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Perry Robert Avila v. Matthew Cate

July 18, 2012

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 FOR SANCTIONS AGAINST DEFENDANTS UNDER RULE 37(B)(2) AND DENYING MOTION TO MODIFY SCHEDULING ORDER AS UNTIMELY (Doc. 42)

ORDER GRANTING PLAINTIFF THIRTY DAYS WITHIN WHICH TO FILE A RULE 45 MOTION TO COMPEL PRODUCTION BY CDCR AND CCI

I. Procedural History

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 March 24, 2011, the Court granted Plaintiff's motion to compel the production of documents (PODs) in part and ordered Defendants to serve supplemental responses to PODs 1-4, subject to the time and relevancy limitations discussed in the order. On October 18, 2011, the Court denied Plaintiff's subsequent motion to compel responses to PODs 1-4, finding that although Plaintiff was entitled to their production, Defendants did not have the documents in their possession, custody or control and the documents should be obtained via a subpoena duces tecum. Pursuant to Federal Rule of Civil Procedure 45(b)(1), the Court notified the parties that the subpoenas would issue fifteen days after service of the order.

On November 29, 2011, the Court ordered the United States Marshal to serve subpoenas duces tecum on the California Department of Corrections and Rehabilitation (CDCR) and the Custodian of Records at California Correctional Institution (CCI). The documents were to be produced to Plaintiff for inspection and copying on February 1, 2012, at 3:00 p.m. The subpoenas were returned executed, and on February 7, 2012, the Court ordered Plaintiff to file a status report regarding his ability to oppose Defendants' pending motion for summary judgment.

On February 27, 2012, Plaintiff filed a status report and a motion seeking the imposition of sanctions against Defendants under Federal Rule of Civil Procedure 37(b)(2) and to modify the scheduling order. On March 2, 2012, Plaintiff filed a supplement to his status report and motion. Defendants filed an opposition on March 13, 2012, and Plaintiff filed a reply on May 1, 2012.

II. Plaintiff's Motion for Rule 37 Sanctions

A. Plaintiff's Position

In response to the Court's order to submit a status report regarding his ability to oppose Defendants' motion for summary judgment, Plaintiff stated that the documents were not effectively served on him and Defendants' counsel was interfering with the Court's order by informing Plaintiff that some documents would not be produced and that those produced would be in redacted form for Plaintiff's viewing. Plaintiff seeks sanctions against Defendants under Federal Rule of Civil Procedure 37(b)(2).

In support of his motion, Plaintiff submits a memorandum dated February 2, 2012, from M. Kimbrell with the Litigation Department at CSP-Corcoran. (Doc. 42, Motion, Ex. 1.) The memo informed Plaintiff that Defendants' counsel had documents sent to Kimbrell from CCI and any time Plaintiff wanted to review the documents, he should send a request to the Litigation Office, which would then arrange for Plaintiff to review the documents in a secluded place. (Id.) Plaintiff apparently received the memo on February 6, 2012. (Id.) On February 7, 2012, Plaintiff submitted a request to view the documents and he was ducated to review the "incident log" on February 15, 2012. (Id., Exs. 2, 3.) After reviewing the documents, Plaintiff filed an inmate appeal requesting that he be provided with copies. (Id., Ex. 4.)

In his supplement, Plaintiff states that on February 24, 2012, he was given a written response to his subpoena by CCI, dated January 25, 2012. (Doc. 43, Supp., court record pp. 5-7.) CCI objected to each document request on the grounds that it is overly broad and unduly burdensome in that it does not seek the production of any specific, readily identifiable documents; and that it seeks the production of privileged and confidential documents which would jeopardize the safety and security of CCI and CDCR and which may violate the privacy rights of third parties. (Id., (quotation marks omitted).) With respect to requests 1, 3, and 4, CCI responded that, without waiving its objections, a reasonable and diligent search was made and the responsive documents were attached, with necessary redactions made. (Id. (quotation marks omitted).) With respect to request 2, CCI refused to produce any documents. (Id., p. 6.)

B. Defendants' Position

In their opposition, Defendants argue that Plaintiff's request is misplaced because they did not respond to the subpoenas. Rather, Defendants' counsel was retained for the limited purpose of representing CDCR relating to the subpoenas, and CDCR responded on January 26, 2012, objecting on various grounds and producing some documents notwithstanding the objections. (Doc. 44, Opp., Becker Dec., ¶¶4, 7.) CDCR redacted some information and kept the documents while allowing Plaintiff unfettered viewing access. (Id., ¶¶9, 12.) On February 21, 2012, however, Plaintiff's ...


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