United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S MOTION TO COMPEL AS PROCEDURALLY DEFECTIVE, WITHOUT PREJUDICE TO RENEWAL WITHIN THIRTY DAYS
(Doc. 172.) ORDER DENYING DEFENDANTS' MOTION FOR PROTECTIVE ORDER AS MOOT (Doc.
174.) ORDER DENYING PLAINTIFF'S MOTION FOR SANCTIONS AS MOOT (Doc. 178.) THIRTY
DAY DEADLINE FOR PLAINTIFF TO RENEW MOTION TO COMPEL, AS INSTRUCTED BY THIS
GARY S. AUSTIN, Magistrate Judge
Sergio Alejandro Gamez ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on August 1, 2008. (Doc. 1.)
On November 25, 2008, this case was reassigned to United States District Judge James M. Lorenz, for all further proceedings. (Doc. 8.) On February 19, 2009, Plaintiff filed the First Amended Complaint. (Doc. 11.) On February 26, 2009, the court dismissed the First Amended Complaint for failure to state a claim, with leave to amend. (Doc. 12.) On April 1, 2009, Plaintiff filed the Second Amended Complaint. (Doc. 13.) The court screened the Second Amended Complaint, found it stated cognizable claims, and issued an order on May 7, 2009, directing service of process. (Doc. 14.) On September 1, 2011, the court granted Defendants' motion for summary judgment and entered judgment in favor of Defendants, closing this action. (Docs. 109, 110.)
On September 16, 2011, Plaintiff appealed the district court's judgment to the Ninth Circuit. (Doc. 111.) On July 25, 2012, the Ninth Circuit affirmed in part and vacated in part the district court's judgment, and remanded the case to the district court. (Doc. 116.) On October 12, 2012, District Judge Peter C. Lewis recused himself from further proceedings in this case, and the case was reassigned to District Judge Lawrence J. O'Neill and referred to Magistrate Judge Gary S. Austin. (Docs. 116-118.)
As a result of the Ninth Circuit's decision, Plaintiff's remanded action proceeded on the Second Amended Complaint filed on April 1, 2009, against defendants F. Gonzalez (Warden, CCI), Captain S. Wright, N. Grannis (Chief of Inmate Appeals), K. Berkeler (Senior Special Agent), K. J. Allen (Appeals Examiner), M. Carrasco (Associate Warden, CCI), Lieutenant J. Gentry, and K. Sampson (Appeals Coordinator), on two new issues which were not present in the Second Amended Complaint: (1) Plaintiff's "due process claims concerning his 2010 re-validation as a gang associate, " and (2) Plaintiff's "retaliation claims associated with the 2010 re-validation." (Doc. 116.)
On October 30, 2012, Plaintiff filed a motion for leave to amend the complaint and conduct further discovery. (Doc. 120.) On December 19, 2012, the court granted Plaintiff's motion to amend, for the purpose of addressing the new due process and retaliation claims, and to add new defendants in relation to the new claims. (Doc. 128.) On January 13, 2013, Plaintiff filed the Third Amended Complaint. (Doc. 132.)
The court screened the Third Amended Complaint and entered an order on October 3, 2013, requiring Plaintiff to file a Fourth Amended Complaint, or in the alternative, to notify the court in writing that he is willing to proceed with the claims found cognizable by the court. (Doc. 137.) On November 8, 2013, Plaintiff filed the Fourth Amended Complaint. (Doc. 147.)
This action now proceeds on the Fourth Amended Complaint against defendants K. Holland (Warden, CCI), F. Gonzalez (Former Warden, CCI), J. Tyree (IGI, CCI), J. Gentry (Former IGI, CCI), G. Adame (Assistant IGI, CCI), and G. Jakabosky (SSU Special Agent) for due process violations, and for retaliation against Plaintiff in violation of the First Amendment. (Doc. 147.)
On May 9, 2014, the court issued an Amended Scheduling Order establishing pretrial deadlines, including a deadline of January 9, 2015, for completion of discovery, including the filing of motions to compel. (Doc. 167.) The discovery deadline has now expired.
On August 25, 2014, Plaintiff filed a motion to compel production of documents by defendants Holland, Tyree, and Adame ("Defendants"). (Doc. 172.) On September 11, 2014, Defendants filed an opposition to the motion. (Doc. 173.) On October 20, 2014, Plaintiff filed a reply. (Doc. 175.)
