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George E. Jacobs Iv v. W. J. Sullivan

August 27, 2012

GEORGE E. JACOBS IV,
PLAINTIFF,
v.
W. J. SULLIVAN, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER GRANTING IN PART PLAINTIFF'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS (Doc. 85.)

ORDER FOR DEFENDANTS TO PRODUCE DOCUMENTS PURSUANT TO PLAINTIFF'S REQUEST FOR PRODUCTION NO. 13, AS INSTRUCTED BY THIS ORDER, WITHIN THIRTY DAYS

I. BACKGROUND

Plaintiff George E. Jacobs IV ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. This action now proceeds with the Third Amended Complaint filed by Plaintiff on May 5, 2010, on Plaintiff's Eighth Amendment claims, against defendants D. Watson (correctional sergeant), P. Chan (correctional officer), S. McGregor (correctional officer), D. Blankenship (correctional officer), M. Crotty*fn1 (correctional officer), E. Granillo (correctional officer), C. Nelson (correctional officer), M. Carrasco (correctional captain), R. Johnson (correctional lieutenant), and D. Jobb (correctional officer) for use of excessive force; and against defendants J. Adams aka Salazar (medical technical assistant), Ms. Alexander (registered nurse), Watson, and Granillo for failure to provide adequate medical care.*fn2 (Doc. 29.)

On January 23, 2012, the Court issued a scheduling order in this action, extending the discovery deadline to March 5, 2012, for the limited purpose of allowing Plaintiff to file a motion to compel. (Doc. 83.) On February 17, 2012, Plaintiff filed a motion to compel production of documents. (Doc. 85.) On March 15, 2012, Defendants filed an opposition. (Doc. 95.) On July 9, 2012, Plaintiff filed a reply. (Doc. 106.) Plaintiff's motion to compel is now before the Court.

II. PLAINTIFF'S ALLEGATIONS*fn3

Plaintiff alleges that he was transferred to CCI-Tehachapi from Lancaster State Prison. Plaintiff complains that the staff at CCI-Tehachapi immediately acted hostile toward Plaintiff because the staff at Lancaster State Prison informed them that Plaintiff was a "staff assaulter" and filed administrative grievances. (Third Amended Complaint ("3ACP"), Doc. 29 ¶ 22.)

Plaintiff claims that defendant D. Watson withheld Plaintiff's personal and legal property because of Plaintiff's reputation as a staff assaulter and grievance filer. Plaintiff filed a grievance about his property, but did not receive his property. Plaintiff told defendant D. Blankenship that he wanted to speak with higher authorities. Blankenship told Plaintiff that "today is not a good day to be doing this because the sergeant (defendant D. Watson) is not to be messed with!" (3ACP ¶ 25.) Later, Watson approached Plaintiff and berated him. Plaintiff asked to speak with a higher authority again, but Watson began making comments about Plaintiff "wanting to hurt himself" and began spraying Plaintiff with pepper spray. (3ACP ¶ 27.) Defendant P. Chan also joined in and sprayed Plaintiff. Watson asked Plaintiff if he wanted to come out of the cell, but when Plaintiff approached the door, he was bombarded with more pepper spray. Defendant S. McGregor then opened the door from the control tower to allow Watson to directly spray Plaintiff. Watson asked Plaintiff if he was ready to exit and the cell door suddenly opened completely and a crowd of guards rushed in and attacked Plaintiff. Plaintiff claims that defendants Carrasco, Johnson, Jobb, Watson, and Chan were standing at the entrance of Plaintiff's cell watching defendants Blankenship, Crotty, Granillo, and Nelson "assault and batter Plaintiff in the form of using unnecessary use of force excessively." (3ACP ¶ 33.) Plaintiff was then shackled and taken to a cell outside the building. Plaintiff's clothes were cut off and he was sprayed with cold water. Plaintiff claims that the weather was particularly cold because it was in the middle of winter. Plaintiff was verbally abused by Watson while he was being hosed down.

