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Carter v. Dawson

United States District Court, E.D. California

August 29, 2014

LON CARTER, Plaintiff,
v.
NICK DAWSON, et al., Defendants.

FINDINGS AND RECOMMENDATIONS REGARDING: (1) PLAINTIFF'S MOTION TO POSTPONE CONSIDERATION OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; (2) PLAINTIFF'S SECOND MOTION TO COMPEL; (3) PLAINTIFF'S MOTION TO STRIKE J. BUCK'S DECLARATION; (4) PLAINTIFF'S MOTION TO STRIKE L. HANSEN'S DECLARATION; (5) PLAINTIFF'S MOTION TO STRIKE DEFENDANTS' SUBMITTED WEATHER REPORTS; (6) DEFENDANTS' MOTION TO STRIKE; AND (7) DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF NOS. 119, 152, 160, 163, 164, 165, 168)

BARBARA A. McAULIFFE, Magistrate Judge.

I. Procedural Background[1]

Plaintiff Lon Carter ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds against Defendants Dawson and Mendoza-Powers for unconstitutional conditions of confinement in violation of the Eighth Amendment.

On September 15, 2011, Defendants filed a motion for summary judgment. (ECF No. 119.) On October 6, 2011, Plaintiff requested an extension of time to file an opposition to Defendants' motion for summary judgment. (ECF No. 121.) On October 12, 2011, the Court granted Plaintiff thirty days to file a response to the motion for summary judgment. (ECF No. 122.)

Plaintiff did not file an opposition. Instead, Plaintiff filed a "motion to show cause" regarding the relevance of Exhibit D to the Declaration of Lonnie Hansen in support of Defendants' motion for summary judgment. (ECF No. 124.) Plaintiff also filed a motion for the appointment of an expert witness. (ECF No. 126.) The Court denied the motion for expert witness on November 28, 2011. (ECF No. 127.)

On December 22, 2011, based on Plaintiff's failure to file an opposition, the Court issued an order to show cause why the action should not be dismissed with prejudice for failure to obey the Court's order. The Court granted Plaintiff fifteen days to respond to the order and warned Plaintiff that his failure to respond would result in dismissal of the action with prejudice. (ECF No. 129.) Plaintiff did not respond to the order to show cause or otherwise contact the Court.

On February 6, 2012, more than forty-five (45) days after issuing the show cause order, the Court dismissed the action, with prejudice, for Plaintiff's failure to comply with court orders and failure to prosecute this action. (ECF No. 130.) The Clerk of the Court entered judgment and the action was closed. (ECF No. 131.)

On February 21, 2012, Plaintiff filed a notice of appeal, which was processed to the Ninth Circuit Court of Appeals. Plaintiff claimed that he had never received the Court's December 22, 2011, dismissal notice. (ECF Nos. 132, 133.) On May 9, 2012, the Ninth Circuit Court of Appeals denied Plaintiff's motion to proceed in forma pauperis based on a finding that the appeal was frivolous. (ECF No. 136.) Plaintiff paid the appellate fees on May 30, 2012. (ECF No. 137.) Thereafter, on August 7, 2012, the Ninth Circuit summarily affirmed this Court's judgment. (ECF No. 138.)

Plaintiff sought reconsideration of the Ninth Circuit's decision. The reconsideration request reportedly contained new evidence indicating that Plaintiff did not receive this Court's December 22, 2011 order to show cause. The Ninth Circuit directed defendants-appellees to file and serve a response to the motion for reconsideration. (ECF No. 139.) On January 3, 2013, the Ninth Circuit denied Plaintiff's motion for reconsideration without prejudice to the filing of a motion for relief from judgment with the district court pursuant to Fed.R.Civ.P. 60(b). (ECF No. 140.)

Following the Ninth Circuit's denial of his request for reconsideration, Plaintiff filed a motion for relief from the dismissal judgment pursuant to Federal Rule of Civil Procedure 60(b) on February 11, 2013. (ECF No. 141.) Defendants opposed the motion on March 4, 2013, and Plaintiff replied on March 22, 2013. (ECF Nos. 142, 143.) On August 16, 2013, the District Court granted Plaintiff's motion for relief from judgment, vacated entry of final judgment and reopened this matter. The Court directed Plaintiff to file an opposition to Defendants' motion for summary within thirty (30) days. (ECF No. 145.) By separate order, the District Court notified Plaintiff of the requirements for opposing Defendants' motion for summary judgment pursuant to Woods v. Carey , 684 F.3d 934 (9th Cir. 2012), Rand v. Rowland , 154 F.3d 952 (9th Cir. 1998), and Klingele v. Eikenberry , 849 F.2d 409 (9th Cir. 1988). (ECF No. 144.)

