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Michael Baker v. Perez

August 24, 2011

MICHAEL BAKER, PLAINTIFF,
v.
PEREZ, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

I. Introduction

Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the amended complaint filed April 5, 2010. Plaintiff alleges that he was repeatedly denied access to pain medication, as a result of which he suffered pain and symptoms of withdrawal.

On March 21, 2011, plaintiff filed a motion to compel alleging, in part, that prison officials refused to copy his 140 page motion to compel. On May 20, 2011, the undersigned ordered the Warden of Pleasant Valley State Prison to copy the motion to compel. The undersigned further ordered plaintiff to serve defendants within this motion within seven days thereafter, and ordered defendants to file a response within fourteen days.

On June 20, 2011, defendants filed their opposition to plaintiff's motion to compel. While plaintiff did not file a copy of his motion to compel with the court, defendants' opposition adequately describes the outstanding discovery disputes. Plaintiff did not file a reply to defendants' opposition. For the following reasons, plaintiff's motion is granted in part and denied in part.*fn1

II. Discussion

A. Request for Admissions, Sets One and Two

In request nos. 3-13 (set one) and nos. 1-2 (set two), plaintiff asks defendants to admit that various documents are what he claims them to be. For example, request no. 4 asks defendants to admit that attached 602HC, page 298-99 is a genuine copy of a document that requests copies of his medical file due to court action.

In their opposition to the motion to compel, defendants state that plaintiff sent defendants a large set of disorganized documents that were impossible to identify. Defendants state that they were unable to recognize many of the documents. Defendants state that because plaintiff did not organize the hundreds of pages of documents attached to the request for admissions, defendants could not admit their genuineness. Defendants also object that plaintiff failed to lay the foundation to establish the genuineness of the documents. Defendants state that it is unknown what these documents indicate or where they came from. Defendants also state that plaintiff has other means to verify the documents, such as by asking the custodian of records. Defendants observe that in the motion to compel, plaintiff concedes that he is asking the custodian to verify his records.

Defendants objections have merit. Defendants cannot be ordered to verify documents that they cannot identify. Similarly, defendants cannot be asked to verify documents when plaintiff has failed to lay the foundation for their genuineness. In addition, it appears that plaintiff is capable of verifying the documents on his own through other means. Accordingly, the motion to compel as to these requests is denied.

B. Request for Production of Documents, Set One

Request Nos. 1-5 Request nos. 1-5 sought various log books from 2008 and 2009. The log books contained records regarding the administrative segregation unit (request nos. 1, 2), receiving and release building (request no. 3), and log books regarding nurse and doctor schedules (request nos. 3, 4).

In their original responses, defendants stated that after a reasonable search and diligent inquiry, no documents responsive to the requests could be located. Defendants stated that if they gain possession, custody or control of these documents, they will supplement their answers. In their opposition to the motion to compel, defendants further state that they are medical personnel at High Desert State Prison ("HDSP"), so they do not have access to the log books for various buildings at HDSP. Defendants state that they asked HDSP for the requested log books, but HDSP has not been able to produce any of the logbooks at this time. Defendants state that log books are only kept for a couple of years and then they are moved to storage, over which defendants have no authority or access. Defendants state that logbooks are not stored electronically, as plaintiff argues.

The reach of Federal Rule of Civil Procedure 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., 181 F.R.D. 470, 472--73 (1998), 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).

As employees of the medical department, it is clear that defendants would not have "possession, custody or control" of stored records regarding administrative segregation and receiving and release. As the Chief Medical Officer, defendant Swingle is most likely to have access to the stored records regarding doctors and nurses schedules. However, defendants state that they requested these documents from HDSP and HDSP was unable to produce them. The court cannot order defendants to produce documents that they are unable to access. For these reasons, the motion to compel as to these requests for production of documents is denied.

Request Nos. 6-9

Request no. 6 sought all documents located in plaintiff's "114" file. Defendants responded that these documents are in plaintiff's central file, which is available for plaintiff's inspection. In the motion to compel, plaintiff argued that prison officials told him that they could not find these documents in his central file. In their opposition to the motion to compel, defendants state that plaintiff's central file is the only location where the "114" file would exist.