Watson and Granillo then escorted Plaintiff to the dining hall and placed him in a holding cage and strip searched him, leaving him naked. Watson took out his pepper spray and shook it up while making sexually harassing remarks. Watson left and returned later to tell Plaintiff that his officers were injured and weapons were found in Plaintiff's cell. Plaintiff was then sprayed with pepper spray again. Watson then falsely reported that Plaintiff spat on Watson's face, to justify the use of pepper spray. Plaintiff claims that Granillo was present during the entire sequence of events but failed to intervene. Plaintiff alleges that Watson refused to summon medical attention unless Plaintiff agreed to exit the holding cage and allow Watson to wash off all the pepper spray to eliminate any evidence of misconduct. When Plaintiff pled for medical assistance, Watson went outside to get the hose and sprayed Plaintiff with water again. Plaintiff claims that D. Abarquez (not named as a defendant) then took photos of Plaintiff.

Plaintiff complains that Abarquez was responsible for collecting evidence of the incident but allowed Plaintiff's cell to remain unsecured for over an hour, thereby allowing the other defendants to enter and exit and plant false evidence in the cell. Plaintiff was later seen by defendant J. Adams and a "psych doctor." (3ACP ¶ 46.) Plaintiff complains that neither person did anything to have Plaintiff transported to the medical health care unit for treatment. Plaintiff complained about the burning sensation in his eyes and on his body, and told J. Adams that he was on eye medication and needed his medication to alleviate the pain. Adams ignored Plaintiff and walked away. Plaintiff also complains that defendant Alexander came by, but refused to offer any medical treatment. Hours later, Watson told Plaintiff that he was being moved to the infirmary to be examined by a physician. However, Plaintiff alleges that he was tricked and was not seen by a physician. Plaintiff alleges that he was placed on suicide watch "in direct violation of his civil liberties." (3ACP ¶ 50.) Plaintiff complains that while he was on suicide watch, he was "not provided with any of life's bare minimum necessities" because he was fed via "two plastic bags filled with loose food." (3ACP ¶ 51.) Later,

D. Abarquez transferred Plaintiff to CSP-Corcoran. Plaintiff was told that he was being transferred to receive medical care, but was instead placed on suicide watch at CSP-Corcoran. Plaintiff claims that the entire incident was a conspiracy to place Plaintiff on suicide watch in response to Plaintiff's exercise of his right to file administrative grievances complaining about the conduct of prison guards. Plaintiff claims that Defendant John Doe #1 is a senior hearing official who served as the adjudicator for the rules violation report that Plaintiff received as a result of the pepper spray incident. John Doe #1 found Plaintiff guilty of battery on a peace officer with a deadly weapon. Plaintiff claims that he was denied the right to call the defendants and all other pertinent eye witnesses. Plaintiff also claims he was denied the right to present physical and documentary evidence. Plaintiff was told that he would be found guilty regardless of any evidence that Plaintiff presented in his defense.

III. PLAINTIFF'S CLAIMS

A. Eighth Amendment Excessive Force Claim

The Court found that Plaintiff states a cognizable claim for excessive force under the Eighth Amendment, against defendants Watson, Chan, McGregor, Blankenship, Crotty, Granillo, Nelson, Carrasco, Johnson, and Jobb, for attacking Plaintiff and maliciously pepper-spraying Plaintiff. Plaintiff claims that defendants Watson and Chan pepper sprayed Plaintiff in a malicious manner. Plaintiff alleges that defendant McGregor participated in the first pepper spray incident by opening the door for Watson so he could administer the pepper spray directly at Plaintiff. Plaintiff alleges that defendants Blankenship, Crotty, Granillo, and Nelson attacked Plaintiff while defendants Carrasco, Johnson, Jobb, Watson, and Chan stood nearby and observed without making any effort to intervene. Plaintiff was later hosed down in the cold and pepper sprayed again by Watson in a malicious manner. Plaintiff alleges that defendant Granillo stood by and observed without making any effort to intervene.

