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Daniel Steve Dixon v. S. Larosa

June 21, 2012


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


Plaintiff is a state prisoner proceeding in forma pauperis. Multiple motions are presently pending, which the court will address seriatim.

I. Background

By order filed December 23, 2011, defendants' motion to dismiss was granted as to all claims and all defendants, with the exception of plaintiff's allegation that defendant LaRosa retaliated against plaintiff for filing grievance MCSP-09-01626, by searching and allegedly "trashing" plaintiff's cell on September 16, 2009. (Dkt. Nos 73; 60 at 12-16.) The court dismissed plaintiff's allegations that Gamez, Keenan, Grzebyk, Crosby also retaliated against plaintiff based on plaintiff's failure to first exhaust administrative remedies. (Dkt. No. 60 at 21.) Thus, the sole issue remaining is whether defendant LaRosa's September 16, 2009 search of plaintiff's cell was performed in retaliation for plaintiff's grievance regarding double-celling.

II. Depositions by Written Questions

Plaintiff seeks leave to take depositions upon written questions of non-party witnesses Correctional Sergeant V. Gamez, and Correctional Officers J. Keenan, D. Grzebyk, and Crosby. Defendants oppose on procedural and substantive grounds. Plaintiff filed a reply.

Rule 31 of the Federal Rules of Civil Procedure sets forth the procedure for depositions by written questions. "A party may, by written questions, depose any person, including a party, without leave of court except as provided in Rule 31(a)(2). The deponent's attendance may be compelled by subpoena under Rule 45." Fed. R. Civ. P. 31(a). If a deponent*fn1 is "confined in prison," the party seeking the deposition must first seek leave of court. Fed. R. Civ. P. 31(a)(2).

The individuals plaintiff wishes to depose are not individuals "confined in prison." Therefore, plaintiff does not require leave of court to depose the named individuals by written questions. Plaintiff is permitted to conduct discovery while incarcerated, without leave of court, provided plaintiff complies with the Federal Rules of Civil Procedure, the local rules, and applicable prison regulations.

For example, the party noticing the deposition by written question is required to give questions to an "officer," as that term is defined in Rule 28(a) of the Federal Rules of Civil Procedure, who will then take the deponent's responses to the questions, certify them, and send them to the noticing party. Fed. R. Civ. P. 30(b)(5); Fed. R. Civ. P. 31(b). Plaintiff has not shown that he has arranged for such an officer to complete these tasks, and defendant has not indicated that he is willing to stipulate that plaintiff may depose the individuals in some manner not requiring the participation of an officer. Brown v. Williams, 2012 WL 1290801 (E.D. Cal. April 13, 2012); Harpool v. Beyer, 2012 WL 530916 (E.D. Cal. Feb. 17, 2012). ////

Moreover, because plaintiff seeks to depose non-parties, any depositions by written questions must be accompanied by a subpoena, pursuant to Rule 45 of the Federal Rules of Civil Procedure. Orr v. Valdez, 2011 WL 5239223 (D. Idaho Nov. 1, 2011). In addition, although the United States Marshal will serve the subpoena without charge, plaintiff must tender witness fees and mileage when the subpoena is served, as required by Rule 45(b)(1) of the Federal Rules of Civil Procedure, for each deponent.*fn2

Plaintiff has not demonstrated adherence to these procedures. Rather, plaintiff provided copies of documents filed in another civil action, Dixon v. Lavin, 2:03-cv-0262 DFL JFM P, in which plaintiff was given leave to conduct one deposition by written questions using the court as an intermediary. (Dkt. No. 78 at 8-12.) In Lavin, plaintiff sought leave to conduct eight depositions by written questions. (Id.) The court agreed to facilitate the parties' determination of allowable questions as to one deponent, and ultimately forwarded five questions to one deponent, to be answered and returned to the court. (Dkt. No. 78 at 11-13.) Such a procedure is not customary and will not be utilized by the court in this action. Plaintiff has not been granted leave to follow such a procedure and must comply with Rules 31 and 45 to take depositions by written questions.*fn3

For all of the above reasons, plaintiff's motion for leave to take depositions by written questions of non-parties (dkt. no. 76) is denied.

III. Motion to Compel Discovery

Plaintiff moves to compel further discovery responses from defendant LaRosa.

Defendant LaRosa filed an opposition; plaintiff did not file a reply. The court will address each discovery request seriatim.

A. Request for Production No. 1

Request: Provide job description on Defendant LaRosa between August 8, 2009 to December 31, 2009. If position changed, e.g., different building or location, provide additional information.

Response: Defendant objects to this request on the grounds that it is vague and ambiguous as to the term "job description," and it calls for documents that are not relevant or likely to lead to discovery of admissible evidence. Without waiving these objections, Defendant provides at Attachment 1, the Duty Statement for a Correctional Officer at Mule Creek State Prison.

(Dkt. No. 81 at 2.) Defendant's objections are overruled. Defendant LaRosa's job duties are arguably relevant to defendant LaRosa's actions in searching plaintiff's cell on September 16, 2009, and "job description" is a commonly-used phrase used to identify the requirements of a person's specific job. On the other hand, plaintiff did not make clear that he was seeking the specific job description for a correctional officer assigned to the job of building officer. Defendant provided plaintiff with a duty statement, which defendant states is a description of the responsibilities for a correctional officer at Mule Creek State Prison ("MCSP").

Plaintiff objects that the duty statement does not contain "specific duties, such as inmate cell searches." (Dkt. No. 79 at 1.) It is odd that the duty statement includes the duty "[i]nspect quarters of inmates for incoming and outgoing mail," yet fails to mention cell searches which are routinely performed for security purposes and to monitor the inmates' accumulation of property.

Accordingly, plaintiff's motion to compel further response to request number 1 is partially granted. Defendant LaRosa shall produce the job description or statement of job duties for the building officer for plaintiff's housing unit at MCSP in effect on September 16, 2009.

B. Request for Production No. 2

Request: List and/or name any and all inmate and/or non-inmate misconduct complaints filed against Defendant LaRosa as a departmental peace officer for the California Department of Corrections & Rehabilitation. Conclude, if any, the deposition of the complaint or complaints.

Response: Defendant objects to this request on the grounds that it [is] compound, it is vague as to time and as to the terms "inmate and/or non-inmate misconduct complaints," it is overly broad and burdensome, and is not relevant or likely to lead to discovery of admissible evidence.

Moreover, this request calls for information protected by the official information privilege, calls for confidential information protected by privacy rights of staff and inmates . . . . (Dkt. No. 81 at 3.)

Plaintiff argues that "[b]ased on alleged confidentiality, defendant is non-responsive." (Dkt. No. 79 at 2.) Plaintiff contends these complaints are relevant to show LaRosa's "motive and intent in dealing with" plaintiff. (Dkt. No. 79 at 5.) Plaintiff argues that defendant failed to demonstrate the burden of obtaining this discovery outweighs plaintiff's need for the discovery. (Dkt. No. 79 at 6.) In response, defendant reiterates his objections, ...

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