According to defendants, plaintiff's "114" file is in his central file. Plaintiff has been informed that the "114" file is not in his central file. Defendants are not obligated to conduct a search in order to determine where plaintiff's "114" file is located, assuming it exists. Accordingly, the motion to compel as to this request is denied.

Request no. 7 sought all documents regarding a hunger strike that occurred in the HDSP Z-Unit that began on February 28, 2009. Defendants responded that this request sought information not reasonably calculated to lead to the discovery of admissible evidence. Defendants also objected that most of the requested information was not within their possession, custody or control, although defendants produced to plaintiff the documents within their control.

Because defendants have produced to plaintiff all documents regarding the hunger strike within their possession, custody or control, the motion to compel as to this request is denied.

Request no. 8 sought all formal and informal written complaints against any defendant alleging any medical misconduct, failure to perform assigned duties, negligence, deliberate indifference, etc. that occurred prior to February 28, 2009. Request no. 9 sought the same information against "any CDCR HDSP Medical Personnel" from January 1, 2005, to the present.

Defendants objected that these requests were irrelevant, overbroad and may seek confidential information. These requests are clearly overbroad. Not every complaint made against every defendant or HDSP Medical Personnel during the time periods sought alleging medical misconduct is relevant to this action. Accordingly, the motion to compel as to these requests is denied.

Request no. 10 sought all documents regarding medication/distribution policies in effect at HDSP. In response, defendants initially produced several documents. Request no. 11 sought all documents regarding policies concerning inmates receiving medication when they are transferred. In response, defendants initially informed plaintiff that no documents responsive to the request could be located. Defendants stated that if they gain possession of responsive documents, they would supplement their response. In the opposition to the motion to compel, defendants state that in addition to the documents originally provided, they have supplemented their answers with hundreds of pages of additional documents. Defendants state that they have nothing more to add.

It is unclear whether defendants supplemented their response to request no. 10 or no. 11, or both. In any event, plaintiff has not demonstrated that the documents produced did not adequately respond to this request. Regarding request no. 11, the court cannot order defendants to produce documents that do not exist. If defendants did supplement their response, plaintiff has not demonstrated how the supplemental response did not adequately respond to his request. Accordingly, the motion to compel as to these requests is denied.

Request No. 12 sought all documents regarding the training of medical personnel at HDSP, including policies concerning medication distribution and "man down" procedures. Defendants objected that this request was overbroad, vague and not reasonably calculated to lead to the discovery of admissible evidence. Request no. 12 is overbroad as not every policy regarding the training of medical personnel at HDSP is relevant to this action. Accordingly, the motion to compel as to this request is denied.

Request No. 13 sought all records stating how many Registered Nurses and Licensed Vocational Nurses were employed at HDSP from 2000 to the present. Request no. 14 sought all records stating how many inmates were housed at HDSP each year starting from 2000 to the present.

Defendants objected that request nos. 13 and 14 were overbroad and sought information not reasonably calculated to lead to the discovery of admissible evidence. Defendants state that plaintiff's complaint does not contain a claim alleging overcrowding or a lack of medical care due to overcrowding. Without waiving objection, defendants produced documents in response to request no. 14.

Plaintiff has not demonstrated that the documents defendants produced did not adequately respond to request no. 14. In addition, the undersigned has reviewed the complaint (Dkt. No. 1) and it does not appear that plaintiff is claiming that the alleged inadequate medical care occurred as a result of overcrowding. For this reason, the motion to compel as to these requests is denied.

Request no. 15 sought all documents regarding plaintiff's MAR activity sheets. Defendants responded, in part, that the request was overbroad in that not every MAR activity sheet was relevant to plaintiff's claims. Defendants additionally objected that the documents plaintiff requested were kept in his unit health record, which is available for plaintiff's inspection and copying. Because the request is overbroad and because plaintiff himself has access to the MAR activity sheets, which are contained in his unit health record, the motion to compel as to this request is denied.

Request no. 16 sought the California Department of Corrections and Rehabilitation ("CDCR") numbers and housing addresses of three inmates identified by name and two inmates identified by where they were housed in 2008. Defendants objected that this was not a request for production of documents but, rather, an interrogatory. Defendants also objected that they do not have possession, custody or control of any documents regarding these inmates' locations and CDCR numbers. Request no. 16 is denied as it is not a request for production of documents. The request is also denied because defendants state that they do not have access to the requested information.