"What is necessary to show sufficient harm for purposes of the Cruel and Unusual Punishments Clause [of the Eighth Amendment] depends upon the claim at issue . . . ." Hudson v. McMillian, 503 U.S. 1, 8 (1992). "The objective component of an Eighth Amendment claim is . . . contextual and responsive to contemporary standards of decency." Id. (internal quotation marks and citations omitted). The malicious and sadistic use of force to cause harm always violates contemporary standards of decency, regardless of whether or not significant injury is evident. Id. at 9; see also Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002) (Eighth Amendment excessive force standard examines de minimis uses of force, not de minimis injuries)). However, not "every malevolent touch by a prison guard gives rise to a federal cause of action." Id. 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).

"[W]henever prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Id. at 7. "In determining whether the use of force was wanton and unnecessary, it may also be proper to evaluate the need for application of force, the relationship between that need and the amount of force used, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response." Id. (internal quotation marks and citations omitted). "The absence of serious injury is . . . relevant to the Eighth Amendment inquiry, but does not end it." Id.

B. Eighth Amendment Medical Care Claim

The Court found that Plaintiff states cognizable claims against defendants Adams aka Salazar, Alexander, Watson, and Granillo for failure to provide adequate medical care in violation of the Eighth Amendment, for ignoring Plaintiff's requests for decontamination from the effects of the pepper spray and Plaintiff's requests for access to his eye medication to alleviate the pain from pepper spray.

"[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate must show 'deliberate indifference to serious medical needs.'" Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 295 (1976)). The two part test for deliberate indifference requires the plaintiff to show (1) "'a serious medical need' by demonstrating that 'failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain,'" and (2) "the defendant's response to the need was deliberately indifferent." Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal quotations omitted)). Deliberate indifference is shown by "a purposeful act or failure to respond to a prisoner's pain or possible medical need, and harm caused by the indifference." Id. (citing McGuckin, 974 F.2d at 1060). Deliberate indifference may be manifested "when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care." Id. (citing McGuckin at 1060 (internal quotations omitted)). Where a prisoner is alleging a delay in receiving medical treatment, the delay must have led to further harm in order for the prisoner to make a claim of deliberate indifference to serious medical needs. McGuckin at 1060 (citing Shapely v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985)). The failure to decontaminate prisoners or otherwise provide medical treatment for prisoners exposed to pepper spray can support a claim for the violation of the Eighth Amendment. Clement v. Gomez, 298 F.3d 898, 905 (9th Cir. 2002).

IV. MOTION TO COMPEL PRODUCTION OF DOCUMENTS

A. Federal Rules of Civil Procedure 26(b), 36(a), and 37 Under Rule 26(b), "[U]nless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense - including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1).

Pursuant to Rule 34(a) of the Federal Rules of Civil Procedure, "any party may serve on any other party a request to produce and permit the party making the request . . . to inspect and copy any designated documents . . . which are in the possession, custody or control of the party upon whom the request is served." Fed. R. Civ. P. 34(a)(1). "[A] party need not have actual possession of documents to be deemed in control of them." Clark v. Vega Wholesale Inc., 181 F.R.D. 470, 472 (D.Nev., 1998) quoting Estate of Young v. Holmes, 134 F.R.D. 291, 294 (D.Nev. 1991). "A party that has a legal right to obtain certain documents is deemed to have control of the documents." Clark 181 F.R.D. at 472. Under Rule 34(b), the party to whom the request is directed must respond in writing that inspection and related activities will be permitted as requested, or state an objection to the request, including the reasons. Fed. R. Civ. P. 34(b)(2). Also, "[a] party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request." Fed. R. Civ. P. 34(b)(E)(I).

