United States District Court, E.D. California
EDDIE L. PITTS, Plaintiff,
C. DAVIS, et al., Defendants.
ALLISON CLAIRE, Magistrate Judge.
Plaintiff, a state prisoner proceeding pro se, has filed an action pursuant to 42 U.S. § 1983. Pending before the court are several motions brought by plaintiff: (1) a motion for a court order authenticating the exhibits attached to the complaint (ECF No. 63); (2) a motion for an order granting a subpoena duces tecum, production of documents and service of the subpoena by the United States Marshal on non-party Warden Gary Swarthout or an acting warden (ECF No. 76); (3) a motion to compel discovery (ECF No. 87), opposed by defendant Kiesz (ECF No. 89); (4) a separate motion to compel discovery (ECF No. 91), opposed by defendant Braunger (ECF No. 94) with a reply from plaintiff (ECF No. 100); and (5) a motion for appointment of counsel and to re-open discovery (ECF No. 111), opposed by defendant Kiesz (ECF No. 114).
Plaintiff brought this action against multiple health care providers and prison administrators. Claims and defendants were dismissed from plaintiff's original complaint with leave to amend. Upon the filing of a first amended complaint, three defendants were dismissed but service of the amended complaint was found appropriate as to thirteen defendants at California State Prison-Solano. ECF Nos. 14, 15, 17. Defendants thereafter brought a motion to dismiss (ECF No. 24), and on November 21, 2013, defendants Austin, Morgan, Mefford, McAlpine, Trujillo, Davis, Fleischman and Villanueva (de la Vega) were dismissed. See ECF No. 40 (Findings and Recommendations), ECF No. 66 (Order adopting Findings and Recommendations). Also dismissed (as administratively unexhausted) was plaintiff's claim against defendants Braunger and Kiesz, both nurses, regarding their alleged failure to provide timely access to a primary care physician. Id . The action thereafter proceeded on plaintiff's Eighth Amendment claims against defendants Fontillas, Froland and Boughn,  and on the specific claim against defendants Braunger and Kiesz of deliberate indifference to plaintiff's medical needs relating to the delay in providing plaintiff with his prescribed medication. Id.
Defendants Fontillas and Froland then brought separate motions to dismiss on grounds of unexhausted administrative remedies, and, as to defendant Froland, also for failure to state a claim. ECF Nos. 36, 46. Plaintiff's claim against defendant Fontillas based on the November 24, 2010 interview was dismissed; the motion was, however, denied as to plaintiff's claim that Fontillas was deliberately indifferent to plaintiff's serious medical needs by failing to provide timely access to a primary care physician. ECF No. 97 (Order adopting in part the January 3, 2014 Findings and Recommendations, ECF No. 79). In addition, pursuant to the court's sua sponte screening obligations, plaintiff's claim that defendant Fontillas was deliberately indifferent to his serious medical needs by failing to ensure timely receipt of pain medication in March 2011was dismissed. Id . Defendant Froland's motion to dismiss, ECF No. 46, was granted in part and plaintiff's claim that defendant Froland was deliberately indifferent to plaintiff's serious medical needs by failing to ensure timely receipt of pain medication in February 2011 was dismissed, but the motion was otherwise denied and plaintiff permitted to proceed on his claim that defendant Froland was deliberately indifferent by failing to provide timely access to a primary care physician. Id . Defendants Fontillas and Froland filed their answer on May 27, 2014. ECF No. 101.
In sum, this action presently proceeds on plaintiff's claims that: (1) defendants Braunger and Kiesz were deliberately indifferent to plaintiff's medical needs relating to the delay in providing plaintiff with his prescribed medication; and (2) defendants Fontillas and Froland were deliberately indifferent to plaintiff's serious medical needs by failing to provide timely access to a primary care physician.
