The opinion of the court was delivered by: Ruben B. Brooks United States Magistrate Judge
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL DISCLOSURE
AND COOPERATION IN DISCOVERY ) [ECF NO. 69]
Plaintiff Raynard Vallery, a California prisoner proceeding pro se and in forma pauperis, filed an action under 42 U.S.C. § 1983 [ECF Nos. 1, 5, 47], which now proceeds against named Defendants Bell, Bourland, Brown, Dee, and Stratton for First, Fourth, and Eighth Amendment violations.*fn1 The allegations in Vallery's Second Amended Complaint surround Correctional Officer Brown's purported sexual assault of Plaintiff at Calipatria State Prison ("Calipatria"), as well as the other prison officials' endorsement of officer Brown's misconduct. (See Second Am. Compl. 10-12, 14, ECF No. 47.)*fn2 Since Defendants Bell, Bourland, Brown, Dee, and Stratton filed an Answer [ECF No. 56], the parties have commenced discovery and have several disputes [ECF Nos. 67, 69, 81].
This Motion to Compel Disclosure and Cooperation in Discovery was filed nunc pro tunc to May 25, 2011 [ECF No. 69]. The Plaintiff seeks further responses to his requests for production of documents, requests for admissions, and interrogatories. (Mot. Compel 4, 15, 24, ECF No. 69.) Defendants' Opposition to Plaintiff's Motion to Compel Disclosure and Cooperation in Discovery was filed on July 19, 2011, along with the Declaration of John P. Walters and exhibits [ECF No. 86]. In addition to raising substantive objections, Defendants Bell, Bourland, Brown, Dee, and Stratton argue that the Motion should be denied because it is untimely, and it seeks responses to discovery that was untimely served. (See Opp'n Mot. Compel 2-8, ECF No. 86.) On August 26, 2011, Plaintiff's Reply to Defendants' Opposition to Motion to Compel was filed [ECF No. 94].
The Court finds the Motion to Compel suitable for resolution on the papers, pursuant to Civil Local Rule 7.1. See S.D. Cal. Civ. R. 7.1(d)(1). The Court has reviewed Vallery's Motion, the Defendants' Opposition, and Plaintiff's Reply. For the reasons stated below, Plaintiff's Motion to Compel Disclosure and Cooperation in Discovery is GRANTED in part and DENIED in part. // //
The allegations in the Second Amended Complaint surround events that occurred while Vallery was housed at Calipatria. (Second Am. Compl. 1, ECF No. 47.) The Plaintiff contends that on April 15 and 17, 2004, Correctional Officer Brown sexually assaulted Vallery by improperly searching him while Brown's superior, Correctional Sergeant Dee, observed. (Id. at 6-8, 12-13.)
Vallery argues that Defendant Brown violated the Fourth and Eighth Amendments when he improperly searched Plaintiff for sexual gratification. (Id. at 12.) Defendant Dee is alleged to have violated the Eighth Amendment because she was aware of Brown's misconduct but did nothing to prevent it. (Id.) The Plaintiff asserts that Warden Bourland, Correctional Lieutenant Stratton, and Appeals Coordinator Bell violated his Eighth Amendment rights by acting with deliberate indifference to the risk that Brown would assault Vallery. (See id. at 10-12, 14.) Finally, Plaintiff maintains that unnamed mailroom employees violated the First Amendment by preventing the delivery of Plaintiff's letter to the FBI. (Id. at 14.) The mailroom workers also violated the Eighth Amendment by their "actions which resulted from deliberate indifference." (Id.)
It is well established that a party may obtain discovery regarding any non-privileged matter that is relevant to any claim or defense. Fed. R. Civ. P. 26(b)(1). Relevant information need not be admissible at trial so long as the discovery appears to be reasonably calculated to lead to the discovery of admissible evidence. Id. Relevance is construed broadly to include any matter that bears on, or reasonably could lead to other matter that could bear on, any issue that may be in the case. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)) (footnote omitted). Rule 37 of the Federal Rules of Civil Procedure enables the propounding party to bring a motion to compel responses to discovery. Fed. R. Civ. P. 37(a)(3)(B). The party opposing discovery bears the burden of resisting disclosure. Miller v. Pancucci, 141 F.R.D. 292, 299 (C.D. Cal. 1992).