Pursuant to Rule 37(a), a party propounding discovery may seek an order compelling disclosure when an opposing party has failed to respond or has provided evasive or incomplete responses. Fed. R. Civ. P. 37(a)(3)(B). "[A]n evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond." Fed. R. Civ. P. 37(a)(4). "It is well established that a failure to object to discovery requests within the time required constitutes a waiver of any objection." Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir.1992) (citing Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir.1981)). The moving party bears the burden of demonstrating "actual and substantial prejudice" from the denial of discovery. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002) (citations omitted.).

B. Plaintiff's Motion

Plaintiff seeks a court order compelling Defendants to produce documents in response to Requests 1, 7-11, 13-49, 53, 54, 57, 58, 60, 61, 64, and 67 of Plaintiff's Requests for Production of Documents ("RPD") Sets One, Two, and Three. Plaintiff asserts that he served Sets One, Two, and Three on Defendants in April 2011, and Defendants responded on August 22, 2011. Plaintiff argues that some of Defendants' responses were evasive, incomplete, and failed to disclose information required by Federal Rules of Civil Procedure 26(a), (e)(1), and 34, without good cause and/or substantial justification.

> REQUEST FOR PRODUCTION (RFP) NO. 1:

All documents that refer to allegations of misconduct or other improper conduct by prison staff including all named defendants, whether such allegations were made by an inmate or by a member of the prison staff, during relevant time period, per Departmental Operations Manual (D.O.M.) § 54100.25.5, § 54100.25.6, § 54100.25.7; pursuant to Penal Code 832.5(a), Evidence Code(s) §§ 1043, 1044, 1045, 1046.

RESPONSE TO RFP NO. 1:

Defendants have made a reasonable and diligent search for documents and have not been able to locate any documents which would be responsive to this request. Discussion Plaintiff does not specifically address RFP No. 1 but generally argues that he is entitled to relevant documents and Defendants would have located such documents if they had diligently searched the information available to them.

Defendants argue that they should not be compelled to respond further to this request, because this request seeks documents that arise from staff complaints allegedly filed against Defendants, and Plaintiff did not file a staff complaint arising from the January 24, 2005 incident. To the extent Plaintiff seeks other staff complaints and disciplinary actions filed against Defendants, Defendants object to Plaintiff's requests as overbroad and beyond the scope of this litigation. Defendants nonetheless respond that they have made a reasonable and diligent search, and no documents responsive to this request exist.

The Court finds this request to be unreasonable because it is overbroad in its request for "all" documents by "prison staff," vague as to the meaning of "relevant time period," and irrelevant as to its request for information about misconduct by prison staff other than Defendants. Therefore, Defendants are not required to provide any further response to this request.

> RFP NO. 7:

Please produce and relinquish the following document(s); plaintiff's CDCR daily 114A inmates AD/SEG 106 (notes) file. Pursuant to E.V. Code(s) §§ 1530, 1532, 1600.

RESPONSE TO RFP NO. 7:

Included as responsive to this request is a copy of Plaintiff's 114A's from January 24, 2005, through February 3, 2005. (Attachment B)

Discussion Plaintiff does not specifically address RFP No. 7 and does not give any explanation why Defendants' response to RFP No. 7 is deficient. Therefore, Defendants are not required to provide any further response to this request.

> RFP NO. 8:

Please produce and relinquish the following document(s); including but not limited to; plaintiff's 4A-Yard S.H.U. CDCR daily 114A inmate Ad/SEG log (notes) file for the relevant time period of: November 9, 2004 thru January 24, 2005.

RESPONSE TO RFP NO. 8:

Defendants object to this request because it is overbroad and therefore over burdensome, is not relevant to the timeframe of the alleged incident, and is therefore deemed harassing. Defendant further objects because the request appears to be duplicative of Request No. 7.

Discussion Plaintiff does not specifically address RFP No. 8, although he argues that the time period from November 9, 2004 through January 24, 2005 is relevant because this is the time period between Plaintiff's arrival at the prison and the date of the alleged assault. Defendants argue that Plaintiff fails to explain the deficiency of their response to RFP No. 8.