ALLEGATIONS OF THE FIRST AMENDED COMPLAINT
On November 11, 2010 at California State Prison-Solano (CSP-Sol), plaintiff received an emergency medical evaluation for a sports injury to his left shoulder and collarbone. Plaintiff was x-rayed and provided a shoulder brace, neck brace and pain medications, and a follow-up appointment with his primary care physician (PCP) was scheduled. Over the next several months, plaintiff was repeatedly thwarted in his attempts to be seen by his PCP and to receive the medication he required for his injury and for his chronic headaches, as well as treatment for an allergy-related rash that developed into sores. Plaintiff submitted numerous health care services request forms complaining of severe pain and unfilled prescriptions for Ibuprofen and allergy medications. In response to these requests, he was seen on several occasions by nurses who failed to ensure that he saw a doctor or obtained his medications. The details are as follows:
On November 24, 2010, defendant Registered Nurse (RN) Fontillas interviewed plaintiff in response to his request for medical assistance dated November 22, 2010. Fontillas reviewed plaintiff's vital signs but did not conduct a physical examination regarding the issues presented in plaintiff's medical request, which included back, chest and shoulder pain, a problem with a nerve in the neck, and difficulty sleeping. First Amended Complaint (FAC) (ECF No. 13) at 6. Instead, Fontillas stated: "You are already scheduled to see your PCP therefore, you can address your medical problems to the d[octo]r at that time." She also told him that if his situation became worse, he could submit another medical request form. Plaintiff informed defendant Fontillas that the Ibuprofen he had been prescribed for pain for an unrelated condition had not been provided by the prison pharmacy. Defendant Fontillas did not contact the pharmacy or take any other action at the time, releasing plaintiff back to his unit. Plaintiff's prescription was not delivered to him and he was not seen by the PCP, resulting in severe pain. As a result, on December 8, 2010, plaintiff submitted a second CDCR Form 7362 (request for medical assistance). FAC at 6-7, 24-25.
On December 10, 2010, plaintiff was interviewed by defendant RN Braunger, in an encounter that began and ended with Braunger's statement: "I checked and your Ibuprofen was given to you." At that point, plaintiff had been in extreme pain for about twenty-five days without even having the Ibuprofen which had been prescribed for a prior medical condition. Defendant Braunger did not provide any of the medical care needed. FAC at 6, 25.
On January 4, 2011, plaintiff submitted a CDCR Form 7362 to the CSP-Sol medical department requesting "kitchen clearance" for a job assignment and renewal of his prescribed Ibuprofen. On January 6, 2011, defendant RN Kiesz conducted a medical interview with plaintiff during which plaintiff requested assistance securing treatment for his shoulder injuries and receipt of his prescribed Ibuprofen. Defendant Kiesz responded that s/he saw nothing in plaintiff's medical file regarding any injury reports, and that pursuant to "our policy, " only the request written on the (current) 7362 request would be addressed. No medical assistance for plaintiff's shoulder injury and pain was provided by this defendant. FAC at 7-8, 25-26.
On January 29, 2011, plaintiff submitted a standard form requesting his prescription medication but none was provided. Therefore, on February 10, 2011, he submitted another CDCR 7362 form to the medical department complaining that (1) his prescribed medications had not been delivered; (2) his shoulder pain was causing neck pain; (3) his untreated allergy rash had progressed to becoming sores. On February 14, 2011, defendant RN Froland interviewed plaintiff regarding this complaint. She resubmitted his medication prescription to the pharmacy by fax and told him: "You are already scheduled to see your PCP in a week. You can discuss your injuries further with him." Defendant Froland provided him no further medical assistance at that time.
Plaintiff remained in extreme pain, continued to have difficulty sleeping, experienced the spreading of itching sores, as well as pounding headaches. He did not receive his prescribed medications and submitted another CDCR Form 7362 about his medical complaints on March 20, 2011. ECF No. 13 at 9. Plaintiff claims that Froland's failure to conduct a physical examination, make a medical assessment, and notify the appropriate medical staff about the delay in plaintiff's receipt of his medication amounted to, inter alia, deliberate indifference. Id. at 26.
On March 22, 2011, in response to the March 20th Form 7362, plaintiff was again interviewed by defendant Fontillas, who resubmitted plaintiff's medication prescription to the pharmacy by fax and also relayed the prescription to pharmacy personnel by phone in plaintiff's presence. Plaintiff received no other medical assistance at this time. Plaintiff alleges that he had gone without his prescription(s) for seventy-seven days at this point. He finally received his allergy medication on March 25, 2011 and received relief within two to three days after taking the medication. ECF No. 13 at 9-10.
PLAINTIFF'S MOTIONS TO COMPEL
I. Overview of the Discovery Disputes
Plaintiff has filed two motions to compel production of documents, the first with regard to defendant Kiesz (ECF No. 87) and the second directed to defendant Braunger (ECF No. 91). The requests for production of documents (RFPs) served upon these two defendants were identical. Plaintiff seeks compelled responses to all of his requests for production from defendant Kiesz, who provided no document production. Plaintiff seeks further production from defendant Braunger in relation to RFPs Nos. 1-7 and 9-11.