Request no. 17 sought all documents regarding plaintiff's Institutional Classification Committee hearing from November 14, 2008, including the 128 G chrono. Without waiving objection, defendants responded that the requested documents were equally available to plaintiff in his central file. Because plaintiff has equal access to the documents requested, the motion to compel as to this request is denied.

Request No. 18 sought the CDCR numbers and current housing addresses of four inmates, identified by plaintiff only by where they were housed in January 2009. Defendants objected that request no. 18 was not a request for production of documents, but an interrogatory. Defendants also objected that the request is vague and overbroad, and that they should not be forced to subpoena the requested information on plaintiff's behalf. All of defendants' objections to this request have merit. Accordingly, the motion to compel as to request no. 18 is denied.

C. Interrogatories to Defendant Medina

At issue are interrogatories nos. 1, 2, 3, 12-16.

Interrogatory no. 1 asks defendant to "state all facts upon which you based your contention to not have the plaintiff treated for his serious medical need on November 10, 2008 when you chose to discontinue (D/C) plaintiff's mediation of Tramadol 50 mg 4 x day without seeing or talking to the plaintiff." Defendant objected that this interrogatory lacked foundation because defendant Medina did not contend that he did not have plaintiff treated for his serious medical need. Interrogatory no. 3 asks defendant to describe each document that supports his "contentions as answered above." Defendant objected that he does not contend that he did not have plaintiff treated for his serious medical need.

In the opposition to the motion to compel, defendant argues that interrogatories nos. 1 and 3 assume facts that are not in evidence and expect defendant to answer questions based on a scenario that did not occur. The undersigned agrees that these interrogatories are improperly framed for the reasons stated by defendant. Accordingly, the motion to compel is denied as to these requests.*fn2

Defendants' opposition to the motion to compel contains defendants' response to interrogatory no. 2 but inadvertently omits the interrogatory. Plaintiff did not file a reply to defendants' opposition addressing this issue. Because it is plaintiff's burden to demonstrate that defendant did not adequately answer this interrogatory, and he did not file a reply clarifying interrogatory no. 2 addressed to defendant Medina, the motion to compel as to this request is denied.

Interrogatory no. 12 asks defendant to describe any CDCR policy regarding prescription narcotics to inmates that differs from how he would treat a free citizen. Defendant objected that this interrogatory was irrelevant. Defendant argues that how narcotics are prescribed outside of prison is not relevant to whether defendant failed to treat plaintiff. The undersigned agrees that how non-prisoners are prescribed narcotics is not relevant to whether defendant acted with deliberate indifference to plaintiff's serious medical needs. Accordingly, the motion to compel as to this request is denied.

Interrogatory no. 13 asks defendant to detail why "various treatments such as physical therapy, pain management, acupuncture, etc. why surgery (in general) should remain the last possible choice." Defendant objected that the information sought was irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. Defendant also objected that the interrogatory was based on an incomplete hypothetical. The undersigned agrees that this interrogatory is based on an incomplete hypothetical. Accordingly, the motion to compel as to this request is denied.

Interrogatory no. 14 asks defendant to describe the effects a body goes through when "on a narcotic one year straight is suddenly stopped and why? Please use Tramadol as the reference for this interrogatory of 200 mg a day use." Defendant objected that this interrogatory was vague and irrelevant as to whether defendant refused to give plaintiff medical treatment. Defendant further objected that the interrogatory was an incomplete hypothetical and impossible for defendant to answer. Defendant also stated that Tramadol is not a narcotic, so it is not possible to describe the withdrawals that the body would go through when Tramadol is discontinued.

The undersigned agrees that defendant cannot answer this interrogatory based upon defendant's response that Tramadol is not a narcotic. As such, request no. 14 is an incomplete hypothetical. Accordingly, the motion to compel as to this request is denied.

Interrogatory no. 15 asks defendant to describe how many training courses he has taken about narcotic use and to state the year the course was taken. Defendant responded that he "received general physicians assistant training but does not recall how many, when, or which courses he was enrolled in. Medina did not take any training specifically on narcotics." In the opposition to the motion to compel, defendant states that he answered the interrogatory to the best of his ability. The undersigned finds ...


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