Defendants objections are sustained. Plaintiff has not explained how the Ad Seg log notes from November 9, 2004 through January 23, 2005 are relevant to any of the claims or defenses in this action. This case now proceeds against Defendants only on claims for excessive force and inadequate medical treatment based on events beginning on January 24, 2005. Defendants have already provided the log notes for January 24, 2005 in their response to RFP No. 7. Therefore, Defendants are not required to provide any further response to this request.

> RFP NO. 9:

Please produce and relinquish the following document(s); including but not limited to; IV-AH.U.E. yard (S.H.U.) sergeant log (notes) and tower control booth log notes from relevant time periods. Pursuant to E.V. Codes §§ 1530, 1532.

RESPONSE TO RFP NO. 9:

Defendants object to this request because it is vague as to time, and the term "relevant time periods" implying more than one day. Defendants have made a reasonable and diligent search for documents and have not been able to locate any documents which would be responsive to this request.

Discussion Plaintiff argues that these log books exist and Defendants should provide them. Defendants respond that logs books are only retained for five years; the incident occurred on January 24, 2005; and Defendants had no knowledge of this lawsuit until six years after the incident and a year after the required retention of the log books ended. Plaintiff replies that if there is such a five-year policy, it is the Court's fault the evidence is gone, because Plaintiff made three motions to preserve evidence which were denied, on March 15, 2007, December 26, 2007, and April 19, 2011.

Defendants' objection on the ground that this request is vague as to time is sustained. Moreover, Defendants cannot be compelled to produce documents that no longer exist.*fn4 Therefore, Defendants are not required to make any further responses to this request.

> RFP NO. 10:

Please produce and relinquish the following document(s); including but not limited to; plaintiff 4B-Yard (ACH) unit CDCR daily 114A inmate S.H.U. log (notes) file for the relevant time period of: January 24, 2005.

RESPONSE TO RFP NO. 10:

Defendants object to this request because it is duplicative of Request No. 8. The request is therefore in violation of Rule 26(b)(2)(C). Defendants have made a reasonable and diligent search for documents and have not been able to locate any documents which would be responsive to this request.

Discussion Defendants objection is sustained. RFP No. 10 is duplicative of RFP No. 8. The Court must limit unreasonably cumulative or duplicative discovery. Fed. R. Civ. P. 26(b)(2)(C). Therefore, Defendants are not required to make any further responses to this request.

> RFP NO. 11:

Please produce and relinquish the following document(s); including but not limited to; 4A yard (S.H.U.) dinning hall #4 unit sergeant log (notes), and control tower booth log (notes) for the time period of January 24, 2005. Pursuant to E.V. Codes §§ 1530, 1532, 1600.

RESPONSE TO RFP NO. 11:

Defendants have made a reasonable and diligent search for documents and have not been able to locate any documents which would be responsive to this request. Discussion Plaintiff argues that these log books exist and Defendants should provide them. Defendants respond that logs books are only retained for five years; the incident occurred on January 24, 2005; and Defendants had no knowledge of this suit until six years after the incident and a year after the required retention of the log books ended. Plaintiff replies that if there is such a five-year policy, it is the Court's fault the evidence is gone, because Plaintiff made three motions to preserve evidence which were denied, on March 15, 2007, December 26, 2007, and April 19, 2011.

Defendants cannot be compelled to produce documents that no longer exist. Therefore, Defendants are not required to make any further responses to this request. Plaintiff's argument that the Court is responsible for loss of log notes evidence is addressed above at footnote 4.

> RFP NO. 13:

Please produce and relinquish tangible items, including but not limited to: All photographs of the crime incident scene 4A yard housing unit 5 cell 103, of plaintiff, and E. Granillo, D. Blankenship. Any other photograph relevant thereto pursuant to E.V. Codes §§ 1550, and 1553.

