United States District Court, E.D. California
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF NUNC PRO TUNC TO NOVEMBER 7, 2014, AND DENYING PLAINTIFF'S MOTIONS FOR CONTEMPT ORDER AGAINST DR. BEARD
(Docs. 151, 155, and 160)
SHEILA K. OBERTO, Magistrate Judge.
Plaintiff Darren Harris ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on January 3, 2005. This action is proceeding on Plaintiff's fourth amended complaint against Defendants Olivarria, Williams, and Kim for violation of the Eighth Amendment, and against Defendants Olivarria and Lowden for violation of the First Amendment. (Doc. 87.) This action was previously scheduled for trial on April 21, 2015, but on September 25, 2014, based Defendant Kim's deployment to Afghanistan, the Court vacated the trial date and stayed the case pursuant to 50 App. U.S.C. § 522(b), Servicemembers Civil Relief Act of 2003. (Doc. 150.) Pursuant to the stay order, Defendants Olivarria, Williams, Lowden, and Kim ("Defendants") are required to file a status report on or before June 1, 2015.
On October 2, 2014, Plaintiff filed a motion seeking a civil contempt order against third-party California Department of Corrections and Rehabilitation Secretary Jeffrey Beard, Ph.D., based on Dr. Beard's failure to comply with the subpoena duces tecum served pursuant to Federal Rule of Civil Procedure 45. (Doc. 151.) On October 22, 2014, Plaintiff filed a supplemental motion. (Doc. 155.) On October 24, 2014, Dr. Beard filed an opposition and on October 28, 2014, he filed a notice of additional documents served in compliance with the subpoena. (Docs. 156, 157.) Plaintiff filed a reply on November 5, 2014, and a motion seeking leave to submit additional briefing on November 7, 2014. (Docs. 159, 160.) Plaintiff's motion to submit additional briefing is granted, nunc pro tunc to November 7, 2014, and his motions for a contempt order were submitted on the record without oral argument pursuant to Local Rule 230( l ).
The discovery phase in this case is closed, with the limited exception of the subpoena duces tecum served on Dr. Beard. The Court addressed the issue in detail in an order filed on July 9, 2014, and it stated, "[G]iven the confusion interjected into these proceedings by virtue of Plaintiff's receipt of a non-court authorized subpoena duces tecum and his apparent misimpression that the parties had extended the discovery deadline by agreement, justice may require a limited extension of the discovery deadline to permit Plaintiff to obtain a court-authorized subpoena duces tecum." (Doc. 144, Order, 5:6-10.) In an order filed on July 23, 2014, following receipt of Plaintiff's list of documents he was seeking from Dr. Beard, the Court determined that it was in the interest of justice to authorize the issuance of a subpoena duces tecum commanding the production of two categories of documents, and it placed the parties on notice in accordance with Federal Rule of Civil Procedure 45(a)(4). (Doc. 147, Order, 2:3-11.)
On August 15, 2014, the Court ordered the United States Marshal to serve a subpoena commanding Dr. Beard to produce the following documents to Plaintiff on September 26, 2014: (1) all documents relating to and generated by the incident on July 9, 2002, at California State Prison-Corcoran, B Facility Kitchen, in which Darren Harris, J-12467, was (a) injured by the liquid "powerwash" soap he was cleaning with and (b) subsequently charged with refusal to work, including but not limited to incident reports, investigatory reports, witness statements, memoranda, Harris's CDCR 602 inmate appeals, CDCR 115 Rules Violation Reports, worker's compensation documents, documentation of chemical exposure, and medical records; and (2) all institutional safety training logs or other documents relating to training received by prison staff members and defendants (a) Aleesa D. Williams, (b) Rhonda Lowden, (c) Julian Kim, M.D., and (d) Kenneth A. Olivarria which relate to training they received or should have received as employees in or supervisors over the kitchen(s) at California State Prison-Corcoran, for the two-year period immediately preceding July 9, 2002. (Docs. 148, 149.) Service was effected on August 19, 2014. (Doc. 149.)
On October 2, 2014, Plaintiff filed a motion seeking a civil contempt order against Dr. Beard for failing to comply with the subpoena duces tecum. Plaintiff argues that Dr. Beard's failure to produce any documents in compliance with the subpoena prejudiced him by depriving him of documents he needs to prepare for trial. In his supplemental motion filed on October 22, 2014, Plaintiff, having by then received some documents, argues that the response was incomplete and otherwise deficient.
On October 24, 2014, Dr. Beard filed an opposition stating that pursuant to his authority to require records custodians to produce the documents, the subpoena was directed to records custodians at the institutions where the responsive records were kept: California State Prison-Corcoran and California Men's Colony. Dr. Beard represents that on or around September 19, 2014, Mary Kimbrell, the Litigation Coordinator at California State Prison-Corcoran, produced a worker's compensation claim summary responsive to request 1 and a training log for Defendant Olivarria responsive to request 2. Ms. Kimbrell did not find any other responsive documents. H. Cervantez, the Litigation Coordinator at California Men's Colony, located only one responsive document, a State Compensation Insurance Fund letter. In addition, Mr. Cervantez requested Plaintiff's medical records from CDCR archives in Sacramento, which Dr. Beard states will be sent to Plaintiff once they are retrieved.
On October 28, 2014, Dr. Beard filed a notice stating that thirty-four additional documents were located and sent to counsel for Dr. Beard and Defendants, who forwarded them to Plaintiff.
In reply, Plaintiff contends that Dr. Beard failed to fully comply with the subpoena because he failed to produce all of the documents sought by Plaintiff. Furthermore, Plaintiff takes issue with Ms. Kimbrell's production of documents via regular mail rather than legal mail, which resulted in staff at the prison opening his mail. Plaintiff asserts that Ms. Kimbrell intentionally sent the documents by regular mail to alert prison staff of his pending lawsuit, which may result in retaliatory harassment toward him. Plaintiff is also dissatisfied with the response to the subpoena because the documents produced were previously produced by Defendants, and the "training log" was not a "log" but a list of videotapes Defendant Olivarria watched. In his supplemental brief, Plaintiff contends that the thirty-four documents he received from counsel were documents he submitted in support of his complaint filed on January 3, 2005.
B. No Basis for Contempt ...