"In general, pro se representation does not excuse a party from complying with a court's orders and with the Federal Rules of Civil Procedure." Fingerhut Corp. v. Ackra Direct Mktg. Corp., 86 F.3d 852, 856-57 (8th Cir. 1996) (citing Jones v. Phipps, 39 F.3d 158, 163 (7th Cir. 1994); Anderson v. Home Ins. Co., 724 F.2d 82, 84 (8th Cir. 1983)). Above all, plaintiffs who choose to represent themselves must abide by the rules of the court in which they litigate. Carter v. Comm'r, 784 F.2d 1006, 1008-09 (9th Cir. 1986); see also Bias v. Moynihan, 508 F.3d 1212, 1223 (9th Cir. 2007) (discussing the pro se litigant's violation of local rules). "[W]hile pro se litigants may be entitled to some latitude when dealing with sophisticated legal issues, acknowledging their lack of formal training, there is no cause for extending this margin to straightforward procedural requirements that a layperson can comprehend as easily as a lawyer." Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir. 1991); Cone v. Rainbow Play Sys., No. CIV 06-4128, 2008 U.S. Dist. LEXIS 17489, at *4 (D.S.D. Mar. 5, 2008) (explaining that pro se litigants must follow procedural rules).
A. Requests for Production of Documents
A portion of the relief Vallery seeks in this Motion to Compel responses to his document requests duplicates the relief he sought his Motion for Order of Disclosure and In Camera Review. (Compare Mot. Compel 4-12, ECF No. 69, with Mot. Order Disclosure 1-2, ECF No. 67.) The Court issued a separate ruling on the requests for production of documents to which Vallery sought responses in his separate Motion for Order of Disclosure [ECF No. 102]. When analyzing this Motion to Compel, the Court will only consider the document requests that it has not already addressed. At issue in this Motion, then, are Vallery's requests for production of documents 32 and 33 in set one, and requests 2, 3, and 4 in set two.
1. Request for Production of Documents 32: Set One
Vallery asks the Defendants to produce "[t]he full names (first, middle, last) of each member of the Calipatria Prison mailroom in July of 2004." (Opp'n Mot. Compel Attach. #2 Ex. A, at 10, ECF No. 86.)*fn3 Defendants object that the request is improper because it asks them to create a list as opposed to produce documents already in existence. (Id.; see also Opp'n Mot. Compel 2, ECF No. 86.) In response, Vallery maintains that request 32 solicits already-generated records reflecting the names of the mailroom employees employed in July 2004 and does not require Defendants to create a list or answer an interrogatory. (Mot. Compel 12-13, ECF No. 69; Reply Mot. Compel 2, ECF No. 94.)
A party may serve on another party a request to produce any designated documents that are in the responding party's possession, custody, or control. Fed. R. Civ. P. 34(a)(1). Nonetheless, a party is not required to prepare new documents solely for their own production. Alexander v. FBI, 194 F.R.D. 305, 310 (D.C. Cir. 2000). "Therefore, Rule 34 only requires a party to produce documents that are already in existence." Id.
Defendants maintain that they must create a list of names of the Calipatria mailroom employees in order to respond to the document request. (See Opp'n Mot. Compel 2, ECF No. 86.) If there are no documents that identify individuals working in the Calipatria Prison mailroom in July of 2004, a request for production of documents is not the proper vehicle for obtaining the information. See Alexander, 194 F.R.D. at 310 (denying plaintiffs' request to compel a list of people whose background summaries were requested by the White House because there was no evidence that the Executive Office of the President possessed such a list); Goolsby v. Carrasco, No. 1:09-cv-01650 JLT(PC), 2011 U.S. Dist. LEXIS 71627, at *20-21 (E.D. Cal. July 5, 2011) (finding that a document request asking for the names of employees who supervised the prison cage yard is not a proper request under Federal Rule of Civil Procedure 34(a)); Robinson v. Adams, No. 1:08-cv-01380-AWI-SMS PC, 2011 U.S. Dist. LEXIS 60370, at *53 (E.D. Cal. May 27, 2011) (denying plaintiff's motion to compel responses to a document request seeking the names of prison employees working in building two during a certain time period because the request did not seek an identifiable document).