On September 17, 2013, Plaintiff filed his opposition to Defendants' motion for summary judgment. (ECF Nos. 146-150.) Plaintiff also filed a motion to postpone consideration of Defendants' motion for summary judgment. (ECF Nos. 151, 152.)

On October 8, 2013, Defendants opposed the motion to postpone consideration of the motion for summary judgment. (ECF No. 155.) Plaintiff replied to Defendants' opposition on October 25, 2013. (ECF No. 158.)

On October 29, 2013, Defendants replied to Plaintiff's opposition to the motion for summary judgment. (ECF No. 159.) Defendants also filed objections to Plaintiff's evidence and a motion to strike. (ECF No. 160.)

On November 18, 2013, Plaintiff filed a motion to strike J. Buck's declaration and a motion to strike L. Hansen's declaration. (ECF Nos. 163, 164.) Plaintiff also filed a second motion to compel. (ECF No. 165.)

On November 20, 2013, the Court granted Plaintiff an extension of time solely to respond to Defendants' motion to strike. (ECF No. 166.)

On November 22, 2013, Plaintiff filed a surreply in response to Defendants' reply in support of the motion for summary judgment. (ECF No. 167.)

On November 25, 2013, Plaintiff filed a motion to strike Defendants' submitted weather reports. (ECF No. 168.) Plaintiff also filed an opposition to Defendants' evidentiary objections and motion to strike. (ECF No. 169.) On December 20, 2013, Defendants filed a reply to Plaintiff's opposition, which included a response to Plaintiff's motion to strike Defendants' submitted weather report. (ECF No. 173.) On August 22, 2014, the Court denied Plaintiff's request to file a reply to Defendants' reply. (ECF No. 177.)

Currently pending before the Court are the following motions: (1) Defendants' motion for summary judgment filed on September 15, 2011; (2) Plaintiff's motion to postpone consideration of Defendants' motion for summary judgment filed on September 17, 2013; (3) Plaintiff's motion to strike J. Buck's declaration filed on November 18, 2013; (4) Plaintiff's motion to strike L. Hansen's declaration filed on November 18, 2013; (5) Plaintiff's second motion to compel filed on November 18, 2013; (6) Plaintiff's motion to strike Defendants' submitted weather reports filed on November 25, 2013; and (7) Defendants' motion to strike. The motions are deemed submitted. Local Rule 230(l).

II. Plaintiff's Motion to Postpone Consideration of Defendants' Motion for Summary Judgment

Plaintiff moves to postpone consideration of Defendants' motion for summary judgment on the ground that he needs to conduct or obtain additional discovery pursuant to Federal Rule of Civil Procedure 56(d). In particular, Plaintiff seeks discovery of the following: (1) evidence related to when he obtained his right shoulder blade tattoo; (2) a master record maintained by the California Department of Justice, known as a CLETS report; and (3) a complete copy of Avenal State Prison Operational Procedure #68. (ECF Nos. 151, 152.)

A. Legal Standard

"If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order." Fed.R.Civ.P. 56(d). Plaintiff bears the burden of specifically identifying relevant information, where there is some basis for believing that the information actually exists, and demonstrating that the evidence sought actually exists and that it would prevent summary judgment. Blough v. Holland Realty, Inc. , 574 F.3d 1084, 1091 n.5 (9th Cir. 2009) (quotation marks and citation omitted); Tatum v. City and County of San Francisco , 441 F.3d 1090, 1100-01 (9th Cir. 2006). Additionally, Plaintiff must make some showing of diligence, that he sought the requested information during the discovery period, or that there is good reason he has not been able to obtain the information before now. See Landmark Dev. Corp. v. Chambers Corp. , 752 F.2d 369, 372 (9th Cir. 1985).

B. Discussion

As a preliminary matter, the Court finds that Plaintiff has not demonstrated diligence in seeking the requested discovery. Discovery in this matter closed in April 2010, and Defendants did not file their motion for summary judgment until September 15, 2011. (ECF Nos. 18, 119.) Subsequently, and as noted above, the Court initially dismissed this matter in February 2012 because Plaintiff failed to file a substantive opposition to Defendants' summary judgment motion. The record reflects that Plaintiff did not seek additional discovery or extension of the discovery deadline at any point between the close of discovery in April 2010 and the initial dismissal of this matter in February 2012. Plaintiff does not explain the delay.

