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Daniel Steve Dixon v. S. Larosa

January 16, 2013

DANIEL STEVE DIXON, PLAINTIFF,
v.
S. LAROSA, ET AL., DEFENDANTS.



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

ORDER

Plaintiff's motion to compel further responses to discovery is before the court. Defendants filed an opposition, and plaintiff filed a reply. As set forth more fully below, the court finds that plaintiff's motion to compel further responses is granted in part.

A. Background

As recounted in this court's June 22, 2012 order, the sole issue remaining in this case is whether defendant LaRosa's September 16, 2009 search of plaintiff's cell was performed in retaliation for plaintiff's August 23, 2009 grievance regarding double-celling. (Dkt. No. 85 at 1.) On September 18, 2009, plaintiff filed grievance MCSP-09-02012, entitled "Cell Trashed During Improperly Frequent Cell Search," complaining that defendant LaRosa retaliated against plaintiff for filing grievance MCSP-09-01626, by excessively searching, and allegedly "trashing," plaintiff's cell on September 16, 2009. (Dkt. No. 38-3 at 4; Dkt. No. 12 at 8-10.) In other words, plaintiff contends that defendant's search of plaintiff's cell on September 16, 2009, was too frequent and was improper because defendant allegedly "trashed" plaintiff's cell.

B. Plaintiff's First Set of Interrogatories

Plaintiff seeks to compel further answers to all 25 of the first set of interrogatories. In opposition, defendant specifically addresses interrogatories 1, 8, and 15, and stands on his responses and objections to the remaining interrogatories. Moreover, defendant maintains he provided complete substantive responses to each interrogatory. The court addresses the interrogatories seriatim.

Interrogatory No. 1: What is your full name?

Response: Defendant LaRosa objects to this request on the grounds that it is not relevant and not likely to lead to the discovery of admissible evidence. Defendant further objects on the grounds that it calls for information protected by the official information privilege. Without waiving these objections, Defendant responds that his name is S. LaRosa.

(Dkt. No. 88 at 85-86.) In his motion, plaintiff argues that he requested defendant's full name "to ensure against another named 'S. LaRosa,'" and that California Code of Regulations, Title 15, § 3004(a) provides that "employees and inmates may use first names in conversation with each other when it is mutually acceptable to both parties." Id. Defendant opposes compelling further response to this interrogatory, arguing that plaintiff failed to demonstrate its relevance, that "there is no question that plaintiff has located and served the correct 'S. LaRosa,'" (dkt. no. 91 at

3), and that due to plaintiff's violent criminal history, defendant would rather not disclose his first name.

In this action, defendant is not defending on a theory that plaintiff served or sued the wrong "S. LaRosa." Section 3004(a) uses the term "may," which is conditional, and defendant LaRosa expressed a legitimate concern about disclosing his first name. Accordingly, plaintiff's motion for further response to interrogatory no. 1 is denied.

Interrogatory No. 2: Between August 2009 and September 2009, what days were you assigned to A-Facility, Building #1 of Mule Creek State Prison (MCSP)?

Response: Defendant objects to this request on the grounds that it calls for information that is not relevant and not likely to lead to the discovery of admissible evidence. Without waiving this objection, Defendant responds that he believes he worked in Building #1 on Thursdays and Fridays during August and September 2009.

(Dkt. No. 88 at 86.) In his motion, plaintiff states that he was merely asking defendant to acknowledge that he was working in Building #1 on August 8, 2009 and September 16, 2009, as verified in documentary evidence. However, plaintiff did not specifically ask about August 8 or September 16 in this interrogatory. Moreover, plaintiff has documentary evidence bearing defendant's signature as evidence defendant was working on August 8 and September 16, 2009. Plaintiff did not ask defendant if it was his signature on the documents evidencing his presence on those dates. Finally, this action is proceeding solely on plaintiff's challenge to defendant's cell search on September 16, 2009; defendant is not defending this action on a claim that he was not working on September 16, 2009, or on August 8, 2009. Plaintiff failed to demonstrate the relevance of whether defendant was working any other dates during August or September of 2009. Thus, plaintiff's motion to compel further response to interrogatory no. 2 is denied.

Interrogatory No. 3: As the unit floor officer in Building #1, describe, if any, problems that existed between you and Plaintiff/Inmate Dixon?

Response: Defendant objects to this request on the grounds that it is vague and ambiguous as to the term "problem," it is vague as to time, and it calls for information that is not relevant and not likely to lead to the discovery of admissible evidence.

Without waiving these objections, and assuming Plaintiff is asking whether Defendant LaRosa ever recalls Plaintiff causing a disturbance in Building 1, Defendant LaRosa does not recall any major disturbance. Defendant LaRosa recalls only one instance in which he had to tell Plaintiff that he could not take a shower because the permitted time for showers had passed, and Plaintiff made comments complaining that LaRosa should allow him to shower anyway. This did not, however, cause any disturbance in the housing unit.

