The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER DENYING PLAINTIFF'S DISCOVERY MOTIONS WITHOUT PREJUDICE AND DIRECTING DEFENDANTS TO RESPOND WITHIN TWENTY DAYS (ECF Nos. 38 & 54)
Plaintiff James Cato, Jr. ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff filed his initial complaint on May 5, 2010, alleging violations of his Eighth Amendment right to be free from excessive force. (ECF No. 1.) The Court screened Plaintiff's complaint, found that it stated a cognizable claim, and ordered service. (ECF Nos. 11, 14, & 15.) This action is proceeding against Defendants Avila, Kavanaugh, Dumont, Rodriguez, Patrick, England, Bueno, Patterson, and Johnson for excessive use of force in violation of the Eighth Amendment. (Id.)
On January 10, 2012, Plaintiff filed a "motion for court order," which appears to be a motion for a subpoena duces tecum to command the Director of California Department of Corrections ("CDCR") to produce various documents and take certain actions. (ECF No. 38.) On June 22, 2012, Plaintiff filed another motion for a subpoena duces tecum to command Connie Gibson, acting warden of Corcoran State Prison, to produce video-recordings. (ECF No. 54.) Defendants have not filed oppositions to either motion. Plaintiff's motions are now before the Court
I. MOTION FOR DOCUMENTS FROM CDCR
In his January 10, 2012, motion, Plaintiff asks that the Court 1) issue an order compelling the Director of CDCR to allow Plaintiff to correspond confidentially with inmate witnesses, 2) order the Director of CDCR to provide Plaintiff with the location of Plaintiff's inmate witnesses, 3) order the Director of CDCR to provide a way for Plaintiff to personally interview the inmate witnesses, 4) provide Plaintiff with a private investigator to interview the inmate witnesses, 5) order the Director of CDCR to allow Plaintiff to inspect his medical files, medical expert reports, and photographic imagery, 6) order the Director of CDCR to direct individuals at Corcoran State Prison to provide him with access to the law library at least twice a week, and 7) order the Director of CDCR to transport Plaintiff to the United States District Court in Fresno, California to use the Court's law library twice a week. (ECF No. 38.) Although Plaintiff uses the word "compel", it appears he is in fact simply asking that the Court authorize a subpoena duces tecum directing a non-party, the Director of CDCR, to produce information and take certain actions.
Subject to certain requirements set forth herein, Plaintiff may be entitled to the issuance of a subpoena commanding the production of documents from non-parties. Fed. R. Civ. P. 45. A subpoena can be used to command a person to do the following: attend and testify; produce designated documents, electronically stored information, or tangible things in that person's possession, custody, or control; or permit the inspection of premises. Id. However, the Court will consider granting such a request only if the documents sought from the non-party are discoverable, are not equally available to Plaintiff, and are not obtainable from Defendants through a request for production of documents. Fed. R. Civ. P. 45(c); Fed. R. Civ. P. 34.
Plaintiff is entitled to seek discovery of any non-privileged matter that is relevant to his claims. Fed. R. Civ. P. 26(b)(1). The discovery sought may include information that is not admissible as long as it appears reasonably calculated to lead to the discovery of admissible evidence. Id.
Plaintiff's remaining Eighth Amendment claim arise out of Defendants alleged assault on Plaintiff after he was rendered semi-unconscious. Such a claim implicates a use of force that was "unnecessary and wanton infliction of pain." (Jeffers v. Gomez, 267 F.3d 895, 910 (9th Cir. 2001), a malicious and sadistic use of force to cause harm (Hudson v. McMillian, 503 U.S. 1, 9 (1992); see also Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002). However, not "every malevolent touch by a prison guard gives rise to a federal cause of action." Hudson, 503 U.S. at 9. "The Eighth Amendment's prohibition of cruel and unusual punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind." Id. at 9-10 (internal quotations marks and citations omitted).
Whether force used by prison officials was excessive is determined by inquiring if the "force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson, 503 U.S. at 6-7. The Court must look at the need for application of force; the relationship between that need and the amount of force applied; the extent of the injury inflicted; the extent of the threat to the safety of staff and inmates as reasonably perceived by prison officials; and any efforts made to temper the severity of the response. See Whitley, 475 U.S. at 321. The absence of significant injury alone is not dispositive of a claim of excessive force. See Wilkens v. Gaddy, ___ U.S. ___, ___, 130 S. Ct. 1175, 1176-77 (2010).
Plaintiff's requests for production relating to such issues in this case can be broken into two groups. The first consists of requests for information allowed under Fed. R. Civ. P. 45, and the second of requests that the Court order the Director of the CDCR, a non-party, to take certain actions. The Court will analyze each group separately.
The first group includes the following requests: 1) order the Director of CDCR to provide Plaintiff with the location of Plaintiff's inmate witnesses and 2) order the Director of CDCR to allow Plaintiff to inspect his medical files, medical expert reports, and photographic imagery. Pursuant to the California Code of Regulations, prisoners are allowed to correspond with inmates held at state correctional agencies. Cal. Code. Regs., tit. 15 § 3139. Inmates are also allowed to review their own medical files. Id. at § 3370. Plaintiff alleges that these requests are relevant to his claims and alleges that he has tried to obtain this information through various requests, but has been unsuccessful. (Mot. at 2-3.) Thus, Plaintiff's efforts to secure such information appears appropriate under the circumstances of this case. Such requests should be dealt with with as minimal expenditure of resources as practical for all involved and, if possible, informally. To that end, defense counsel shall contact the litigation office at Corcoran State Prison in an effort to facilitate the provision to Plaintiff of the current location of Plaintiff's inmate witnesses and Plaintiff's medical files. Defense counsel shall notify the Court within twenty days of the date of service of this Order whether this direction can be complied with and, if so, when. If defense counsel fails to so proceed, Plaintiff may serve a Fed. R. Civ. P. 34 request for the production of same on Defendants. If these avenues prove unsuccessful the Court will consider directing the U.S. Marshal to effect service of a records subpoena on the Director of CDCR.
The second group includes the following requests 1) issue an order
compelling the Director of CDCR to allow Plaintiff to confidentially
correspond with inmate witnesses, 2) order the Director of CDCR to
provide a way for Plaintiff to personally interview the inmate
witnesses, 3) provide Plaintiff with a private investigator to
interview the inmate witnesses,
4) order the Director of CDCR to direct individuals at Corcoran State
Prison to provide him with access to the law library at least twice a
week, and 5) order the Director of CDCR to transport Plaintiff to the
United States District Court in Fresno, California to use the Court's
law library twice a week. These requests are ...