:

Objection. Defendants object to this request on the grounds that it is overly broad, lacks relevance, vague, ambiguous, uncertain as to time and scope to the point of being oppressive and burdensome, calculated to annoy and harass the defendant, because it requests "any and all," therefore, this request is not reasonably calculated to lead to the discovery of admissible evidence. Defendants object on the grounds that the information sought, which is discoverable by this request, to the extent that it is understood by defendants, is equally available to the plaintiff.

Defendants object to this request on the grounds, and to the extent, that the information sought by this request is privileged, confidential, or otherwise not subject to public disclosure.

Defendants object to this request on the grounds, and to the extent, that the information requested violates the California or United States Constitution, any and all personal privacy laws, and the Health Insurance Portability and Accountability Act ("HIPAA"), [sic] of 1996.

Defendants object on the grounds of third-party federal constitutional right to privacy pursuant to Fifth, Ninth, and/or Fourteenth Amendments; individual state constitutional right to privacy pursuant to Article I, section 1.

Defendants object on the grounds of federal executive-deliberative privilege; federal privilege of critical self-analysis; federal official information privilege.

Defendants object on the grounds of privilege to protect the identify of any confidential informant(s) and/or official information pursuant to the California Supreme Court decision in People v. Hobbs (1994) 7 Cal.4th 948, and California Evidence Code sections 1040, 1043, and 1045, and California Government Code sections 3300, et. seq.

Without waiving any of the aforementioned objections, and subject to them, defendant responds as follows: Defendants will produce the relevant portions of Plaintiff's Central File and Medical File, that are not privileged, confidential or otherwise objectionable in response to plaintiff's request.

Defendant notes that investigation and discovery continues, and defendant reserves the right to amend or supplement this response, should other information become available, through the time of trial.

Plaintiff's clarification of the request for production states:

[A]ll the notes and reports prepaired [sic] by each defendant regarding their involvement in the cell extraction and statements they made during the investigation into the Feb. 28, 2007 cell extraction.

Defendants' response states:

Objection. Defendants object to this request on the grounds that it is overly broad, lacks relevance as to the extractions of other inmates, and is vague and ambiguous as to the unit and prison referred to. Defendants also object that the information requested may violate third party privacy rights and the Health Insurance Portability and Accountability Act ("HIPAA"), [sic] of 1996. Without waiving any of these objections, defendants responds [sic] as follows: Defendants provide the Crime/Incident Report (Form 837) for the February 28, 2007 cell extraction.

Plaintiff's argument: Plaintiff objects that the Defendants only agreed to turn over the incident report for the February 28, 2007 cell extraction. Plaintiff argues that other reports exist because prison regulations mandate that supervisory personnel document their conclusions and forward them through the designated chain of command for approval and follow up. These documents are relevant to Plaintiff's allegations that Defendants Reynoso and Huchins ordered the use of excessive force when they ordered Plaintiff to be returned to his contaminated cell. These reports will not only show supervisory liability, but that their actions were intentional.

Ruling: Initially, the Court notes that Government officials may not be held liable for the actions of their subordinates under a theory of respondeat superior. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009). Since a government official cannot be held liable under a theory of vicarious liability for section 1983 actions, Plaintiff must show that the official has violated the Constitution through his own individual actions. Id. at 1948. Plaintiff is reminded that his official capacity claims have been dismissed and each Defendant may only be held liable for his own actions.

Documents relating to the extraction of Plaintiff from his cell on February 28, 2007, are relevant to this action. However, any documents regarding the extraction of other inmates would be irrelevant. Plaintiff's request is over broad in that it is not limited to documents that describe or refer to the extraction of Plaintiff from his cell. Accordingly, the Court will narrow Plaintiff's request and, within thirty days, Defendants are ordered to produce any documents that describe or refer to the extraction of Plaintiff from his cell on February 28, 2007.

2. Request for Production No. 2

Plaintiff's Request for Production No. 2 states:

Any and all documents that pertain to the bases [sic] of the decision to cell extract plaintiff and all/any inmates on February 28, 2007 including, but not limited to any directives orders issued by defendants Huchins, Reynoso, Hacker & Roberson.

Defendants' state the same objection as that stated in Request for Production No. 1. Plaintiff's clarification of the request for production states:

The notes and reports that reflect why did defendants decide to extract all inmates (including [plaintiff]) on Feb. 28, 2007, including the notes reports [sic] reflecting that Huchins, Reynoso, Hacker & Roberson ordered the use of force.