Tattoo Evidence and CLETS report

In their statement of undisputed facts, Defendants assert that Plaintiff obtained a tattoo on his right shoulder blade between the time of his arrest for which he was serving time at Avenal State Prison and August 19, 2011. (ECF No. 119-2, DUF 31, 32.) To support this assertion, Defendants cite the Declaration of L. Hansen. L. Hansen's declaration is based on (1) a California Department of Justice master record of information pertaining to the identification and criminal history of any person (a CLETS report), which included a confidential criminal investigation report identifying Plaintiff's tattoos at the time of his arrest; and (2) a memorandum dated August 19, 2011, authored by G. Cortez, an Assistant Institutional Gang Investigator. (ECF No. 119-6; Defs' Ex. D, Hansen Dec. ¶¶ 3-4 and Attachment A; ECF No. 119-1, p. 7, n. 2.)

Plaintiff requests to postpone consideration of the motion for summary judgment so that he may obtain a copy of the CLETS report and a copy of the confidential criminal investigation record maintained by the California Department of Justice regarding the number of tattoos he had according to his 1989 parole release records and before his current 1994 prison commitment. (ECF No. 151, p. 1.) Plaintiff reportedly requires this information to demonstrate that he had a right shoulder blade tattoo before his current 1994 prison commitment. (ECF Nos. 151, p. 1; 152, p. 3.)

Plaintiff does not require additional discovery to introduce evidence of when he got a right-shoulder blade tattoo. Plaintiff is competent to provide sworn testimony regarding his own tattoo in opposing the motion for summary judgment. Fed.R.Civ.P. 56(c)(4) (permitting use of an affidavit or declaration to oppose a motion for summary judgment made on personal knowledge, setting forth admissible facts and showing the declarant is competent to testify). Plaintiff admits that he has personal knowledge of his body and the tattoos. (ECF No. 151, p. 2.) Moreover, with regard to the CLETS report, Plaintiff could have obtained his own criminal history information from the California Department of Justice pursuant to California Penal Code §§ 11121 et seq. at any point during the pendency of this case and before submitting his opposition. Plaintiff acknowledges that these records are maintained by the California Department of Justice and are not limited by his discovery of documents from the California Department of Corrections and Rehabilitation. (ECF No. 151, p. 1.)

The Court therefore finds that postponing consideration of the motion for summary judgment is not necessary to allow Plaintiff to obtain evidence of when he got his own tattoos. Plaintiff already is able to provide such evidence essential to justify his opposition. Further, evidence of when Plaintiff received his tattoos is not dispositive of the issues in this matter and the Court has not relied on such evidence in its Findings and Recommendations.

Operational Procedure #68

With regard to Operational Procedure #68, Plaintiff admits that when he was served with discovery responses, he only received four of seven pages of the plan. (ECF No. 152, p. 4.) Plaintiff does not explain why he failed to complain about his dissatisfaction with the discovery response earlier in this matter. More importantly, the four pages received by Plaintiff are the same four pages relied upon by Defendants in support of their motion for summary judgment. (ECF No. 119-5, Defs' Ex. C, Attachment 1, at pp. 5-8.) The Court also notes that Defendants supplied Plaintiff with a complete copy of Operational Procedure #68 on October 29, 2013. (ECF No. 161.) Although this occurred after Plaintiff filed his opposition, Plaintiff received a complete copy of the procedure before he filed his, albeit unauthorized, surreply in opposition to the motion for summary judgment on November 22, 2013. (ECF No. 167.) The Court has not stricken Plaintiff's surreply from the record, but has limited its consideration of the surreply solely to issues pertaining to Operational Procedure #68.

The Court therefore finds that postponing consideration of the motion for summary judgment is not warranted to allow Plaintiff to obtain a complete copy of Operational Procedure #68.

For the reasons stated, the Court will recommend that Plaintiff's motion to postpone consideration of Defendants' motion for summary judgment be DENIED.

III. Plaintiff's Second Motion to Compel

Pending before the Court is Plaintiff's motion to compel further responses to his Requests for Production of Documents Nos. 2 and 3 filed on November 18, 2013. (ECF No. 165, p. 1.) The deadline for completion of discovery and the filing of any motion to compel was April 26, 2010. (ECF No. 18.) Plaintiff's motion to compel is untimely and may be denied on this basis. See, e.g., Mitchell v. Cate , 2014 WL 1671589, *2 (E.D. Cal. Apr. 28, 2014) (denying prisoner's motion to compel filed after discovery deadline as untimely); Doria v. Nappi, 2013 WL 5597178, *1 (E.D. Cal. Oct. 11, 2013) (denying prisoner's motion to compel filed after deadline in court's scheduling order as untimely); Rasberry v. Trevino, 2012 WL 734141, *1 (E.D. Cal. Mar. 6, 2012) (denying motion to compel filed after discovery deadline as untimely).