II. Standards Governing Discovery
The scope of discovery under Fed.R.Civ.P. 26(b)(1) is broad. Discovery may be obtained as to "any nonprivileged 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." Id . Discovery may be sought of relevant information not admissible at trial "if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id . The court, however, may limit discovery if it is "unreasonably cumulative or duplicative, " or can be obtained from another source "that is more convenient, less burdensome, or less expensive"; or if the party who seeks discovery "has had ample opportunity to obtain the information by discovery"; or if the proposed discovery is overly burdensome. Fed.R.Civ.P. 26(b)(2)(C)(i), (ii) and (iii).
Where a party fails to produce documents requested under Rule 34 of the Federal Rules of Civil Procedure, the party seeking discovery may move for compelled disclosure. Fed.R.Civ.P. 37. The party seeking to compel discovery has the burden of establishing that its request satisfies the relevancy requirements of Rule 26(b)(1). The party opposing discovery then has the burden of showing that the discovery should be prohibited, and the burden of clarifying, explaining or supporting its objections, Bryant v. Ochoa , 2009 WL 1390794 at *1 (S.D. Cal. May 14, 2009), and are "required to carry a heavy burden of showing" why discovery should be denied. Blankenship v. Hearst Corp. , 519 F.2d 418, 429 (9th Cir. 1975).
Privileges are narrowly construed because they impede the full and fair discovery of the truth. Eureka Fin. Corp. v. Hartford Acc. & Indem. Co. , 136 F.R.D. 179, 183 (E.D. Cal.1991). Further, the party asserting a privilege has the burden to establish that it applies. See e.g., United States v. O'Neill , 619 F.2d 222, 227 (3rd Cir.1980). Documents that are a part of the personnel records of officers defending civil rights actions, while containing sensitive information, are within the scope of discovery. Soto v. City of Concord , 162 F.R.D. 603, 614-15 (N.D. Cal.1995); Hampton v. City of San Diego , 147 F.R.D. 227, 230-31 (S.D. Cal.1993); Miller v. Pancucci , 141 F.R.D. 292, 296 (C.D. Cal.1992). In civil rights cases brought under federal statutes, questions of privilege are resolved by federal law. Kerr v. U.S. District Court for the Northern District of California , 511 F.2d 192, 197 (9th Cir.1975), aff'd on procedural grounds, 426 U.S. 394 (1976). "State privilege doctrine, whether derived from statutes or court decisions, is not binding on federal courts in these kinds of cases." Kelly v. City of San Jose , 114 F.R.D. 653, 655 (N.D. Cal. 1987).
III. Discussion of Individual Requests for Production of Documents
A. Request for Production No. 1
RFP No. 1: Produce a copy of any and all employment contracts you signed at/with CDCR and CSP-Solano, that govern your employeed [sic] assignment(s)[, ] responsibilities, and obligations. The time frame for this discovery request is the time each defendant became employed by the CDCR and CSP-Solano, to present date.
1. Motion to Compel as to Defendant Kiesz
Defendant Kiesz responded to RFP No. 1 as follows:
Objection. Request is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence, and is vague and ambiguous. Without waiving objections, responding party is not in possession, custody, or control of the requested documents.
ECF No. 87 at 1.
Defendant Kiesz asserts that she is no longer employed by the CDCR and lives outside of California. Kiesz Opposition (Opp.), ECF No. 89 at 2; Declaration of Shanan Hewitt in Support of Kiesz Opp. to Motion to Compel (MTC), ¶ 3. Plaintiff does not take issue with Kiesz's representation that she is not in possession, custody or control of the documents he seeks. Indeed, in his request to have a subpoena served on the warden for the same documents, plaintiff "stipulates" to this. See ECF No. 76 at 2. The court cannot order further production from a party in these circumstances. The motion to compel is denied.