RESPONSE TO RFP 13:

Included as responsive to this request are copies of photographs taken after the incident of January 24, 2005. (Attachment C)

Discussion Plaintiff argues that Defendants have provided him with photographs which do not depict the true nature of the things photographed, because the photos are black and white photocopies of color photos which are too dark to ascertain what the photos depict. Defendants argue that Plaintiff's argument is frivolous because Plaintiff has already seen and inspected the color photographs, and if Plaintiff wants color photographs for use at trial, Defendants will make them available then. Plaintiff replies that he has never seen or been in possession of any color photographs connected to this case.

Plaintiff is entitled to color copies of the requested photographs which accurately depict the subject matter. Fed. R. Civ. P. 26(b)(1). Defendants shall be required to provide Plaintiff with quality color copies of the photographs within thirty days.

> RFP NO. 14:

Please produce and relinquish the following item(s); 4A-yard housing unit 5 isolation log book(s) for January 25, 2005.

RESPONSE TO RFP NO. 14:

Defendants have made a reasonable and diligent search for documents and have not been able to locate any documents which would be responsive to this request. Discussion Plaintiff argues that these log books exist and Defendants should provide them. Defendants respond that logs books are only retained for five years; the incident occurred on January 24, 2005; and Defendants had no knowledge of this suit until six years after the incident and a year after the required retention of the log books ended. Plaintiff replies that if there is such a five-year policy, it is the Court's fault the evidence is gone, because Plaintiff made three motions to preserve evidence which were denied, on March 15, 2007, December 26, 2007, and April 19, 2011.

Defendants cannot be compelled to produce documents that no longer exist. Therefore, Defendants are not required to make any further responses to this request. Plaintiff's argument that the Court is responsible for loss of log notes evidence is addressed above at footnote 4.

> RFP NO. 15:

Please produce and relinquish the following item(s); 114-1 inmate segregation profile for plaintiff Jacobs.

RESPONSE TO RFP NO. 15:

Included as responsive to this request is a copy of Plaintiff's Inmate Segregation Profile. (Attachment D)

Discussion Plaintiff does not specifically address RFP No. 15 and does not give any explanation why Defendants' response to RFP No. 15 is deficient. Defendants are not required to provide any further response to this request.

> RFP NO. 16:

Please produce and relinquish all excessive use of force video tape interviews from relevant time period of November 9, 2004 thru January 24, 2005 of all prisoners who were allegedly assaulted by Defendants. Pursuant to E.V. Codes §§ 1271, 1550.1, 1553, 1562.

RESPONSE TO RFP NO. 16:

Defendants object to this request because it is overbroad, burdensome, and would be extremely expensive to produce any and all recordings of third parties who are not part of this litigation. Defendants further object because the request is not relevant to this matter because Plaintiff is seeking interviews of other inmates, and not this incident. Defendants further object because the production of such items is a violation to the privacy rights of these third parties, and could possibly threaten the security of the institution. Defendants further object because the term "allegedly assaulted" is vague, argumentative, and calls for a legal opinion. It is Defendants position that they have not assaulted Jacobs or any other inmate. Defendants will therefore not produce any documents responsive to this request, because they do not exist.

Discussion Plaintiff argues that this request is not overbroad, as it only requests records of excessive force by Defendants during a two-month period. Plaintiff argues that it is not burdensome to search Defendants' "elite computerized tracking system of files" containing the names of Defendants, incidents involving excessive force incidents "which resulted in a serious injury to the body or head," and the names of the victims. (Motion, Doc. 85 at 11.) Plaintiff also argues that Defendants' argument that the items are confidential or privileged does not apply in federal court.

Defendants argue that this request invades the privacy rights of third parties because inmates participate in use-of-force interviews with the expectation that their statements will be kept confidential. Defendants also argue that the request is overbroad and irrelevant because Plaintiff did not allege that he sustained any blows to the head or face.