Defendants' state the same objection as that stated in Request for Production No. 1. Plaintiff's argument: Plaintiff argues that the documents are neither accessible to him nor confidential. Plaintiff is not seeking personnel files, but information revealing why Defendants decided to use force on him and who ordered the use of force. This will refute Defendants argument that the decision to use force was a split second decision as Defendants claim, but will show that the decision was deliberate and thought out.

Ruling: Plaintiff's request for documents relating to the decision to extract inmates from their cells is relevant to his claims that Defendants did not act with a legitimate penological purpose. Plaintiff's request for additional production is GRANTED and, within thirty days, Defendants are ordered to produce all documents responsive to this request for production.

3. Request for Production No. 3

Plaintiff's Request for Production No. 3 states:

Any and all documents that pertain to all policies protocols/steps that must be taking [sic] during, before and after a cell extraction by CDCR officers including but not limited to when is it appropriate to cell extract an inmate. How much force should officers use in retrieving a plastic food tray the officers duty to clean/decontaminate a cell after a cell extraction and what items (i.e. supplies clothing, hygiene, bedding) is given to an inmate after being cell extracted and how long after the cell extraction are these items given to the inmate.

Defendants' state the same objection as that stated in Request for Production No. 1. Plaintiff's clarification of the request for production states:

[C]opies of the pages within the "Departmental Opporations [sic] Manual" (DOM), the SATF "Opporational [sic] Procedure" (OP) and SATFS [sic] disturbance control plan [see 15 CCR § 3301] which describes when it is appropriate to (1) cell extract an inmate (2) what the extraction/decontamination teams should do during [sic] before and after a cell extraction (3) the appropriate force necessary to retrieve a tray (4) prison officials duties to decontaminate a cell after a chemical agent has been dispursed [sic] into it (5) what items of clothing, property, bedding, hygiene should be given to an inmate after he is cell extracted and (6) how long after the cell extraction should these items be given to the inmate. Defendants' objection states:

Objection. Defendants object to this request on the grounds that it is overly broad, compound, vague and ambiguous as to the prison and time period referred to, and may seek confidential privileged documents. Without waiving these objections, defendants respond as follows.

Defendants have requested and will provide any non-confidential and non-privileged documents upon receipt. California Code of Regulations, title 15, section 3268 sets forth the standards for use of force; this regulation is equally available.

Plaintiff's argument: Plaintiff is requesting policies and guidelines from the Substance Abuse Treatment Facility ("SATF") which are clearly not privileged. These items are not accessible to Plaintiff as he is no longer confined at SATF and the documents are not in his central file. These documents are relevant to rebut Defendant's claim that they are entitled to qualified immunity as they will show that Defendants were aware that their conduct was unlawful.

Ruling: Boiler plate assertions of privilege will not suffice to assert a privilege, however failure to produce a privilege log within the time line required to respond to the request for production does not waive the privilege. Burlington Northern & Santa Fe Ry. Co., 408 F.3d at 1149. Additionally, the District Court has wide latitude in controlling discovery. In re State of Arizona, 528 F.3d 652, 655 (9th Cir. 2008); Burlington Northern, 408 F.3d at 1147. While Plaintiff states that the documents requested are "clearly not privileged," the Court is mindful of the fact that some of the documents responsive to this request may in fact contain information that, if turned over to an inmate, could seriously jeopardize the safety and security of both inmates and personnel within the institution. Not wanting any untoward consequences to result from procedural ineptitude and, realizing the shared interests that arise since Defendants are CDCR employees, CDCR and Defendants are ordered to work together to locate documents responsive to Plaintiff's request. They shall redact any confidential information. Plaintiff's request is vague and over broad as he fails to specify a relevant time period. Defendants are ordered to produce any responsive documents that were in effect in February 2007, within thirty days.

If CDCR and/or Defendants feel that documents responsive to this request exist which contain confidential and/or privileged information that cannot be adequately redacted, they shall submit a privilege log, complying with all requirements discussed herein delineating any such documents for consideration by the Court within forty-five (45) days of the date of this order. The Court will subsequently advise all concerned whether further information is required, whether documents should be submitted for an in camera review, or whether such documents should be produced directly to Plaintiff.