(Dkt. No. 88 at 86.) In his motion, plaintiff contends his retaliation claim is based on defendant's "uprooting" plaintiff from Building #1 where plaintiff was successfully housed for over four years until he filed prison grievances against building officers. Plaintiff claims the information sought is relevant.*fn1

However, plaintiff's claims concerning retaliatory bed moves were unexhausted and were dismissed from this action. (Dkt. No. 60 at 15, 20-21; Dkt. No. 73.) This action proceeds as to plaintiff's claim that defendant LaRosa's search of plaintiff's cell on September 16, 2009, was allegedly performed in retaliation for plaintiff's filing a grievance. Despite his objections, defendant answered this question. No further response is required.

Interrogatory No. 4: Did Plaintiff/Inmate Dixon ever receive any written disciplinary reports of any kind, e.g., chronos or rules violation reports, from you?

Response: Defendant objects to this request on the grounds that it is vague as to time, and it calls for information that is equally available to Plaintiff, and is not relevant and not likely to lead to the discovery of admissible evidence. Without waiving these objections, Defendant LaRosa does not believe he ever issued any written disciplinary reports or counseling chronos to Plaintiff.

(Dkt. No. 88 at 86.) Despite defendant's objections, defendant answered this interrogatory. No further response is required.

Interrogatory No. 5: Are you aware of any correctional officer issuing Plaintiff/Inmate Dixon any written disciplinary report while he was housed in Building #1?

Response: Defendant objects to this request on the grounds that it calls for information that is not relevant and not likely to lead to the discovery of admissible evidence. Without waiving these objections, Defendant LaRosa is not aware that any other Correctional Officer issued Plaintiff a disciplinary report in Building 1. (Dkt. No. 88 at 87.) Despite defendant's objections, defendant answered this interrogatory. No further response is required.

Interrogatory No. 6: How often did you conduct cell searches when assigned to Building #1?

Response: Defendant objects to this request on the grounds that it calls for information that is not relevant and not likely to lead to the discovery of admissible evidence, and it is vague as to time.

Without waiving these objections, and assuming Plaintiff is asking how many cell searches Defendant LaRosa conducted per shift during 2009, in Building 1, Defendant responds that he and the other Floor Officer assigned to Building 1 usually conducted three cell searches per shift, unless institutional demands required additional searches or prevented him from completing the three searches. (Dkt. No. 88 at 87.) Despite defendant's objections, defendant answered this interrogatory. No further response is required.

Interrogatory No. 7: How many cells did you search on any given day when assigned to Building #1?

Response: Defendant objects to this request on the grounds that it calls for information that is not relevant and not likely to lead to the discovery of admissible evidence, and it is vague and ambiguous as to the terms "any given day." Without waiving these objections, and assuming Plaintiff is asking what was the usual number of cells searched per shift during 2009 in Building 1, Defendant LaRosa responds that there were usually three searches completed per shift on second and third watch. (Dkt. No. 88 at 87-88.) Despite defendant's objections, defendant answered this interrogatory. No further response is required.

Interrogatory No. 8: Exactly what is the criteria for searching cells?

Response: Defendant objects to this request on the grounds that it is vague as to the terms "criteria for searching cells," and it is unintelligible. Based on these objections, Defendant will not respond to this request. (Dkt. No. 88 at 88.) Plaintiff argues that in the dictionary, criteria is defined as "a standard on which a judgment may be based," and argues that defendant either failed to adhere to the rules and regulations governing cell search procedures, or that he does not understand such rules and regulations. (Dkt. No. 88 at 12.) Defendant contends that the term "criteria for searching cells" is vague to the point of being meaningless because there could be many reasons for searching a cell, depending on the circumstances. (Dkt. No. 91 at 4.) Defendant contends no further response should be ordered because defendant cannot be expected to know what circumstances plaintiff was referring to in interrogatory no. 8.

Defendant is correct that interrogatory no. 8 is vague. Defendant has explained that there could be many reasons for searching a cell, depending on the circumstances. (Dkt. No. 91 at 4.) Plaintiff's argument in support of the motion suggests plaintiff was seeking to know what defendant LaRosa's criteria was for searching plaintiff's cell on September 16, 2009. However, that is not the question plaintiff asked. Defendant's objections are sustained, and no further response is required.

Interrogatory No. 9: Do unit officers conduct cell searches alone or with their partner (another Correctional Officer)?

Response: Defendant objects to this request on the grounds that it calls for information that is not relevant and not likely to lead to the discovery of admissible evidence, and it is vague as to time. Without waiving these objections, and assuming Plaintiff is asking whether Correctional Officers were permitted to search cells without another officer present during the search in Building 1 during 2009, Defendant responds that Correctional Officers were permitted to search a cell without another officer present when it was safe to do so.

(Dkt. No. 88 at 88.) Plaintiff complains that defendant "continues to object" to this interrogatory, yet provided "a response that demonstrates the defendant understands precisely what plaintiff's request is asking." (Dkt. No. 88 at 13.) However, plaintiff does not explain, despite defendant's objections, how defendant's response is inadequate. Essentially the defendant's response answered the interrogatory affirmatively; that is, correctional officers may search a cell without another officer present when it is safe to do so. No further response is required.

The court addresses interrogatory nos. 10 - 12 together as they are related. Interrogatory No. 10: Is it routine for the unit officer to search an inmate's cell without having the inmate's personal property card? Response: Defendant objects to this request on the grounds that it is vague as to time, it is ambiguous as to the term "routine," and it calls for ...


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