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Perry Robert Avila v. Matthew Cate

October 17, 2011

PERRY ROBERT AVILA,
PLAINTIFF,
v.
MATTHEW CATE, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER DENYING PLAINTIFF'S MOTION TO COMPEL DEFENDANTS TO PRODUCE DOCUMENTS AND AUTHORIZING ISSUANCE OF SUBPOENAS DUCES TECUM (Doc. 35)

ORDER NOTIFYING PARTIES THAT SUBPOENAS DUCES TECUM WILL ISSUE AFTER FIFTEEN DAYS FROM THE DATE OF SERVICE OF THIS ORDER

I. Background

Plaintiff Perry Robert Avila, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on May 26, 2009. This action is proceeding against Defendants Meadors, Sullivan, Jones, Gonzalez, and Peterson for violation of the Equal Protection Clause of the Fourteenth Amendment.

On December 30, 2010, Plaintiff filed a motion to compel Defendants to further respond to his requests for the production of documents, 1 through 4. Plaintiff sought to compel responses to the following four requests for the production of documents:

Request 1: All documents that describe and refer to prison officials' decisions to place and retain California Correctional Institution, Facility 4A (CCI 4A) general population prisoners on lockdown or modified programs, including but not limited to all records of decisions reviewed, approved or disapproved by officials whose offices are located at the California Department of Corrections and Rehabilitation (CDCR) main offices at Sacramento, California, or any branch office of the CDCR.

Request 2: All documents that describe or refer to the CDCR and CCI 4A procedures for initiating and maintaining a lockdown or modified program, including but not limited to all documents which list the prison officials and offices charged with the responsibility of directly overseeing and participating in decisions to place and retain general population prisoners on lockdown or modified program.

Request 3: All completed documents entitled "Program Status Report."

Request 4: All documents that describe or refer to Men's Advisory Council (MAC) activity, including the Secretary's notes and minutes of the "Warden's Meeting(s)" and meeting with other prison officials for the purpose of discussing that prisoner population's concerns and complaints. (Doc. 20, Motion to Compel, p. 17.)

Defendants objected to requests 1 and 3 as overly broad and unduly burdensome because a time period was not specified, but notwithstanding those objections, Defendants responded to requests 1, 3, and 4 by stating that they had no responsive documents within their possession, custody, or control. Defendants responded to request 2 by producing select Title 15 regulations. Approximately one week later, Defendants served a supplemental response and produced eighty-three Program Status Reports (PSRs) dated January 1, 2007, to September 18, 2007. (Doc. 20, Motion to Compel p. 3, ¶5 & p. 7 n.3.)

In an order filed on March 24, 2011, the Court granted Plaintiff's motion to compel in part and ordered Defendants to serve supplemental responses to Plaintiff's requests, to more specifically address their objection on the ground that they lack possession, custody, or control of the documents. To that end, if no responsive documents exist, Defendants were directed to state that fact with sufficient specificity to allow the Court to determine whether Defendants made a reasonable inquiry and exercised due diligence. If responsive documents exist but Defendants claim lack of possession, control, or custody, they were directed to state that fact with sufficient specificity to allow the Court

(1) to conclude that the responses were made after a case-specific evaluation and (2) to evaluate the merit of that response.

Additionally, Plaintiff's requests were limited to documents relevant to the lockdown of Hispanic inmates on CCI-IV-A at issue in this action, and the time frame was limited to December 2006 through December 2007. Plaintiff was granted leave to file another motion to compel following his receipt of Defendants' supplemental responses, should one be necessary.

On July 5, 2011. Plaintiff filed another motion to compel further responses to his requests for the production of documents, 1 through 4. ...


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