Rule 26 (b)(5)(A) provides that when otherwise discoverable information is withheld under the rules on claims that it is privileged, any such claim shall be expressly made and shall describe the nature of the documents, communications, or things not produced or disclosed, in a manner that will enable assessment of the applicability of the privilege or protection without revealing the privileged or protected information itself. In order to assist a court in determining a claim of privilege, a detailed privilege log may be required in conjunction with evidentiary submissions to fill any factual gaps. United States v. Construction Products Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996), cert. denied, 519 U.S. 927 (1996); see also, Allen v. Woodford, 2007 WL 309485, *4 (E.D. Cal. 2007), recon. denied, 2007 WL 841696. With respect to each document as to which a privilege is claimed, the person claiming the privilege should include in the privilege log the document's general nature and description, including its date, the identity and position of the author, and the identity and position of all addressees and recipients; the present location of the document; and the specific reasons it was withheld, including the privilege invoked and the grounds therefor. Allen (citingConstruction Products, 73 F.3d at 473-74, and In re Grand Jury Investigation, 974 F.2d 1068, 1071 (9th Cir.1992)).

A detailed privilege log will allow a case-specific and fact-specific balancing of the interests of law enforcement, privacy interests of police officers or citizens, interests of civil rights plaintiffs, policies that inform the laws, and the needs of the judicial process. Kelly v. City of San Jose, 114 F.R.D. 653, 667-69 (N.D. Cal. 1987). The privilege log also must: (1) show that the agency generated or collected the information and maintained its confidentiality; (2) show that the declarant reviewed the material personally; (3) identify a specific governmental or privacy interest that would be threatened by disclosure to Plaintiff; (4) describe how disclosure, subject to a carefully crafted protective order, would create a substantial risk of harm to significant governmental or privacy interests; and (5) assess the extent of the harm that would result from disclosure. Id. at 670. It is helpful if the agency can describe alternative means, if any exist, for the plaintiff to acquire the information or its equivalent from other sources. Id.

4. Request for Production No. 4

Plaintiff's Request for Production No. 4 states:

All unit 114 orders memos related to plaintiff made from February 28, 2007 through March 28, 2007, by prison officials at SATF/ASU.

Defendants' state the same objection as that stated in Request for Production No. 1. Plaintiff's clarification of the request for production states:

The "one fourteens written by ASU officers from February 28, 2007 through Mar. 28, 07.

Defendants' objection states:

Objection. Defendants object to this request on the grounds that it is overly broad, and vague and ambiguous as to which "order memos" are sought. Without waiving these objections, defendants respond as follows: Defendants provide the relevant portions of Plaintiff's Central File that are not privileged, confidential or otherwise objectionable in response to plaintiff's request.

Plaintiff's Argument: Plaintiff states that "114's" are daily notations and reports made by defendants of every inmate within their custody. These are not included in his central file, but would be kept at SATF. The request is not overly broad as he is only requesting the documents for the days that he was extracted from his cell on February 28, 2007, and for the ten days afterward he was deprived of life's basic necessities. These documents will establish that Defendant Reynoso knew that Plaintiff was left in the chemical agent for ten days. Additionally, it will allow Plaintiff to add an additional claim for deliberate indifference to his medical needs because Plaintiff discovered that medical defendants were to check on Plaintiff every fifteen minutes and none of them bothered to check on Plaintiff or give him treatment for his medical condition.*fn3

Ruling: These documents appear to be relevant and reasonably calculated to lead to the discovery of admissible evidence. However, Plaintiff's request is overly broad as it goes beyond the time of the alleged deprivations contained in the complaint. Accordingly, the Court will narrow the request. Within thirty days Defendants are ordered to produce any responsive documents, relating to Plaintiff, created from February 28, 2007 to March 9, 2007.

5. Request for Production No. 5

Plaintiff's Request for Production No. 5 states:

The names and addresses of all inmates & staff who have knowledge of the cell extraction of plaintiff et al., on February 28, 2007.

Defendants' state the same objections as that stated in Request for Production No. 1. Defendants' second objection states:

Objection. Defendants object to this request on the grounds that it is overly broad, lacks relevance as to the extractions of other inmates, and is vague and ambiguous as to the unit referred to. Without waiving any of these objections, defendants responds [sic] as follows: Defendants provide the Crime/Incident Report (Form 837) for the February 28, 2007 cell extraction.

Plaintiff's argument: Plaintiff argues that the information is relevant and Defendants' have redacted the names of witnesses on the incident reports.