Additionally, the Court previously denied Plaintiff's repeated attempts to compel further responses to his Requests for Production of Documents Nos. 2 and 3. On June 23, 2010, Plaintiff filed a motion to compel the production of documents. (ECF No. 50.) On November 1, 2010, the Court denied Plaintiff's motion to compel the production of additional documents with respect to requests 2 and 3. (ECF No. 79, p. 4.) Plaintiff filed a subsequent motion to compel the production of documents in February 2011. (ECF Nos. 85, 92.) On May 10, 2011, the Court again denied Plaintiff's motion to compel the production of documents with respect to requests 2 and 3. (ECF No. 105, pp. 5-6.)

Notwithstanding the above, as Plaintiff is a prisoner proceeding pro se, the Court will consider the substance of his motion to compel and, although untimely, will construe it as motion for additional discovery pursuant to Federal Rule of Civil Procedure 56(d).

Plaintiff's "request No. 2" seeks "documents for the facility six yard 650 housing unit building for the twelve months for the complete year of 2006." (ECF No. 165, p. 1.) Plaintiff's "request No. 3" seeks "the attendance documents of each and every officer, sergeant, and Lieutenant for days, grounds hazard check list narrative, and discrepencies [sic] inspection documents verifying their attendance for the days, weeks, months, of the signed documents." (ECF No. 165, p. 1.)

Plaintiff contends that Defendants previously stated that they could not locate any documents responsive to these requests, but have now submitted J. Buck's declaration in which he declares that "he has personally observed administrative staff visiting the housing units" and "inspecting the housing units." (ECF No. 165, p. 2.) Plaintiff believes that Defendants should be compelled to provide documents supporting J. Buck's declaration that he personally witnessed administrative staff visiting and inspecting the housing units. (Id.)

In the relevant declaration, J. Buck declares, "I have personally observed administrative staff visiting the housing units." (ECF No. 119-3, Defs' Ex. A, Buck Dec. ¶ 9.) J. Buck does not declare that he personally witnessed any inspections. It is unclear what documents Plaintiff believes exist to support J. Buck's declaration of personally witnessing administrative staff visiting the housing units. Indeed, Plaintiff fails to demonstrate that the evidence he seeks actually exists. Blough , 574 F.3d at 1091 n.5; Tatum , 441 F.3d at 1100-01. The Court therefore finds it inappropriate to order further discovery pursuant to Rule 56(d) or to compel the production of documents.

For the reasons discussed above, the Court will recommend that Plaintiff's second motion to compel be DENIED.

IV. Plaintiff's Motion to Strike J. Buck's Declaration

Plaintiff moves to strike J. Buck's declaration in its entirety for reasons nearly identical to those supporting his second motion to compel. Specifically, Plaintiff moves to strike J. Buck's declaration because Defendants rely on J. Buck's statement that he personally observed administrative staff visiting the housing units, but Defendants failed to produce any documents responsive to his document production requests Nos. 2 and 3. (ECF No. 163, pp. 1-2.) Plaintiff states that request No. 2 "was for discrepencies [sic] found during inspection documents, for the facility six yard 650 housing unit building for the twelve months, for the complete year of 2006." (Id. at 2.) Plaintiff states that request No. 3 "was for the attendance of each and every officer, sergeant, and lieutenant, for days, grounds hazard checklist narrative, and discrepencies [sic] inspection documents verifyi[ng] their attendance for the days, weeks, months, of the signed documents." (Id.)

Plaintiff argues that "if the documents identifying the staff members cannot be located, then Defendants cannot say they have supporting inspection documents to support J. Buck's declaration, that he personally witnessed the appropriate administrative staff inspecting the housing unit..., or that the declarant J. Buck personally observed administrative staff visiting the housing units." (Id.) Plaintiff contends that Defendants either have documents identifying the staff J. Buck personally witnessed conducting the inspections or that Defendants deliberately have withheld documents verifying that the inspections were conducted.

As discussed above, J. Buck declares, "I have personally witnessed administrative staff visiting the housing units." (ECF. No. 119-3, Defs' Ex. A, Buck Dec. ¶ 9.) J. Buck's declaration is based on personal knowledge and may properly be considered for purposes of summary judgment. Fed.R.Civ.P. 56(c)(4); see, e.g., Sherman v. Aguilar, 2012 WL 1107752, *3 (S.D. Cal. Apr. 2, 2012) (denying motion to strike declaration that complied with Rule 56(c)(4).) It is unclear what documents Plaintiff believes exist to support a statement based on personal knowledge. J. Buck also does not declare that he personally observed staff conducting inspections. Thus, Defendants cannot be faulted for their purported failure to produce documents identifying the staff conducting the inspections or documents verifying that inspections were conducted.

Plaintiff has provided no basis to strike the declaration of J. Buck and the Court will recommend that ...


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