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Ronald F. Martinez v. Kathleen Allison

March 25, 2013

RONALD F. MARTINEZ, PLAINTIFF,
v.
KATHLEEN ALLISON, ET AL., DEFENDANTS.



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

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTIONS TO COMPEL ECF Nos. 31, 40

I. Background

Plaintiff Ronald F. Martinez ("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 action pursuant to 42 U.S.C. § 1983. This action is proceeding against 1) Defendants Vasquez, T. Wan, C. Moreno, R. Tolsen, B. Peterson, Clark, Allison, R. Diaz, S. Sherman, and Does 1 through 10 for deliberate indifference in violation of the Eighth Amendment for deprivation of exercise and 2) Vasquez, Moreno, Tolsen, Peterson, Clark, Allison, Diaz, Sherman, A. Hernandez, Gomez, and Does 1 through 10 for violation of the Equal Protection Clause of the Fourteenth Amendment.

On November 19, 2012, and January 7, 2013, Plaintiff filed motions to compel. ECF Nos. 31, 40. On December 10, 2012, and January 25, 2013, Defendants filed their opposition. ECF Nos. 34, 43. On January 9, 2013 and February 8, 2013, Plaintiff filed his reply. ECF Nos. 41, 46. The matter is submitted pursuant to Local Rule 230(l).

II. November 19, 2012 Motion to Compel

Plaintiff moves to compel the production of documents in response to his request for 3 production of documents, set one.*fn1 In responding to discovery requests, defendants must produce 4 documents or other tangible things which are in their "possession, custody or control." Fed. R. Civ. 5 P. 34(a). Responses must either state that inspection and related activities will be permitted as 6 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."). 2

Request No. 6: 3

"Please produce the documents from CDCR relating to the use of color-coded bed cards in prison control booth tower/housing unit office's depicting inmate's race/ethnicity." 5

Response: 6

"Objection. The request is overly broad, and vague and ambiguous with respect to the terms "the documents from CDCR," "relating to the use of color-coded bed cards," and "depicting 8 inmate's race/ethnicity." In addition, the request calls for information that is not relevant or 9 calculated to lead to the discovery of admissible evidence. Defendants further object that the request is unduly burdensome in that it would cause them to incur substantial expense searching for documents that are irrelevant, or only marginally relevant, to the claims at issue in this case. Without waiving these objections, Defendants respond as follows:

Defendants are not aware of, and do not have in their possession, custody, or control, any documents responsive to this request."

Analysis:

Plaintiff contends that the request is highly relevant because the classification of inmates by their "disruptive group" is the basis of Plaintiff's claim. However, Defendants contend that they are not aware of any documents that pertain to Plaintiff's request.

The requested documents would be reasonably calculated to lead to the discovery of admissible evidence. However, Defendants cannot be compelled to produce documents of which they are unaware. Thus, Plaintiff's motion to compel further response to Request for Production of Documents No. 6 is denied.*fn2

Request No. 7:

"Please produce the documents dated between June 2009, through October 2010, instructing 'C' facility officials/staff to place color-coded card(s) above each cell depicting an inmate's race/ethnicity."

Response: 2

"Objection. The request is vague and ambiguous with respect to the specific documents

3 requested. In addition, the request calls for information that is not relevant or calculated to lead to 4 the discovery of admissible evidence. Defendants further object that the request is unduly 5 burdensome in that it would cause them to incur substantial expense searching for documents that 6 are irrelevant, or only marginally relevant, to the claims at issue in this case. Without waiving these 7 objections, Defendants respond as follows: 8

Defendants are not aware of, and do not have in their possession, custody, or control, any

9 documents responsive to this request." Analysis:

The requested documents would be reasonably calculated to lead to the discovery of admissible evidence. However, Defendants cannot be compelled to produce documents of which they are unaware. Thus, Plaintiff's motion to compel further response to Request for Production of Documents No. 7 is denied.

Request No. 8:

"Please produce the documents from CDCR, SATF, and/or the California Correctional Peace Officer Association (CCPOA) authorizing, permitting correctional officer's to have BAR-B-Q's, pot ...


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