Ruling: Plaintiff has not requested a document, and Defendants do not have to create responsive documents, thus their response is sufficient. To the extent that Plaintiff is complaining that Defendants redacted the names and contact information in responsive documents, it is beyond the scope of this specific request for production. Plaintiff's request for additional production is DENIED.

6. Request for Production No. 6

Plaintiff's Request for Production No. 6 states:

Any and all documents that peptain [sic] to and or refer to why inmates decided refuse [sic] to relinquish their food trays.

Defendants' state the same objection as that stated in Request for Production No. 1. Plaintiff's clarification of the request for production states:

All statements made to Reynoso and Hacker during their investigation into the cell extraction.

Defendants' objection states:

Objection. Defendants object to this request on the grounds that it is overly broad, lacks relevance as to the extractions of other inmates, and is vague and ambiguous as to the unit and date referred to. Defendants also object that the information may violate third party privacy rights. Without waiving any of these objections, defendants responds [sic] as follows: Defendants provide the Crime/Incident Report (Form 837) for February 28, 2007 cell extraction.

Plaintiff's argument: Plaintiff argues that the information is not available to him, nor have Defendants identified a federal privilege that would apply. The reports requested will show that Defendants did not act in response to a legitimate security threat, but that inmates withheld their trays in response to abuses by Defendants and Defendants responded maliciously to cause harm.

Ruling: Plaintiff's argument as to why other inmates withheld their trays is irrelevant to Plaintiff's claims that he was pepper sprayed during a cell extraction and Defendants failed to decontaminate him and deprived him of necessities of life. The reason for the actions of other inmates is irrelevant to Plaintiff's claims that are proceeding here and not reasonably calculated to lead to the discovery of admissible evidence. Accordingly, Plaintiff's request for additional production in response to this request is DENIED.

7. Request for Production No. 7

Plaintiff's Request for Production No. 7 states:

The video reflecting the cell extraction of any and all inmates at SATF on February 28, 2007.

Defendants' state the same objection as that stated in Request for Production No. 1. Plaintiff's clarification of the request for production states:

The video of the cell extraction.

Defendants' objection states:

Objection. Defendants object to this request on the grounds that it is overly broad, lacks relevance as to the extractions of other inmates, and is vague and ambiguous as to the unit and prison referred to. Defendants also object that the information requested may violate third party privacy rights. Without waiving any of these objections, defendants responds [sic] as follows: Defendants will make arrangements for plaintiff to view the video of his cell extraction from February 28, 2007.

Plaintiff's argument: Plaintiff argues that Defendants have failed to provide him with an opportunity to view the video tape of the cell extraction. The video of all inmate cell extractions is relevant to show that no inmate was attempting to escape, trying to start a riot, or harming anyone, therefore, the use of pepper spray was unlawful. Additionally, a review of all inmate videos will show that all inmates were pepper sprayed, returned to contaminated cells, and life's basic necessities were removed from the cell's of all inmates. This is relevant to show that since similar situated inmates were subject to these conditions, Plaintiff was also.

Ruling: The Court fails to see how the video of other inmates being extracted from their cells will lead to admissible evidence in this action. While Plaintiff claims that the video will show that no inmate was attempting to escape, start a riot, or harm anyone, such conduct is not required for correctional officers to use force to restore order. The parties appear to agree that inmates were violating the rules as a protest and the cell extractions were in response to the rule violations. Whether Plaintiff's extraction was done with excessive force is irrelevant to the conduct of other inmates. Defendants have agreed to make arrangements for Plaintiff to view the video of his cell extraction, however Plaintiff states that he has not been given the opportunity to view the video. The Court will PARTIALLY GRANT Plaintiff's request, and, if Plaintiff has not been provided with an opportunity to view the video, then Defendants are ordered to arrange for Plaintiff to view the video of his cell extraction within thirty days.

Additionally, Plaintiff requests that the Court review the video in camera to establish that Defendants have engaged in a pattern of perjury and cover ups because in their response to Plaintiff's requests for admissions Defendants denied that no inmate had a weapon, no threats were made against staff, other inmates or property. The Court fails to see how a review of the video would establish what occurred prior to the cell extractions that could be relevant to the issue of whether weapons were present or threats were made. The Court declines to find that Defendants engaged in misconduct by the denial of the request for admission and Plaintiff's request for in camera review of the video is DENIED.

