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Homer Tyrone Lewis v. Derral G. Adams

February 11, 2013


The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge


I. Background

Plaintiff Homer Tyrone Lewis ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's first amended complaint against Defendants Adams, Junious, Lopez, and Davis for retaliation in violation of the First Amendment, and against Defendants Adams, Junious, Lopez, Davis, and Morrison for deliberate indifference to Plaintiff's safety in violation of the Eighth Amendment.

On November 6, 2012, and December 5, 2012, Plaintiff filed two motions to compel discovery responses from Defendants. ECF Nos. 66, 74. On November 19, 2012, Defendants filed their opposition to the first motion. ECF No. 71. On December 3, 2012, Plaintiff filed his reply.

ECF No. 73. The matter is submitted pursuant to Local Rule 230(l). 2

II. Production of Documents

Plaintiff moves to compel the production of documents.*fn1 In responding to discovery requests, defendants must produce documents or other tangible things which are in their "possession, 5 custody or control." Fed. R. Civ. P. 34(a). Responses must either state that inspection and related 6 activities will be permitted as requested, or state an objection, including the reasons. Id. 34(b)(2)(B). 7

Actual possession, custody or control is not required. "A party may be ordered to produce a document in the possession of a non-party entity if that party has a legal right to obtain the document 9 or has control over the entity who is in possession of the document." Soto v. City of Concord, 162 F.R.D. 603, 620 (N.D. Cal. 1995). As the Court explained in Allen v. Woodford, 2007, U.S. Dist. LEXIS 11026, *4-6, 2007 WL 309945, *2 (E.D. Cal. Jan. 30, 2007) (internal citations and quotations omitted):

Property is deemed within a party's possession, custody, or control if the party has actual possession, custody, or control thereof or the legal right to obtain the property on demand. A party having actual possession of documents must allow discovery even if the documents belong to someone else; legal ownership of the documents is not determinative. Control need not be actual control; courts construe it broadly as the legal right to obtain documents upon demand. Legal right is evaluated in the context of the facts of each case. The determination of control is often fact specific. Central to each case is the relationship between the party and the person or entity having actual possession of the document. The requisite relationship is one where a party can order the person or entity in actual possession of the documents to release them. This position of control is usually the result of statute, affiliation or employment. Control may be established by the existence of a principal-agent relationship.

Such documents also include documents under the control of the party's attorney. Meeks v. Parson, 2009 U.S. Dist. LEXIS 90283, 2009 WL 3303718 (E.D. Cal. September 18, 2009) (involving a subpoena to the CDCR); Axler v. Scientific Ecology Group, Inc., 196 F.R.D. 210, 212 (D. Mass. 2000) (A "party must product otherwise discoverable documents that are in his attorneys' possession, custody or control."); Gray v. Faulkner, 148 F.R.D. 220, 223 (N.D. Ill. 1992); see also Cal. Code Regs. tit. 15, § 3370(e) ("No case records file, unit health records, or component thereof shall be released to any agency or person outside the department, except for private attorneys hired to represent the department, the office of the attorney general, the Board of Parole Hearings, the Inspector General, and as provided by applicable federal and state law."). 3

B. Motion To Compel No. 1

Plaintiff requests documents pertaining to complaints and investigations against Defendants regarding retaliation (as to Defendants Adams, Junious, Lopez, and Davis), and failure to protect (as 6 to Defendants Adams, Junious, Lopez, Davis, and Morrison). including but not limited to, 7 investigative reports by the Federal Bureau of Investigation, (CDCR) Office of Internal Affairs 8 (OIA), Investigative Services Unit (ISU), or any other outside law enforcement agencies concerning [Retaliation] against inmates, and [Failure-to-Protect] inmates due to inmate-on-inmates assaults at CSP-Corcoran from January 2007 to the date of your response, produce copies of documents(s)." Plaintiff does not submit Defendants' discovery response, as required under the Local Rules. See

L.R. 250.3 (requests for production and responses shall not be filed unless and until it is at issue). Defendants contend that this response had been denied by the Court in a prior order. Defs.'

Opp'n 71. Defendants are correct. The Court ruled on a similar motion to compel on November 5, 2012. ECF No. 65. However, that denial was without prejudice. Thus, Plaintiff was permitted to submit ...

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