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Millare v. Gonzales

United States District Court, S.D. California

March 29, 2017

MORIANO MILLARE, Plaintiff,
v.
L. GONZALES, Correctional Officer; H. ASBURY, Manager/Supervisor; R. EBALO, Registered Nurse; G. CASIAN, Physician; A. JAMES, Vocational Nurse; S. PUCKETT, Registered or Vocational Nurse; G. WILEY, Nurse Practitioner; D. McARTHUR, Registered Nurse; M. HODGESON, Radiology Technician; A. CASTRILLON, Radiology Technician; DOE 1, Director of Radiological Services; S. ROBERTS, Chief Medical Executive; L. CIBROWSKI, Manager/Supervisor; P. H. BRACAMONTE, Manager Supervisor; DOE 2, Health Care Manager; DOE 3, Chief Medical Officer; DOE 4, Health Care Standards Compliance Coordinator; DOE 5, Correctional Health Services Administrator; DOE 6, Supervising Registered Nurse; DOE 7, Associate Warden, Health Care Operations; R. OLSEN, Appeals Coordinator; J. RAMIREZ, Appeals Coordinator; DOE 8, Manager/Supervisor Associate Warden; DOE 9, Manager Supervisor Chief Deputy Warden, Defendants.

         ORDER (1) DENYING IN PART PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY [DKT. NO. 55]; (2) GRANTING MOTION REQUESTING SUBPOENA TO ACQUIRE FORWARDING ADDRESS [DKT. NO. 65]; (3) DENYING MOTION REQUESTING COURT ORDER FOR DEFENSE COUNSEL TO SUBMIT A DECLARATION [DKT. NO. 67]; AND (4) GRANTING MOTION REQUESTING ORDER DIRECTING DEFENDANT'S COUNSEL PROVIDE INFORMATION REGARDING STATUS OF SERVICE FOR DEFENDANT L. CIBOROWSKI [DKT. NO. 69].

          Hon. Nita L. Stormes United States Magistrate Judge.

         Plaintiff Moriano Millare, a California inmate proceeding pro se and in forma pauperis (IFP), filed suit under 42 U.S.C. § 1983 alleging various violations by multiple defendants of his civil rights. Most of the claims revolve around Plaintiff being assigned to a top bunk even though he had a pre-existing broken leg and neck and back pain, and excessive force used on him in connection with his attendance at medical appointments. Plaintiff recently filed multiple motions; the court addresses each in turn below.

         1. February 9, 2017 Motion to Compel.

         On February 2, 2017 Plaintiff filed a “Motion for an Order Declaring All Matters Admitted” and asked the court to compel Defendants to supplement their discovery responses. Dtk. No. 52. A week later he filed a second motion entitled a “Notice of Joinder” to the original motion and included additional requests to compel. Dtk. No. 55. The court granted in part and denied in part the motions, and ordered defense counsel to meet and confer with Plaintiff regarding the outstanding issues. Defense counsel and Plaintiff held a one hour and 40 minute telephonic meet and confer session. Dkt. No. 61, p. 1. Defense counsel filed a notice that nearly all matters were resolved in the two motions, with either Defendants offering to supplement certain discovery responses by April 1, 2017, or Plaintiff agreeing to revise his requests to Defendants.

         Only one issue remains unresolved from those motions. Plaintiff requested an order compelling a more definite answer by defendants L. Gonzales and S. Puckett to request for production (RFP) numbers 2 and 3. Dkt. No. 55, p.2(P). After discussing these RFPs, Defendants maintain their objections. The RFPs and objections read:

RFP No. 2: Any and all documents that refer or relate to complaints against defendant L. Gonzales by any prisoner, fellow prisoner or private citizen alleging force, aggressive conduct or violence directed at persons detained in custody and or giving false testimony and writing false reports.
RFP No. 3: Same as RFP No. 2 but directed to defendant H. Asbury.

         Defendants objected to both on the grounds that they are vague and ambiguous, seek irrelevant information, have been asked and answered, conceivably seek the disclosure of information that would either violate the safety and security of the prison or individual privacy rights, and seek information provided by the official information privilege. Without waiving those objections, Defendants responded that neither L. Gonzales nor H. Asbury have records of discipline with the CDCR.

         Plaintiff argues that the RFPs did not request discipline records but rather sought information related to Plaintiff's allegations that they collaborated to file a false disciplinary report against him after L. Gonzales unnecessarily inflicted excessive force on Plaintiff. Plaintiff specifies that he is requesting any complaints filed against L. Gonzales or H. Asbury that allege they used force, aggressive conduct, gave false testimony or drafted false reports. In their responses, Defendants state that neither one has a record of discipline. But they do not expressly address whether any complaints have been filed against them for excessive force, false testimony or false reports.

         Defendants ask this court to deny the request to compel further responses on relevance grounds. They argue that Evidence Rule 404 prohibits evidence of prior conduct to establish a defendant's propensity to commit a wrongful act. Rule 404 prohibits evidence of a crime, wrong or other act “to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.” Fed.R.Evid. 404(b). While this typically arises in the criminal context, courts have also applied it in civil excessive force actions against peace officers. See, e.g., Antonetti v. Neven, 2013 WL 3875382, at *8 (D. Nev. July 25, 2013) (denying plaintiff discovery of other complaints filed by inmates against defendant correctional officer because such evidence of “prior bad acts” is prohibited under Rule 404); Hudson v. District of Columbia, 558 F.3d 526, 532 (D.C. Cir. 2009) (finding evidence of defendant police officer's prior history of anger, use of improper force and filing false reports was improperly admitted in a § 1983 case for excessive force and other claims because it violated Rule 404(b)).

         Because the information Plaintiff seeks would constitute evidence of “prior bad acts” that Plaintiff would presumably use to show that Defendants acted in conformity with those acts, the court finds the request impermissible because it would not lead to the discovery of admissible evidence under Rule 404(b). The court, thus DENIES in part the remainder of Plaintiff s Motion to Compel filed on February 9, 2017 [Dkt. No. 55].

         2. Motion Requesting Subpoena to Acquire Forwarding Address. A. Relevant Facts.

         On June 8, 2016 the district judge issued the order granting Plaintiff IFP status and directed the United States Marshal to serve the summons and the complaint on 15 named Defendants, including defendant G. Wiley. Dkt. No. 3, p.8. Plaintiff provided the Marshal with Wiley's address at R.J. Donovan Correctional Facility. ...


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