8. Request for Production No. 10*fn4

Plaintiff's Request for Production No. 10 states:

Any and all documents that refer to or pertain to the bases [sic] for the decision not to provide plaintiff any changes in clothing, hygine [sic] supplies, a mattress, bedding, shoes, and sanitation supplies immediately after the cell extraction.

Defendants' state the same objection as that stated in Request for Production No. 1. Plaintiff's clarification of the request for production states:

The memorandum and dirrective [sic] order issued by Huchins and Reynoso, to not provide me with any clothing, hygiene supplies, a mattress, bedding, shoes, and sanitation supplies immediately after the extraction. Defendants' second objection states:

Objection. Defendants object to this request on the grounds that it is overly broad, lacks relevance as to post-extraction procedures, is vague and ambiguous as to the date and location referred to, and assumes facts. Without waiving any of these objections, defendants responds [sic] as follows: Defendants provide the Crime/Incident Report (Form 837) for the February 28, 2007 cell extraction. Plaintiff's central file documents are equally available.

Plaintiff's argument: Plaintiff argues that the request is not over broad and is relevant to his claims in this action that he was deprived of life's basic necessities for ten days and forced to live in a contaminated cell.

Ruling: Plaintiff's request is vague in that he fails to state relevant dates for the documents he is requesting. However, the documents requested would be relevant to Plaintiff's claims that he was denied necessities in violation of the Eighth Amendment. Accordingly, the Court will modify Plaintiff's request. Within thirty days Defendants are to provide any responsive documents on the decision to withhold items from Plaintiff for the period from February 28, 2007 to March 9, 2007.

9. Request for Production No. 11

Plaintiff's Request for Production No. 11 states:

Any and all documents that pertain to and/or refer to the bases [sic] or decision not to clean or decontaminate plaintiffs [sic] cell before placing him back into it, [sic] after his cell extraction.

Defendants' state the same objection as that stated in Request for Production No. 1. Plaintiff's clarification of the request for production states:

A copy of the memorandum/directive issued by Reynoso, Hutchins, Hacker and Robberson, [sic] on Feb. 28, 2007, ordering that defendants put me back into the cell without decontaminating it.

Defendants' second objection states:

Objection. Defendants object to this request on the grounds that it is overly broad, irrelevant as to post-extraction procedures, is vague and ambiguous as to the date and location, and assumes facts. Without waiving any of these objections, defendants responds [sic] as follows:

Defendants provide the Crime/Incident Report (Form 837) for the February 28, 2007 cell extraction. Plaintiff's central file documents are equally available.

Plaintiff's argument: Plaintiff argues that the request is not vague or over broad and the documents are not equally accessible to him. The request was specific and asked for the orders, directives, or memorandums issued by Defendants on February 28, 2007. This is relevant to his claim of deliberate indifference and supervisor liability.

Ruling: Plaintiff's complaint is not proceeding on claims of supervisor liability. However, the documents Plaintiff is requesting are relevant to the claim that Defendants were deliberately indifferent by placing and leaving him in a contaminated cell. Plaintiff did correct the deficiencies of his initial request and Defendants are ordered to produce any responsive documents within thirty days.

10. Request for Production No. 12

Plaintiff's Request for Production No. 12 states:

Any and all documents that pertain to, refer to and describe,*fn5 the exact date and time (after the cell extraction of plaintiff) that he first received a blanket, a towel, a mattress, sheets, socks, soap, toothpaste, cleaning supplies, a shirt, and change of underwear, et seq . . .[sic]

Defendants' state the same objection as that stated in Request for Production No. 1. Plaintiff's clarification of the request for production states:

A copy of the document that Defendant Reynoso taped to my cell door on Feb. 29, 2007, (where she would log what items were given to me after the extraction, on a daily basis).

Defendants' second objection states:

Objection. Defendants object to this request on the grounds that it is overly broad, irrelevant as to post-extraction procedures, is vague and ambiguous as to the date and location, and assumes facts. Without waiving any of these objections, defendants responds [sic] as follows: Defendants provide the Crime/Incident Report (Form 837) for the February 28, 2007 cell extraction. Plaintiff's central file documents are equally available. discoverable [sic] by this request, to the extent that it is understood by defendants, is equally available to the plaintiff. response [sic] to plaintiff's request.

Plaintiff's argument: Plaintiff made it clear that he was requesting the document which was taped to his door from February 29, 2007 through March 9, 2007 by Defendant Reynoso, which logged which items were returned to Plaintiff each day. This is relevant because it shows what items he was deprived of and will establish that Defendants responses in the requests for admissions were false.

