The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Introduction & Background
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. The parties have consented to the jurisdiction of the undersigned. Pending before the court are a number of motions*fn1 filed by plaintiff: 1) motion by plaintiff for the court to provide subpoena duces tecum forms to serve non-parties, filed on April 23, 2012; 2) plaintiff's May 4, 2012 motion for reconsideration of the court's order filed on April 23, 2012; 3) three motions by plaintiff to compel discovery from non-parties, filed on May 9, 2012; 4) an incorrectly entitled motion to compel further production of documents from defendants, filed on May 14, 2012, to which defendants filed their response on May 31, 2012, after which plaintiff filed "an objection," which the court will construe as a reply on June 14, 2012; 5) a second motion filed by plaintiff on May 14, 2012, seeking reconsideration of the order filed on May 1, 2012, to which defendants filed a response on May 31, 2012, after which plaintiff filed an "objection," on June 14, 2012, which the court will construe as a reply. It is necessary to review the background of this case in order to parse and adjudicate plaintiff's largely repetitive but disorganized motions.
Plaintiff is reminded at the outset that in this case, as he has been previously informed, the gravamen of his allegations for purposes of this civil rights action against defendants Redding Police Department, Officer Jason Rhoads and Officer Rebecca Zufall is a claim of excessive force.
What is at issue in the second amended complaint are plaintiff's allegations of the use of excessive force against him by defendants Redding Police Department, Officer Jason Rhoads and Officer Zufall, Badge # 167.1 See Order, filed on October 17, 2011, pp. 1-2.*fn2 According to plaintiff, on September 26, 2010, plaintiff ran to escape an assault by vigilantes who thought he was a rapist, child molester and/or ex-gangmember. Second Amended Complaint (SAC), p. 1. As plaintiff ran, defendant Officer Rhoads jumped out of his car, pepper-sprayed plaintiff, forced him to lie on the ground, kneeing him numerous times in the back and punching plaintiff in the face. Id., at 1-2. Defendant Officer Zufall cuffed plaintiff's right hand; defendant Rhoads pinned down plaintiff's left hand then drew him up from the ground roughly by the cuffs and threw him in the back of defendant Zufall's car as plaintiff experienced a bout of asthma from the pepper spray. Id., at 2. When plaintiff arrived at the jail, he had to be transported to the hospital for his injuries to be treated before he could be medically cleared for jail. Id.
Order, filed on April 23, 2012, pp. 2-3.
Even earlier in this action, in directing service of this action upon defendants Redding Police Department and Officers Rhoads and Zufall based on plaintiff's allegations of excessive force, the court made clear that plaintiff's claims for money damages were barred to the extent that he alleged due process violations in the conviction resulting from the September 26, 2010 arrest/incident giving rise to plaintiff's excessive force allegations against defendants.
In Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364 (1994), an Indiana state prisoner brought a civil rights action under § 1983 for damages. Claiming that state and county officials violated his constitutional rights, he sought damages for improprieties in the investigation leading to his arrest, for the destruction of evidence, and for conduct during his trial ("illegal and unlawful voice identification procedure"). Convicted on voluntary manslaughter charges, and serving a fifteen year term, plaintiff did not seek injunctive relief or release from custody. The United States Supreme Court affirmed the Court of Appeal's dismissal of the complaint and held that: in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under 1983.
Heck, 512 U.S. at 486, 114 S. Ct. at 2372. The Court expressly held that a cause of action for damages under § 1983 concerning a criminal conviction or sentence cannot exist unless the conviction or sentence has been invalidated, expunged or reversed. Id. Plaintiff's claims against defendant Officer Peggy Porter for writing a false police report to manufacture probable cause and his allegations regarding irregularities committed by Officer Williams in interviewing plaintiff and alleged inconsistencies between the police report by Williams and what was said in the interviews must be dismissed. Second Amended Complaint, pp. 3-8. Plaintiff refers to having been charged after the September 26, 2010 incident at issue herein. It is unclear whether he was returned to prison pursuant to a parole revocation or a new conviction. In either case, however, plaintiff does not make any showing that his present conviction has been reversed or invalidated. Therefore, he cannot pursue his money damages claims on the basis that he was denied due process by officers whose alleged misconduct led to his conviction before he has pursued a successful challenge to the proceedings leading to his current incarceration via a habeas corpus petition pursuant to 28 U.S.C.§ 2254.
Order, filed on October 17, 2011, pp. 2-3. Thus, plaintiff goes far afield when he attempts to litigate claims that seek to undermine his conviction.
Plaintiff's Motion to Compel Further Production of Documents By order filed on May 1, 2012, plaintiff's motion to compel discovery was denied as moot and plaintiff was directed to the extent that any of defendants' discovery responses or production remained at issue to be specific in identifying a request or interrogatory to which defendants have not adequately responded and to specifically set forth any deficiency in any of the defendants' discovery responses or production by May 18, 2012. Plaintiff has evidently made an effort to do so in his filing of May 14, 2012 (docket # 61), but he has fallen short in a number of respects, including failing to identify his response as a motion to compel (although he has not been reserved in identifying his repetitive motions to compel production from nonparties as such); moreover, plaintiff fails to provide the discovery requests themselves, or the responses he finds deficient, in a lucid and coherent fashion.