Defendants are correct that they are not required to create a list of employees in response to a request for documents. Nevertheless, to the extent that there are any documents in Defendants' custody, control, or possession that identify one or more individuals who worked in the Calipatria Prison mailroom in July of 2004, the documents should be produced. Otherwise, Vallery's Motion to Compel a response to request 32 is DENIED.
2. Request for Production of Documents 33: Set One
Next, the Plaintiff requests documents involving any state tort claims actions and § 1983 civil rights actions that have been filed against each Defendant. (Opp'n Mot. Compel Attach. #2 Ex. A, at 10, ECF No. 86.) The Defendants object because Plaintiff asks for public records that are equally available to him and because the request is overly broad. (Id.) Vallery limits the scope of request 33 to include only actions for conduct of the sort alleged in the Second Amended Complaint; Plaintiff narrowed this request on February 9, 2011, yet the Defendants ignore the modification altogether. (Mot. Compel 13, 35, 39, ECF No. 69.) He contends that he lacks access to the documents because he is indigent and incarcerated. (Id. at 13.) Also, Vallery represents that Defendants refuse to provide him with identifying information that would help him find such records. (Id.)
Despite Plaintiff's narrowing of the request to actions for conduct similar to that alleged in this lawsuit, the Defendants continue to argue that request 33 seeks irrelevant information because it seeks information about unrelated claims. (Opp'n Mot. Compel 2, ECF No. 86.) This objection is OVERRULED.
The Defendants further object that the request is overly broad because it seeks attorney notes, deposition transcripts, court files, and other documents. (Id.) Plaintiff clarifies the scope in his Reply, in which he seeks "deposition testimony, admissions, and interrogatory responses from Defendants, Plaintiff's and witnesses." (Reply Mot. Compel 2, ECF No. 94.) Defendants' overbreadth objection is OVERRULED for documents relating to discovery generated during litigation.
Defendants also assert that Plaintiff has equal access to the material sought because lawsuits are matters of public record. (Id.) "A court may refuse to order production of documents of public record that are equally accessible to all parties." 7 James Wm. Moore, et al., Moore's Federal Practice, § 34.12[b], at 34-53 (3d ed. 2011) (footnote omitted). "However, production from the adverse party may be ordered when it would be excessively burdensome . . . for the requesting party to obtain the documents from the public source rather than from the opposing party." Id. (footnote omitted).
Vallery expressly states that he has inadequate access because his custody prevents him from obtaining the records on his own, and Defendants do not challenge his contention. (Mot. Compel 13, ECF No. 69); see Lal v. Felker, No. CIV S-07-2060 GEB EFB P, 2010 U.S. Dist. LEXIS 21046, at *9-10 (E.D. Cal. Feb. 10, 2010) (granting plaintiff's motion to compel records contained in his central and medical files because defendants do not rebut plaintiff's assertion that he has inadequate access to the files). The Plaintiff argues that "Defendants refuse to disclose identifying information which might enable Plaintiff to obtain said court documents." (Mot. Compel 13, ECF No. 69.) There is contrary authority. See Robinson, 2011 U.S. Dist. LEXIS 60370, at *43-44 (denying pro se incarcerated plaintiff's motion to compel complaints and case numbers of lawsuits filed against defendants for the same conduct, and noting that plaintiff could retain someone to retrieve the records where the defendants were not in possession, custody, or control of responsive documents). If Defendants assert that they have documents that are protected from disclosure because of the attorney-client privilege, attorney work product doctrine, or court-imposed protective order, the Defendants shall compile a privilege log identifying those documents, the privilege claimed, and sufficient facts for the Court to determine the basis of the privilege claim. See Perry v. Schwarzenegger, 591 F.3d 1147, 1153 (9th Cir. 2010) (amended); Fed. R. Civ. P. 26(b)(5)(A)(ii).
Vallery's Motion to Compel production of documents in response to request 33 is GRANTED, except to the extent that non-privileged documents are not in Defendants' custody, possession, or control. For those items, Plaintiff should ...