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Richard S. Kindred v. California Department of

March 12, 2013

RICHARD S. KINDRED,
PLAINTIFF,
v.
CALIFORNIA DEPARTMENT OF MENTAL HEALTH, ET AL.,
DEFENDANTS.



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

) ORDER DENYING PLAINTIFF'S SECOND ) MOTION TO COMPEL PRODUCTION OF ) DOCUMENTS ) (Doc. 49.)

I. RELEVANT PROCEDURAL HISTORY

Richard S. Kindred ("Plaintiff"), a civil detainee at Coalinga State Hospital ("CSH") in Coalinga, California, is proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on September 5, 2008. (Doc. 1.) This case now proceeds on the original Complaint, against defendants Barbara Devine and Linda Fields, for money damages, for the violation of Plaintiff's rights to freely exercise his religion under the First Amendment.*fn1

On October 20, 2011, the Court issued a Scheduling Order establishing a deadline of June 20, 2012, for the parties to complete discovery, including the filing of motions to compel. (Doc. 38.) On May 30, 2012, the Court issued an order extending the discovery deadline to October 15, 2012. (Doc. 45.) On August 20, 2012, Plaintiff filed a second motion to compel production of documents from defendant Devine ("Defendant").*fn2 (Doc. 49.) On September 20, 2012, Defendant filed an opposition to the motion. (Doc. 53.) Plaintiff's second motion to compel is now before the Court.

II. PLAINTIFF'S ALLEGATIONS AND CLAIMS

A. Plaintiff's Allegations against defendants Devine and Fields

At the time of the events at issue, Plaintiff was housed at CSH, defendant Barbara Devine was the Program Director for Program One at CSH, and defendant Linda Fields was a member of the Level of Care Staff at CSH. Plaintiff alleges that defendant Devine denied him permission "to order a prayer rug, even though [prayer rugs] are not considered contraband by the hospital and other patients at the hospital have them." (Cmpl., Doc. 1 at 3-4 ¶IV.) Plaintiff alleges that "this action [permission to order prayer rug] was denied by defendant Barbra DeVine, who was the Program Director for Program One." Id. at 4. Plaintiff also claims that one of his spiritual books was damaged, alleging that "this was done by defendant Linda Fields, level of care staff and fully supported by her supervisors, who as of date have not taken any action to replace or compensate plaintiff for the cost of the book." Id.

B. Plaintiff's First Amendment Claim - Civil Detainee

The First Amendment to the United States Constitution provides that "Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof . . . ." U.S. Const. amend. I. Prisoners "retain protections afforded by the First Amendment," including the free exercise of religion. O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987). "Under the Constitution, 'reasonable opportunities must be afforded to all prisoners to exercise the religious freedom guaranteed by the First and Fourteenth Amendments.'" Pierce v. County of Orange, 526 F.3d 1190, 1209 (9th Cir. 2008) (quoting Cruz v. Beto, 405 U.S. 319, 322 n. 2, 92 S.Ct. 1079 (1972) (addressing the rights of convicted prisoners)). "[C]ivil detainees retain greater liberty protections than individuals detained under criminal process . . . ." Jones v. Blanas, 393 F.3d 918, 932 (9th Cir. 2004) (citations omitted). "However, as with other First Amendment rights in the inmate context, detainees' rights may be limited or retracted if required to 'maintain [ ] institutional security and preserv[e] internal order and discipline.' " Pierce, 526 F.3d at 1209 (quoting Bell v. Wolfish, 441 U.S. 520, 549, 99 S.Ct. 1861 (1979); citing see, e.g., Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997)).

"Restrictions on access to 'religious opportunities' . . . must be found reasonable in light of four factors: (1) whether there is a 'valid, rational connection' between the regulation and a legitimate government interest put forward to justify it; (2) 'whether there are alternative means of exercising the right that remain open to prison inmates;' (3) whether accommodation of the asserted constitutional right would have a significant impact on guards and other inmates; and (4) whether ready alternatives are absent (bearing on the reasonableness of the regulation)." Pierce, 526 F.3d at 1209 (quoting Turner v. Safley, 482 U.S. 78, 89-90, 107 S.Ct. 2254 (1987); citing see also Beard v. Banks, 548 U.S. 521, 126 S.Ct. 2572 (2006); and citing Mauro v. Arpaio, 188 F.3d 1054, 1058-59 (9th Cir.1999) (en banc)). "Further, [when] dealing with [civil] detainees, to satisfy substantive due process requirements the restriction or regulation cannot be intended to serve a punitive interest." Pierce, 526 F.3d at 1209 (citing Bell, 441 U.S. at 535, 99 S.Ct. 1861).

III. MOTION TO COMPEL

A. Federal Rules of Civil Procedure 26(b), 34, and 37(a)

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.*fn3 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, 81 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.).

A. Plaintiff's Second Motion to Compel

Plaintiff seeks an order compelling Defendant to produce documents in response to Plaintiff's Request for Production of Documents, Set One, Nos. 1, 2, 3, 5, and 6.

Defendant argues that because she has produced non-privileged documents in response to Kindred's Request, and Plaintiff has access to a law library for other sought documents, the motion to compel should be denied. Plaintiff propounded the Request upon Defendant on May 14, 2012, and Defendant provided a written response on June 28, 2012. (Declaration of Lisa Tillman ("Tillman Decl.") ¶2.) On September 20, 2012, Defendant produced additional documents in response to Plaintiff's Requests No. 1 and 3. (Id. ¶¶6, 7.)

The Court shall separately address each of the Requests at issue. > REQUEST FOR PRODUCTION (RFP) NO. 1:

Produce any and all documents submitted to Ms. M. Joya, then Unit Supervisor of Unit 11 and/or Ms. Barbara Devine, the Program Director of Program 1, from January 1, 2008, to December 31, 2008, to request to order a prayer rug. > RESPONSE TO RFP NO. 1:

Objections: attorney client privilege, attorney work product privilege, vague, ambiguous, equally available to plaintiff, deliberative process privilege, compound, and, to the extent this request seeks the documents, if any, submitted by other patients, the statutory and constitutional right to privacy.

Without waiving said objections, responding party identifies the documents presented by plaintiff and attached to his complaint, dated September 2008, in this matter:

Complaint form, dated November 10, 2007, C000543-90 (Complaint, p. 6 of 21)

Memorandum from Protection and Advocacy Inc., dated December 4, 2007 (Complaint, p. 7 of 21)

Memorandum from Plaintiff to Norm Kramer, dated December 12, 2007 (Complaint, p. 9 of 21)

Memorandum from Plaintiff to Norm Kramer, dated December 30, 2007 (Complaint, p. 11 of 21)

Memorandum from Protection and Advocacy Inc., dated March 4, 2008 (Complaint, p. 12 of 21)

Memorandum from Plaintiff to Pamela Ahlin, dated April 8, 2008 (Complaint, p. 13 of 21)

Memorandum from Protection and Advocacy Inc., dated April 28, 2008

(Complaint, p. 14 of 21)

Letter from Pamela Ahlin to Kindred, dated April 18, 2008 ...


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