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Burton v. Foulk

United States District Court, E.D. California

September 18, 2019

HARRISON BURTON, Plaintiff,
v.
F. FOULK, et al., Defendants.

          ORDER

          DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to this court pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

         On October 12, 2018, plaintiff filed a motion to compel, regarding his request for production (“RFP”). (ECF No. 28). On November 2, 2018, defendants filed an opposition to plaintiff’s motion. (ECF No. 30). For the reasons stated below, the court shall deny plaintiff’s motion to compel in its entirety.

         I. RELEVANT FACTS

         On October 2, 2015, plaintiff filed a second amended complaint (“SAC”). (ECF No. 15). In it, plaintiff lodged claims of retaliation and excessive force against defendant Chenoweth. (See id. at 10-11; see also ECF No. 18 at 5 (court identifying viable claims made by plaintiff)).

         The SAC asserts that in June 2011, Chenoweth retaliated against plaintiff in violation of his rights when he told plaintiff that if he went to the law library, he would be written up with a rule violation report. (See ECF No. 15 at 10). Thereafter, plaintiff was denied law library privileges for months until a February 2012 court order directed the prison to give plaintiff access to the law library. (See id. at 10-11).

         Defendants filed their answer on June 7, 2018, and on July 6, 2018, a discovery and scheduling order issued. (ECF Nos. 24, 25). The instant motion to compel was filed on October 12, 2018 (ECF No. 28), and on November 2, 2018, defendants filed their opposition. (ECF No. 30). The motion is fully briefed and ready for review.

         II. PLAINTIFF’S MOTION TO COMPEL

         Plaintiff’s motion states that Chenoweth failed to fully produce information regarding his alleged prior misconduct. (See ECF No. 28 at 1-3). Plaintiff asserts that this information is relevant and/or admissible because it may show that Chenoweth had a motive to be hostile to prisoners and/or had the intent to harm prisoners who are outspoken. (See id. at 2-3). Plaintiff asserts that this information may also show that Chenoweth acted with the requisite intent to support a damage award. (See id. at 3, 6). He contends that the fact that such information was not public record does not protect it from discovery under federal law. (See id. at 6).

         Plaintiff asserts that his need for this is compelling and outweighs the policies favoring secrecy. (See ECF No. 28 at 5). Also, to the extent that High Desert State Prison’s (“HDSP”) personnel manager, S. Campbell has also asserted a “self-critical analysis” privilege,[1] plaintiff argues that it should be given limited application and not be applicable to underlying facts or routine internal review of matters related to safety concerns. (See id. at 5).

         The motion objects to the declaration of personnel manager S. Campbell, which asserts the official information privilege in support of defendants’ responses to plaintiff’s requests for production. (ECF No. 28 at 1). Plaintiff contends that when asserting the privilege, Campbell is obligated to prove that the information requested is, in fact, privileged. (See id. at 2).

         Finally, plaintiff complains that manager Campbell asserts in his declaration that plaintiff’s pro se and prisoner status prevent him from producing the requested information. If so, plaintiff’s prisoner status makes it “impossible” to take discovery adequately. (See ECF No. 28 at 7). Consequently, plaintiff asks the court to appoint counsel for him for the limited purpose of discovery. (See id. at 7).

         III. DEFENDANTS’ OPPOSITION

         In response, defendants state that plaintiff has failed to identify which of Chenoweth’s responses are problematic. (ECF No. 30 at 2). Nonetheless, defendants infer that plaintiff takes issue with Chenoweth’s responses to RFPs, numbers 1, 4, and 6. (See ECF No. 30 at 2-6).

         Defendants make the following arguments: (1) Chenoweth has identified each specific objection and the reasoning behind it; (2) Chenoweth has asserted the official information privilege and in support of it, has submitted the requisite declaration; (3) some of plaintiff’s requests – e.g., the ones that request information regarding prior or subsequent “assaults” by Chenoweth, – are too ambiguous; (4) other requests – e.g., ones in which plaintiff requests documents indicating that Chenoweth misused force in the past – are irrelevant because they are inadmissible to the extent they would be used to impeach defendant Chenoweth’s character; (5) grievances and complaints filed against Chenoweth would be more prejudicial than probative as inmates’ claims are subjective and not necessarily substantiated; (6) it is unclear how plaintiff will utilize the documents, and their potential distribution to the inmate population could lead to Chenoweth being targeted; (7) plaintiff’s request(s) cover a wide range of documents and information over a period of six years and plaintiff has not indicated why any of it would be relevant to his action; (8) plaintiff has already received some of the information requested – e.g., information regarding Chenoweth’s training – via interrogatories.

         Therefore, production of similar information in document form would be duplicative, and (9) the production of the responsive documents plaintiff has requested, would have to be heavily redacted in order to avoid giving plaintiff any sensitive information about Chenoweth. (See ECF No. 30 at 2-6).

         IV. ...


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