Plaintiff replies that under Rule 26(b), he is entitled to discover video interviews of any allegations made by an inmate of misconduct by prison staff involving Defendants during the relevant time period, because these are the same or similar acts as Plaintiff suffered at the hands of Defendants, claims clearly limited to the subject matter in Plaintiff's complaint.

While it is true that "[q]uestions of privilege that arise in the course of the adjudication of federal rights are 'governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience,' " United States v. Zolin, 491 U.S. 554, 562, 109 S.Ct. 2619, 2625 (1989) (quoting Federal Rule of Evidence 501), this Court may give some weight to privacy rights protected by state statutes. The "ultimate responsibility for deciding how much weight to ascribe to such interests, and how that weight compares with the significance of competing interests, must reside with the federal courts." Kelly v. City of San Jose, 114 F.R.D. 653, 656 (N.D.Cal. 1987). This Court usually allows plaintiffs in prisoner cases to discover records of similar claims, such as excessive force, against officers in the past. While evidence of misconduct is "not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character," the evidence may be admissible for other purposes. Fed. R. Evid. 404(b); 608(b), and the scope of discovery encompasses relevant information which "appears reasonably calculated to lead to the discovery of admissible evidence," Fed. R. Civ. P. 26(b). However, privacy concerns must be considered, and the Court often requires that confidential or private information requested in discovery be redacted or submitted for in camera review before it is provided to another party. Here, Plaintiff requests video tapes of interviews given by other inmates, in which the inmates allege that the Defendants in this action used excessive force against them during a limited time period. Plaintiff is not entitled to discover confidential information which may include names of third parties or sensitive testimony given under the expectation of confidentiality by third parties not part of this litigation. Moreover, to the extent that there are numerous video tapes responsive to Plaintiff's request, it is burdensome and expensive for Defendants to produce copies for Plaintiff.

The Court finds that the burden of producing the recordings requested by Plaintiff outweighs its likely benefit, considering that records of use-of-force incidents involving Defendants are available from more convenient, less burdensome, and less expensive sources. Despite claims of privilege, personnel files are discoverable in federal question cases. Garrett v. City and County of San Francisco, 818 F.2d 1515, 1519 n. 6 (9th Cir.1987) (citations omitted). Further, discovery of the information Plaintiff seeks from the video tapes is not essential in resolving the issue of whether Defendants used excessive force against Plaintiff in the January 24, 2005 incident at issue in this action. Therefore, Defendants shall not be required to make further responses to this request.

> RFP NO. 17:

Please produce or relinquish all recommendation records by the Assistant Warden and Facility Captain of all prisoner interviews of excessive use of force arising from defendants' actions including but not limited to the "Report of Findings: Request is for relevant time period of November 9, 2004 thru January 24, 2005. Pursuant to E.V. codes §§ 1271, 1550.1, 1553, 1562.

RESPONSE TO RFP NO. 17:

After a reasonable and diligent search by Defendants, no documents responsive to this request exist.

Discussion Plaintiff does not specifically address RFP No. 17 but generally argues that he is entitled to relevant documents and Defendants would have located such documents if they had diligently searched the information available to them.

Defendants argue that they should not be compelled to respond further to this request, because this request seeks documents that arise from staff complaints allegedly filed against Defendants, and Plaintiff did not file a staff complaint arising from the January 24, 2005 incident. To the extent Plaintiff seeks other staff complaints and disciplinary actions filed against Defendants, Defendants object to Plaintiff's requests are overbroad and beyond the scope of this litigation. Defendants nonetheless respond that they have made a reasonable and diligent search, and no documents responsive to this request exist.

Defendants cannot be compelled to produce documents that do not exist. Plaintiff has not argued, or presented evidence, that any Defendant has faced disciplinary action or that such documents exist. Therefore, Defendants are not required to make any further response to this request.

> RFP NO. 18:

Please produce and relinquish the following document(s): All adverse action records, which is punitive in nature and is intended to correct misconduct or poor performance, or which terminates employment, of each defendant named herein. Pursuant to E.V. § 1043, § 1045, § 1046.

