United States District Court, S.D. California
(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].
Nita L. Stormes United States Magistrate Judge.
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.
February 9, 2017 Motion to Compel.
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.
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
RFP No. 3: Same as RFP No. 2 but directed to
defendant H. Asbury.
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.
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
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
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.
Motion Requesting Subpoena to Acquire Forwarding
Address. A. Relevant Facts.
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. ...