On September 11, 2014, Defendants filed a motion for protective order. (Doc. 174.) On October 20, 2014, Plaintiff filed an opposition to the motion. (Doc. 175.)
On November 20, 2014, Plaintiff filed a motion for sanctions. (Doc. 178.) On December 8, 2014, Defendants filed an opposition to the motion. (Doc. 179.) On December 22, 2014, Plaintiff filed a reply. (Doc. 181.)
Plaintiff's motion to compel, Defendants' motion for protective order, and Plaintiff's motion for sanctions are now before the court. (Docs. 172, 174, 178.)
II. PLAINTIFF'S ALLEGATIONS AND CLAIMS
A. Allegations at Issue in Fourth Amended Complaint
This case now proceeds with the Fourth Amended Complaint, filed on November 8, 2013, on Plaintiff's claims for due process violations concerning his 2010 and 2012 gang re-validations, and related retaliation claims, against defendants Holland, Gonzalez, Tyree, Gentry, Adame, and Jakabosky. (Doc. 147.) During the time of the events at issue, Plaintiff was incarcerated at the California Correctional Institution (CCI) in Tehachapi, California, and Corcoran State Prison (CSP) in Corcoran, California. Plaintiff's factual allegations follow.
On September 22, 2009, defendant K. Holland, then chairperson for the ICC, found that there was no noted gang activity by Plaintiff since October 2007, yet failed to release Plaintiff into the General Population as required by law, but instead chose to refer the case to defendant IGI J. Gentry for an inactive review, which is not required. Gentry failed to comply, and Plaintiff was retained in the SHU.
On October 7, 2009, the Classification Staff Representative (CSR) noted that a review was required for Plaintiff on October 19, 2009. IGI J. Gentry did not comply with the request, and defendants Gonzalez and Holland, who knew about such orders or lack of evidence to retain Plaintiff in the SHU, failed to command Gentry to fulfill his duties. Plaintiff's case was again bypassed and Plaintiff was retained in the SHU.
On February 10, 2010, Plaintiff appeared before the Board of Prison Hearings (BPH) for the ninth time for parole consideration. He was denied parole, in part because of his unresolved prison gang validation, and held back for an additional three years. The parole denial was due to inaction by defendants Gonzalez, Holland, and Gentry, out of retaliation against Plaintiff for filing a civil complaint against them, denying Plaintiff access to the courts.
On February 16, 2010, Plaintiff appeared before the ICC, and then chairperson T. Steadman [not a named defendant] took notice that IGI Gentry had failed to comply with any of the requests to conduct an inactive review. However, rather than release Plaintiff to the General Population as required by law, Steadman chose to again refer the case to IGI Gentry for inactive review. Gentry did not comply with the request, and Plaintiff was further retained in the SHU.
On February 24, 2010, after the court issued the Discovery/Scheduling Order in Plaintiff's civil case, Assistant IGI G. Adame, under the instructions of defendant Gentry, conducted Plaintiff's overdue inactive status review. After considerable research, Adame only found one questionable document, a confidential memorandum dated April 7, 2009, authored by counselor L. Phillips. Plaintiff was allowed one day to make a written response addressing the document.
On February 25, 2010, defendant Adame came to Plaintiff's cell and collected the written response, in which Plaintiff challenged the credibility of the source. After reviewing all available documents, defendant Adame concluded there was not sufficient evidence to find that Plaintiff was an associate of a prison gang, made a written finding, and provided copies to Plaintiff, Plaintiff's prison file, the Office of Correctional Safety (OCS), and the IGI Unit.
Between February 25, 2010 and March 8, 2010, defendants Gentry and Adame secretly altered the February 25, 2010 chrono by removing the word "not" from the phrase "There is not sufficient evidence, " and presented it to the federal court as evidence. (Doc. 147 at 8-9 ¶9.)
2010 Gang Re-Validation
On March 10, 2010, CSR W. Webb [not a named defendant] endorsed an indeterminate
SHU term for Plaintiff when there was no validated documentation to support such. Webb merely relied on an alleged CDC 128B by IGI Gentry which Webb assumed would be validated by OCS.
On March 15, 2010, defendants D. Jakabosky, a member of the OCS, "rubber stamp[ed]" a request by defendants Gentry and Adame to re-validate the one document that was submitted. Jakabosky failed to properly inspect the document to ...