RESPONSE TO RFP NO. 18:

After a reasonable and diligent search by Defendants, no documents responsive to this request exist.

Discussion Plaintiff does not specifically address RFP No. 18 but generally argues that he is entitled to relevant documents and Defendants would have located such documents if they had diligently searched the information available to them.

Defendants argue that they should not be compelled to respond further to this request, because this request seeks documents that arise from staff complaints allegedly filed against Defendants, and Plaintiff did not file a staff complaint arising from the January 24, 2005 incident. To the extent Plaintiff seeks other staff complaints and disciplinary actions filed against Defendants, Defendants object to Plaintiff's requests are overbroad and beyond the scope of this litigation. Defendants nonetheless respond that they have made a reasonable and diligent search, and no documents responsive to this request exist.

Defendants cannot be compelled to produce documents that do not exist. Plaintiff has not argued, or presented evidence, that any Defendant has faced disciplinary action or that such documents exist. Therefore, Defendants are not required to make any further response to this request.

> RFP NO. 19:

Please produce and relinquish the following document(s): All Bureau of Independent Review (BIR) record of any/all investigative and/or disciplinary action taken against each defendant named herein. Pursuant to E.V. Codes §§ 1043, 1045, 1046.

RESPONSE TO RFP NO. 19:

After a reasonable and diligent search by Defendants, no documents responsive to this request exist.

Discussion Plaintiff does not specifically address RFP No. 19 but generally argues that he is entitled to relevant documents and Defendants would have located such documents if they had diligently searched the information available to them.

Defendants argue that they should not be compelled to respond further to this request, because this request seeks documents that arise from staff complaints allegedly filed against Defendants, and Plaintiff did not file a staff complaint arising from the January 24, 2005 incident. To the extent Plaintiff seeks other staff complaints and disciplinary actions filed against Defendants, Defendants object to Plaintiff's requests are overbroad and beyond the scope of this litigation. Defendants nonetheless respond that they have made a reasonable and diligent search, and no documents responsive to this request exist.

Defendants cannot be compelled to produce documents that do not exist. Plaintiff has not argued, or presented evidence, that any Defendant has faced disciplinary action or that such documents exist. Therefore, Defendants are not required to make any further response to this request.

> RFP NO. 20:

Please produce and relinquish the following document(s): All "skelly packages", this material may include but is not limited to the following; investigative report, applicable policies, procedures and Government Code sections; records of training the employee(s) has attended; job descriptions and duty statements and/or post orders that are related to the charges for each defendant named herein. Pursuant to E.V. Codes §§ 1043, 1045, 1046.

RESPONSE TO RFP NO. 20:

After a reasonable and diligent search by Defendants, no documents responsive to this request exist.

Discussion Plaintiff does not specifically address RFP No. 20 but generally argues that he is entitled to relevant documents and Defendants would have located such documents if they had diligently searched the information available to them.

Defendants argue that they should not be compelled to respond further to this request, because this request seeks documents that arise from staff complaints allegedly filed against Defendants, and Plaintiff did not file a staff complaint arising from the January 24, 2005 incident. To the extent Plaintiff seeks other staff complaints and disciplinary actions filed against Defendants, Defendants object to Plaintiff's requests are overbroad and beyond the scope of this litigation. Defendants nonetheless respond that they have made a reasonable and diligent search, and no documents responsive to this request exist.

Defendants cannot be compelled to produce documents that do not exist. Plaintiff has not argued, or presented evidence, that any Defendant has faced disciplinary action or that such documents exist. Therefore, Defendants are not required to produce any documents in response to this request.

> RFP NO. 21:

Please produce and relinquish the following document(s): All "corrective action" records for each defendant named herein. This material may include but is not limited to the following: verbal counseling, in-service training on the job training, written counseling, or a letter of instruction taken by a supervisor to assist an employee in improving his/her ...


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