United States District Court, E.D. California
ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE.
a state prisoner proceeding pro se, has filed this civil
rights action seeking relief under 42 U.S.C. § 1983. The
matter was referred to a United States Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
before this court is plaintiff’s motion to compel,
filed on February 8, 2019. See ECF No. 22. For the
reasons listed below, the motion will be denied.
RELEVANT FACTS AND PROCEDURAL HISTORY
alleges that he was sexually harassed in early June 2016, and
that he filed a staff complaint on June 23, 2016 which
accused defendant Baker of the harassment. See ECF
No. 7 at 4, 12. Plaintiff alleges that defendants Baker,
Gonzalez, Rashid, Whitehead and Marquez began to retaliate
against him following his filing of the staff complaint.
See id. at 4-9. Later, after receiving a falsified
rules violation report and being found guilty of delaying a
peace officer, plaintiff administratively appealed. See
id. He alleges that in response to his appeals,
defendants “conspired to inflict mental pain [on
him]” during their shift and began a “campaign of
retaliation” against him. See id. This
conspiracy included incidents such as interference with
plaintiff’s mental health treatment and/or access to
it, physical intimidation, and unwarranted strip searches.
See ECF No. 7 at 5-8. Plaintiff was also denied
canteen privileges and medical appointments. See id.
October 17, 2017, the court found that plaintiff had stated
the following cognizable claims: (1) First Amendment
retaliation claims against defendants Baker, Gonzalez,
Rashid, Whitehead and Marquez; (2) Section 1983 claims
against defendants Baker, Gonzalez, Rashid, Whitehead and
Marquez for conspiracy to retaliate against plaintiff for
protected conduct; (3) Eighth Amendment claims against
defendants Gonzalez, Marquez, Rashid and Whitehead for
interference with medical care, and (4) Eighth Amendment
claims against defendants Baker and Gonzalez for sexual
harassment. See ECF No. 10 at 3-4.
October 26, 2018, a discovery and scheduling order was issued
and discovery proceedings began. See ECF No. 21. The
record indicates that on January 31, 2019, the parties met
and conferred regarding the production of certain documents
to plaintiff. See ECF No. 22 at 1; ECF No. 23 at 8.
On February 8, 2019, plaintiff filed a motion to compel. ECF
No. 22. Defendants filed an opposition to the motion on
February 28, 2019. ECF No. 23.
March 27, 2019, plaintiff filed a declaration in support of
his motion to compel (ECF No. 24),  and on April 18, 2019,
plaintiff filed a request for judicial notice (ECF No. 25).
The court construes plaintiff’s request for judicial
notice as his reply to defendants’ opposition to his
motion to compel. The matter is fully briefed and ready for
PLAINTIFF’S MOTION TO COMPEL
plaintiff’s motion, he takes issue with
defendants’ responses to the following requests for
production (“RFPs”) of documents: (1) the RFP
statements defendants Rashid and Baker made to interviewer
Gonzalez in appeal number SAC-S-16-02293; (2) the RFP
statements made that defendants Gonzalez and Baker made to
the interviewer Heise in appeal number SAC-S-16-03276, and
(3) the RFP statements of defendant Whitehouse when
interviewer defendant Gonzalez interviewed him in appeal
number SAC-S-16-03252. See ECF No. 22 at 1.
Plaintiff writes in relevant part:
Instead of producing the actual documents so that [I] could
see how the investigators asked questions related to [my]
claims, defendants only produced answers that was [sic]
interpreted as interrogatorys [sic]. Defendants are refusing
to give up the official documents which is [sic] important to
help prove the conspiracy [sic] allegations which involves
[sic] cover-ups and defendants and their buddies practicing
the code of silence.
The lack of official documents thwart [sic] plaintiff from
producing them to the courts for oppositions [sic] or to a
As of now [I don’t] know how many questions was [sic]
asked, what questions was [sic] asked or if the formula used
to investigate the appeal matters was according to an
official C.D.C.R. policy.
After speaking to defendants [sic] counsel about the matter
on 1-31-19 [I] was told that the documents was [sic]
The requested documents should be produced because they was
[sic] generated as investigators was [sic] supposed to be
asking material questions related to [my] claims in this
lawsuit and defendant Gonzales himself was one of the
investigators asking some of the questions.
[My] claims is [sic] part conspiracy [sic] against defendants
and [I[ can help prove my claims more better [sic] because
these documents shows [sic] how investigators down played
[sic], covered up and falsified state documents in an effort
to conceal defendants [sic] conduct. The documents will also
help prove which defendants has [sic] perjured themselves
[sic] in this lawsuit.
The failure to disclose the requested discovery appears to be
in bad faith and calculated ot stifle and impeade [sic] [my]
ability to adequately represent [myself] in the lawsuit. The
discovery is of substantial importance to the case and
calculated to lead to the discovery of admissible evidence.
ECF No. 22 at 1-3 (brackets added) (citations omitted).
motion to compel, plaintiff also attaches a copy of
defendants’ responses to his
“second” request for production of documents.
See ECF No. 22 at 5-8. The court refers to this
document as well as plaintiff’s motion to evaluate the
adequacy of defendants’ responses.
contend that they have responded appropriately to
plaintiff’s requests for production of documents, set
two, and that the motion should therefore be denied.
See ECF No. 23 at 2-6. First, they point out that
plaintiff’s motion fails to address defendants’
objections and that as a result, plaintiff has failed to meet
his burden to show why their objections are not justified.
See id. at 4 (citations omitted).
defendants contend that the statements they produced to
plaintiff in response to his production for documents were
appropriate because statements were precisely what
plaintiff had asked for; he had not asked for
documents. See ECF No. 23 at 4. They
represent that the first time plaintiff asked for actual
documents was during the parties’ January 2019
telephonic meet and confer. See id. at 5, 8-9. In
any event, defendants argue, they have provided plaintiff
with the information he originally asked for, and they note
that to the extent plaintiff argues that he needs the actual
documents so that he can proffer them in a summary judgment
motion or at trial, they have told plaintiff that the
statements they have provided to him may be used in both
situations. See id. at 4, 8-9. During the meet and
confer, defendants also told plaintiff that he was welcome to
submit a written request for the documents, but that if he
did, they would seek to have them deemed privileged. See
id. at 5.
defendants argue that to the extent plaintiff is now asking
for the production of privileged documents via this motion to
compel, the time for plaintiff to have done so has passed.
They contend that the information plaintiff seeks is
confidential under Cal. Code Regs. tit. 15, § 3321, and
that its release to plaintiff, an inmate, is improper under
Cal. Code Regs. tit. 15, § 3370. See ECF No. 23
at 5-6. They also formally object to the production of
“any documents that are considered confidential with
regard to the inmate appeal process, including the
confidential supplements that include the . . . statements
that were already provided.” Id. at 5. In
support of these arguments, defendants have provided the
requisite declaration from an appropriate prison authority as
well as a privilege log. See ECF No. 23 at 21-24,
25-26, respectively; see generally Hampton v. City of San
Diego, 147 F.R.D. 227, 230-31 (S.D. Cal. Mar. 15, 1993)
(stating official information privilege affidavit and
privilege log requirements).
reply does not directly respond to any of the arguments made
by defendants in their opposition. It simply asks the court
to take judicial notice of different federal cases related to
the confidentiality of police reports and investigations, of
authority related to privilege, and of Federal Rule of
Evidence 501. See generally ECF No. 25.
Federal Rule of Civil Procedure 37(a)(3)(B): Failure to