Plaintiff concedes that he received a 911 and dispatch call sheet as well as the internal affairs and police reports [concerning the subject incident]. Motion, docket # 61, p. 1. Plaintiff, however, complains that because he did not receive recordings of the 911 and dispatch calls (log no. L361), the record is incomplete. Id. Plaintiff argues that there are two tapes which he states are referenced in the police reports but that he only received one which he states he cannot hear although plaintiff states he has a transcribed copy of the tape that had been "cleaned up" by defendant Redding Police Department for plaintiff's criminal trial. Id. at 2.
Plaintiff has also requested Shast.com [or Shascom] dispatch calls, evidently to show defendants contacting plaintiff's parole officer after a parole hold was placed which information would allegedly dispute what defendant Zufall said in response to an interrogatory propounded by plaintiff. Motion, dkt # 61, p. 2. Plaintiff seeks Shastcom 911 records because defendant Rhoads stated defendant Zufall contacted his parole agent eleven times. Id. He wants cell phone records of defendant Zufall for Sept. 26, 2010, evidently to see if the phone number of his parole agent, Randy Abney, is listed there. Id. Plaintiff believes that records he seeks, including a variety of GPS records, will demonstrate that defendants have been misleading in their reports, as to, for example, whether or not he was confrontational with police at the time of his arrest. Id., at 2-4. Much of what plaintiff seeks, however, is irrelevant to this cause of action for excessive force and evidences an interest in engaging in an inappropriate effort to re-litigate his criminal conviction. For example, plaintiff believes records will show that while Officer Williams' report indicates plaintiff was read his Miranda rights it does not reflect entrapment and outrageous police conduct. Id., at 5. Plaintiff goes on to assert that Shasta County Jail records will show that plaintiff was given alcohol de-tox medication and was under the influence of those drugs when he was interviewed on Sept. 28, 2010 (two days after the incident at issue). Id. Such information appears to have little bearing on what is relevant for the claims pending in this action. However, to that end it does appear that plaintiff requested incident reports involving grievances against and investigations of defendants Rhoads and Zufall although he does not make clear what the response to any such request was, if any. Dkt. # 61, p. 3.
To the extent that plaintiff seeks further discovery from defendants regarding a recording of 911 calls, defendants state that they have been informed that dispatch call recordings are recycled periodically, thus any actual call recordings have been recycled and destroyed. Response to plaintiff's multiple filings (docket # 62), pp. 1-2. Defendants' counsel also warrants that defendants have produced all printed dispatch records of dispatch calls on the night of the subject incident and declares his belief that no defendants, including the Redding Police Department, have possession of any 911 recordings. Docket # 62-1, Declaration of Gary Brickwood, ¶ 2. Defendants refer to plaintiff's declaration that he had received the dispatch call as part of the criminal trial procedure, in which case, defendants maintain, plaintiff has recorded documents no longer available to the defendants. Id., at 2.
To plaintiff's continued complaints of not having received a GPS record, defendants assert that Redding Police Department patrol vehicles have no GPS devices and have no GPS record available of either plaintiff's or the defendant officers' location during the subject incident. Docket # 62, p. 2; docket # 62-1, Brickwood Dec., ¶ 3. As to plaintiff's complaints against the state parole office for a failure by that office to respond to his request for a GPS document, defendants respond that while they have no direct knowledge of the state parole GPS system, counsel for defendants called State Parole Officer Randy Abney. Id., Brickwood Dec., ¶
4. Counsel learned that the state parole office does use a GPS system and maintains records of a parolee's whereabouts based on the ankle bracelet such as plaintiff wore at the time as a parolee, but that Mr. Abney was unaware of any process whereby that office could produce a video, film or disk of plaintiff's activities. Id. Rather, Mr. Abney indicated that the parole office is limited to a database he believes to be maintained in Texas which can illustrate a dot on a google earth kind of map which show plaintiff's location at different times on a particular day. Docket # 62, pp. 2-3; Brickwood Dec., ¶ 4. According to defendants, this overhead view does not provide a photograph of activities and would not show the location of police officers and patrol cars. Id., at 3.
Mr. Abney advised me that the local parole office could enter a time on a given day and as a result the computer that they utilize would show a point of location for Mr. FRAZIER. Attached and incorporated into the Declaration of Gary Brickwood is an illustration of the map sent to me by Parole Agent Abney.
Mr. Abney explained that the green dots on the map are the location of Mr. FRAZIER at different times on September 26, 2010 at approximately 6:10 p.m. For reference the map shows local Highway 273. The gas station where the altercation which is the subject of this lawsuit took place is on the right side of the map. In general, the map discloses that Mr. FRAZIER was located in the parking area of the ...