The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is proceeding without counsel and in forma pauperis. Plaintiff's renewed motion to compel discovery is before the court. Defendants filed an untimely opposition and plaintiff filed a reply. The court finds plaintiff's motion is partially granted.
This action is proceeding on plaintiff's third amended complaint against defendants Matthew Cate, Director of Adult Institution Division, and M. Knowles, Warden of California Medical Facility ("CMF"). (Dkt. No. 31.) Plaintiff alleges that in 2007, while plaintiff was housed at CMF, prison officials ignored CMF psychologist Dr. McDogold's December 27, 2007 recommendation that plaintiff be housed near his family in Southern California, and transferred plaintiff to California Men's Colony ("CMC"). On February 29, 2008, plaintiff was endorsed for transfer to CMC. (Dkt. No. 31 at 8.) It appears plaintiff was transferred to CMC some time between May 22, 2008, and July 22, 2008. (Dkt. No. 31 at 9.)
In his reply, plaintiff contends that the court must disregard defendants' opposition as it was untimely filed. In an order signed on August 5, 2011, and filed on August 8, 2011, defendants were ordered to respond to the motion to compel within twenty-one days. (Dkt. No. 60.) Thus, defendants' opposition was due at least by August 29, 2011. However, defendants' opposition was signed on August 31, 2011, and filed and served on September 1, 2011. (Dkt. No. 62.) Because defendants' opposition was untimely filed, the court will disregard the opposition. The court turns now to the merits of plaintiff's motion to compel.
I. Motion to Compel - Interrogatories and Requests for Admissions Plaintiff's motion to compel further responses to interrogatories or requests for admissions must be denied because plaintiff failed to provide copies of defendants' responses to interrogatories or requests for admissions. Although plaintiff provided copies of the propounded interrogatories, no copy of the requests for admissions was provided. The exhibits appended to plaintiff's motion jump from exhibit B to exhibit H. The court is unable to evaluate defendants' discovery responses without copies of the responses provided. Thus, plaintiff's motion to compel further responses to the interrogatories or the requests for admissions is denied.
II. Motion to Compel - Request for Production of Documents On August 8, 2011, the court granted defendants' motion for protective order, and relieved defendants from providing documents responsive to requests 10-13, 15-16, 18-19, 22-27, and 36, as well as requests 20-21 and 35. (Dkt. No. 60 at 3.) Therefore, plaintiff's motion to compel further production in response to these requests is denied.
Plaintiff seeks further production of documents responsive to requests 3 through 8. Each of these requests sought daily or monthly reports addressing housing and bed vacancies for the Richard J. Donovan Correctional Facility ("RJD") for the periods of March 2008 through December 2008. Defendants objected that the requests are overbroad, as plaintiff seeks information for all housing units at RJD, and is not limited to the housing unit that would accommodate plaintiff. Defendants also objected that the request is overbroad as to time, and seeks documents which may contain confidential information or that the disclosure of which would violate other inmates' right to privacy. Finally, defendants contend that after a diligent search and reasonable inquiry, no document currently exists that is responsive to each request.
Plaintiff argues that the requested documents do exist as the California Department of Corrections and Rehabilitation ("CDCR") is required to generate this information under regulations cited in the requests. Plaintiff contends that the number of inmates housed at a prison is public information, and information relating the inmate count of a particular prison or unit therein presents no danger to prison officials or inmates.
To the extent defendants contend plaintiff could not be transferred to RJD because there was insufficient bed space, plaintiff is entitled to discover documents from RJD that set forth the housing counts for the time frame at issue here. This court is aware, pursuant to the class action lawsuit, Coleman v. Wilson, 2:90-cv-0520 LKK JFM, that prison officials track inmate population and bed capacity, particularly for those inmates with mental health needs. For example, see id., Dkt. No. 3641 at 28-32. However, it is unclear in what form these numbers are tracked or documented.
In each request, plaintiff limited the time frame to March through December 2008. Thus, defendants' objection that the time frame is overbroad is overruled. However, plaintiff does not explain why he sought documents for that time period. Dr. McDogold recommended plaintiff's transfer to a correctional facility close to plaintiff's family in Southern California on December 27, 2007, and plaintiff's administrative appeal was denied at the Director's Level of Review on October 7, 2008. Thus, plaintiff is entitled to obtain documents from December 28, 2007, through October 7, 2008. On the other hand, because plaintiff is part of the Enhanced Outpatient Program ("EOP"), plaintiff may only be housed in units that provide an EOP level of care. Therefore, defendants' objection that plaintiff is not entitled to inmate counts for all housing units at RJD is sustained. Moreover, requiring production of daily counts for this time frame would be overly burdensome.
Therefore, plaintiff's motion to compel further production in response to requests 3 through 8 is partially granted. Defendants shall provide RJD documents from December 28, 2007, through October 7, 2008, that provide monthly inmate bed capacity and inmate counts for housing units at RJD that offer an EOP level of care, or, in the event such records are not maintained by housing unit, monthly total EOP bed capacity and EOP inmate counts for total EOP beds at RJD. If these documents contain inmate names or other identifying information, defendants may redact that information so long as the counts for both EOP bed capacity and EOP beds filled are provided. If these documents are maintained for time frames other than monthly, defendants shall in good faith endeavor to provide plaintiff the documents most responsive to plaintiff's need for this information. If defendants maintain that such documents do not exist, defendants shall provide a declaration from an appropriate prison official at RJD confirming such documents do not exist.*fn1
Request No. 9 seeks copies of plaintiff's mental health treatment group appointments from April 2008, through January 2011, while plaintiff was housed at CMC. Defendants objected that plaintiff's medical records are equally accessible to plaintiff, citing Cal. Code Regs. tit. 15, § 3370(c), but produced a copy of plaintiff's scheduled mental health treatment appointments from April 8, 2008, through January 31, 2011. (Dkt. No. 57 at 39.) Plaintiff contends that the documents produced are incomplete and contain contradictions, and alleges that they may have been falsified. (Dkt. No. 57 at 9.)
Defendants' objection that plaintiff has access to his own medical records is sustained. No further production is required. If plaintiff has evidentiary disputes concerning documents provided, such disputes are more properly addressed at trial.
In Request No. 14, plaintiff sought all documents, reports, or correspondence by the Classification Services Unit or the Division of Correctional Health Care Services which contain, mention or discuss the consideration or evaluation of the December 27, 2007 mental health assessment of plaintiff by Dr. McDogold recommending that plaintiff be transferred to a correctional facility in southern California. (Dkt. No. 57 at 41.) In response to this request, defendants produced a copy of the Reception Center Do's and Don'ts for the week of March 17, 2008, and copies of ...