Ruling: This document is relevant to Plaintiff's claim that he was deprived of necessities and reasonably calculated to lead to the discovery of admissible evidence. Defendants are ordered to produce responsive documents within thirty days.

11. Request for Production No. 13

Plaintiff's Request for Production No. 13 states:

Any and all documents that describe any and all items which were removed from plaintiff's cell after the cell extraction in question.

Defendants' state the same objection as that stated in Request for Production No. 1. Plaintiff's clarification of the request for production states:

An inventory of sheet of all items that were removed from my cell after the cell extraction.

Defendants' second objection states:

Objection. Defendants object to this request on the grounds that it is overly broad, irrelevant as to post-extraction procedures, is vague and ambiguous as to the date and location, and assumes facts. Without waiving any of these objections, defendants responds [sic] as follows: Defendants provide the Crime/Incident Report (Form 837) for the February 28, 2007 cell extraction. Plaintiff's central file documents are equally available.

Plaintiff's argument: Plaintiff argues that Defendants knew he was requesting the inventory sheet listing items that were removed from his cell on February 28, 2007. This is not contained in his central file and, therefore, not accessible to him. This is relevant to show what items were taken from Plaintiff's cell and the conditions he was forced to live in during the relevant time period after the extraction.

Ruling: The document requested is relevant to Plaintiff's claims. Defendants are ordered to produce responsive documents within thirty days.

12. Request for Production No. 14

Plaintiff's Request for Production No. 14 states:

Any and all documents that refer to or pertain to who made the decision to not order and or clean decontaminate [sic] plaintiffs [sic] cell, and who made the decision to deprive plaintiff of his hygiene items, clothing, bedding, mattress, cleaning supplies.

Defendants' state the same objection as that stated in Request for Production No. 1. Plaintiff's clarification of the request for production states:

A copy of the memorandum/directive identifying the names of the officers who ordered that my cell not be decontaminated and who ordered that I be deprived of lifes [sic] basic necessities.

Defendants' second objection states:

Objection. Defendants object to this request on the grounds that it is overly broad, irrelevant as to post-extraction procedures, is vague and ambiguous as to the date and location, and assumes facts. Without waiving any of these objections, defendants responds [sic] as follows: Defendants provide the Crime/Incident Report (Form 837) for the February 28, 2007 cell extraction. Plaintiff's central file documents are equally available.

Plaintiff's argument: Plaintiff argues that he made it clear that he is requesting a copy of the document that identifies the officers who ordered Plaintiff's cell not be decontaminated and his property not be returned to him. These documents are relevant to show that Defendants were deliberately indifferent by placing Plaintiff in a contaminated cell and depriving him of a way to decontaminate himself.

Ruling: The documents Plaintiff is requesting would be relevant to show that Defendants were deliberately indifferent, however Plaintiff's request is over broad in that he failed to specify a time period for the request. Accordingly, within thirty days Defendants are ordered to produce any responsive documents that resulted in Plaintiff's cell not be decontaminated on February 28, 2007, and his property being withheld from February 28, 2007 through March 10, 2007.

13. Request for Production No. 15

Plaintiff's Request for Production No. 15 states:

Any and all documents that describe, refer to and or pertain to the duty (job obligation, etc.) of the decontamination team and correctional officers to clean/decontaminate a cell once a chemical agent such as the "X-10 BRD," has been shot into the cell for extraction purposes.

Defendants' state the same objection as that stated in Request for Production No. 1. Plaintiff's clarification of the request for production states:

Copies of the DOM, OP, disturbance control plan, and work assignment sheets that identifies and describes the decontamination team and prison staffs [sic] obligation to decontaminate a cell after chemicals are shot in there.

Defendants' second objection states:

Objection. Defendants object to this request on the grounds that it is overly broad, irrelevant as to post-extraction procedures, is vague and ambiguous as to the date and location. Without waiving any of these objections, defendants responds [sic] as follows: Correctional staff post orders and duty statements do not refer to specific cell extraction and post-extraction procedures. Defendant has requested any responsive documents and will provide all non-privileged documents upon receipt.

Plaintiff's argument: While Defendants assert that they will provide these documents at a later date, they have failed to produce responsive documents. The items requested are relevant to show that Defendants did not act in accordance with prison policy and are not entitled to qualified immunity. These documents will show that Defendants were on notice that their conduct was unlawful.