2. Motion to Compel as to Defendant Braunger
Defendant Braunger's Response:
Defendant objects to this request on the grounds that it is overbroad and unduly burdensome. Defendant Braunger does not know when "each defendant became employed by the CDCR and CSP-Solano." The request also seeks contracts which may or may not exist because defendant Braunger may not have been employed at the same time as other defendants. Defendant objects on the grounds that this request seeks information that is not relevant to the claims and defense in this matter and is not likely to lead to the discovery of admissible information. Defendant objects to this request to the extent that it calls for information which inmates are not permitted to possess under California Code of Regulations, title 15, sections 3450(d) and 3321. Defendant objects on the grounds that personnel records are subject to the qualified privilege of official information and federal common law privilege. Pursuant to Sanchez v. Santa Ana , 936 F.2d 1027, 1033-34 (9th Cir. 1991), such broad requests are generally not allowed on federal common law grounds. The confidential nature of employee personnel files prohibit the opening of such files to a plaintiff for a general search which could reach well beyond the legitimate inquiries necessary. Id . Personnel files are also protected by the privacy rights of staff, including federal common-law and applicable California statutes. Subject to and without waiving the foregoing objections, defendant produces her current signed "Duty Statement" attached as Exhibit "H."
ECF No. 91 at 9.
The Duty Statement produced by defendant Braunger is responsive to the request, and further production would be overbroad in relation to plaintiff's claim. The motion is denied on that basis, and the court need not reach the confidentiality and privilege issues asserted by the defendant.
B. Request for Production No. 2
RFP No. 2: Produce a copy of all training records, training programs that defendant attended, completed and received at CSP-Solano related to defendants employeed [sic] professional assignments, responsibilities, obligations, policies, regulations, procedures and practices. This request includes any and all training documents you signed (contracts) with CDCR and CSP-Solano related to this request.
1. Motion to Compel as to Defendant Kiesz
Kiesz's response to RFP Nos. 1-5 and 7-11 is the same: she interposes objections, and goes on to assert that she is not in possession, custody, or control of the documents. See ECF No. 87 at 1-5. Plaintiff does not dispute that Kiesz does not have the documents. Because the court cannot order further production under these circumstances, the motion to compel is denied.
2. Motion to Compel as to Defendant Braunger
Defendant Braunger objects that the request is vague, overbroad, and unduly burdensome. She further objects that the request is compound as it seeks records "regarding training but also seeks records regarding policies, regulations, and procedures." ECF No. 91 at 9. As in her objections to RFP No. 1, defendant Braunger asserts that 15 CCR §§ 3450(d) and 3321 prohibit disclosure, and that her personnel records are protected by the qualified official information privilege, federal common law privilege, and state privacy statutes. Id. at 10. Nevertheless and without waiving the objections, the defendant produced "a redacted In-Service Training' list of training courses she has attended, attached as Exhibit J, '" as well as "redacted copies of available In-Service Training' sign-in sheets, which she signed between November 2009 and January 2012, attached as Exhibit K.'" Id.
The documents produced by defendant Braunger are responsive to the request, and further production would be overbroad in relation to plaintiff's claim. The motion is denied on that basis, and the court need not reach the confidentiality and privilege issues asserted by the defendant.
C. Request for Production No. 3
RFP No. 3: Produce any all documents that relate to policies, procedures and practices in effect January 2011, through March 2011, for CDCR and CSP-Solano medical nurses and staff, regarding the examination[s], evaluation, and diagnosis of prisoner's [sic] as a result of prisoner submitted CDCR Forms "7362.'"
1. Motion to Compel as to Defendant Kiesz
Kiesz again interposes objections, and goes on to assert that she is not in possession, custody, or control of the documents. See ECF No. 87 at 1-5. Plaintiff does not dispute that Kiesz does not have the documents. Because the court cannot order further production under these circumstances, the motion to compel is denied.
2. Motion to Compel as to Defendant Braunger
Defendant Braunger objects on grounds of relevance, vagueness and overbreadth, noting inter alia that "the overbreadth of the request" might call for documents "deemed confidential... the disclosure of which would create a hazard to the safety and security of the institution and prison officials involved in medical care." ECF No. 91 at 11. Without waiving the objections "and assuming plaintiff seeks documents containing the policy, procedures, and practice in effect on December 10, 2010 for registered nurses working at California State Prison-Solano, regarding the examination of prisoners, " defendant produced the following:
California Code of Regulations, title 15, §§ 3350-3359, covering Article 8: Medical and Dental Services, updated through January 1, 2011;
California Department of Corrections and Rehabilitation, Department Operations Manual§§ 91020.1-91090.19, covering Chapter 10: Health Care Services;
California State Prison-Solano, Local Operating Procedure CSPS-MD-10-033: Distribution and Administration of Medication, dated April 2010;
California State Prison-Solano, Local Operating Procedure CSPS-MD-10-058: Transferring Medications with ...