Ruling: The documents requested are relevant to Plaintiff's claims that his cell was not decontaminated. However, Plaintiff's request is vague in that he fails to identify a time period for the documents requested. Accordingly, Plaintiff's request will be modified to any documents responsive to the request that were in effect in February and March 2007. Defendants are ordered to produce any responsive documents to the modified request within thirty days. If CDCR and/or Defendants feel that documents responsive to this request exist which contain confidential and/or privileged information that cannot be adequately redacted, they shall submit a privilege log, complying with all requirements discussed herein delineating any such documents for consideration by the Court within forty-five (45) days of the date of this order.

14. Request for Production No. 16

Plaintiff's Request for Production No. 16 states:

Any and all documents (policies in the prisons [sic] "Operational Manual [sic]) that describe, refer to and or pertain to the duty (job obligation etc.) of correctional officers (at SATF) to provide each inmate bedding, mattress, towels, changes in clothing, clothing, hygine [sic] items and cleaning supplies, at any time during their incarceration including but not limited to when they have been cell extracted for any reason.

Defendants' state the same objection as that stated in Request for Production No. 1. Plaintiff's clarification of the request for production states:

A copy of the "DOM," and "SATFS" "OP" related to (1) what items of bedding, mattress, towels, [how many changes in] clothing, sanitation, hygiene and cleaning supplies are ASU inmates at SATF entitled to (2) whose obligation is it to provide these items and (3) what items (bedding, mattress, towels, changes in clothing, sanitation, hygene[sic]) are provided to inmates who are cell extracted.

Defendants' second objection states:

Objection. Defendants object to this request on the grounds that it is overly broad, irrelevant as to post-extraction procedures, is vague and ambiguous as to the date and location. Without waiving any of these objections, defendants responds [sic] as follows: Correctional staff post orders and duty statements do not refer to specific cell extraction and post-extraction procedures. Defendant has requested any responsive documents and will provide all non-privileged documents upon receipt. become [sic] available, through the time of trial.

Plaintiff's argument: Defendants are aware of the documents that Plaintiff is requesting and their assertion that they will provide the items at trial denies Plaintiff of his right to follow up on the discovery process. The documents are relevant to show that Defendants violated policy and are not entitled to qualified immunity.

Ruling: The documents requested are relevant to Plaintiff's claims that he was deprived of necessities in violation of the Eighth Amendment. However, Plaintiff has failed to state a relevant time period. The Court will modify the request to any responsive documents that were in effect in February and March 2007. Defendants are ordered to produce any documents responsive to the request as modified within thirty days. If CDCR and/or Defendants feel that documents responsive to this request exist which contain confidential and/or privileged information that cannot be adequately redacted, they shall submit a privilege log, complying with all requirements discussed herein delineating any such documents for consideration by the Court within forty-five (45) days of the date of this order.

15. Request for Production No. 17

Plaintiff's Request for Production No. 17 states:

Any and all documents that describe, refer to and or pertain to court orders, policies, directives which reflect that officers should not cell extract or use high powered chemical agents to retrieve plastic food trays.

Defendants' state the same objection as that stated in Request for Production No. 1. Plaintiff's clarification of the request for production states:

A copy of relevant court orders, pages within "DOM," the "SATF OP" and the "disturbance control plan" which preclude the use of high powered chemical agents to retreive [sic] plastic trays.

Defendants' second objection states:

Objection. Defendants object to this request on the grounds that it is overly broad, compound, vague and ambiguous as to the prison and time period referred to, and may seek confidential privileged documents. Without waiving any of these objections, defendants responds [sic] as follows: There are no specific responsive documents.

Plaintiff's argument: Defendants know that Plaintiff is seeking documents that preclude the use of high powered chemical agents to retrieve plastic trays. Even if such documents do not exist Defendants know that Plaintiff's request should be liberally construed as a request for "orders, policies or directives establishing when is it inappropriate to use high powered chemical agents." This is relevant to rebut the claim that Defendants are entitled to qualified immunity.

Ruling: Defendants do not have to "liberally construe" Plaintiff's discovery requests and supply documents that Plaintiff has failed to request. It is Plaintiff's responsibility to adequately identify the documents to be produced. Defendants have responded that there are no responsive documents and Plaintiff has failed to show that documents responsive to this request do exist. Plaintiff's motion for additional production is DENIED.

16. Request for Production No. 18

Plaintiff's Request for Production No. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

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