MICHAEL J. SENG, Magistrate Judge.
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 28 U.S.C. § 1983. The case proceeds against Defendants Waddle, Neibert, Ronquillo, and Walinga for excessive force and against Defendant Waddle for failure to protect, all in violation of the Eighth Amendment of the Constitution, and against Defendant Lesniak for violating Plaintiff's Fourteenth Amendment procedural due process rights during a rules violation hearing (ECF No. 7.)
Before the Court is Plaintiff's March 7, 2016, motion to compel discovery. (ECF No. 32, hereafter "Pl. Mot. to Compel.") Defendants filed their opposition to Plaintiff's motion to compel on March 30, 2016. (ECF No. 38, hereafter "D. Opp'n.") Plaintiff did not file a reply. The matter is submitted pursuant to Local Rule 230(/).
On October 19, 2015, Plaintiff propounded his first set of discovery on Defendant ("Set 1"), including six Requests for Production of Documents ("RPD"). Pl. Mot. Compel, Ex. A. On December 17, 2015, Defendants responded to Plaintiff's Set 1. Pl. Mot. to Compel, Ex. B. On December 31, 2015, Plaintiff propounded his second set of discovery ("Set 2"), which included two more RPDs. Pl. Mot. to Compel, Ex. C. On February 16, 2016, Defendants submitted responses to Plaintiff's Set 2. Pl. Mot. to Compel, Ex. E.
Dissatisfied with Defendants' responses to certain RPDs propounded in Set 1 and Set 2, Plaintiff filed a motion to compel on March 7, 2016. Defendants filed their opposition on March 30, 2016. After an initial review of these filings, the Court scheduled a telephonic discovery dispute conference ("TDDC") to try to resolve the disputes informally. In anticipation of the TDDC, the Court directed Defendants to submit for in camera review: (1) reports in Defendants possession, custody, or subject to their control of the investigation of the incident at issue in this case; (2) a list of all identified witnesses to the incident at issue and copies of all statements in Defendants possession, custody, or subject to their control given by or taken from witnesses to the incident; and (3) a listing by date, type and duration of all known incidents of gang violence and/or gang-related lockdowns in C facility during the time period from February 1, 2014 to May 30, 2014.
On June 17, 2016, Defendants submitted the following documents for the Court's review: CDCR Form 115 Rules Violation Reports; CDCR Form 837 Crime Incident Reports; CDCR Forms 3036, 3034, 3014, 3012, 3011, and 3010 (collectively, "Use of Force Critique documents"); a holding cell log from May 14, 2014; and a general chrono reflecting the date and time Plaintiff viewed his videotaped interview. Defendants explained that they were unable to provide lockdown records because they were still trying to compile them.
On June 22, 2016, the parties, Irvin Van Buren, appearing pro se, and Deputy Attorney General Gabriel Ullrich, on behalf of all Defendants, participated in the telephonic discovery dispute conference.
The discovery process is subject to the overriding limitation of good faith.
A party may serve on any other party a request within the scope of Rule 26(b) to "produce and permit the requesting party or its representative to inspect, copy, test, or sample" any documents, electronically stored information, or tangible things "in the responding party's possession, custody or control." Fed. R. Civ. P. 34(a)(1). A party may move for an order compelling production where the opposing party fails to produce documents as requested under Rule 34. Fed. R. Civ. P. 37(a)(3)(B)(iv).
Generally, if the responding party objects to a discovery request, the party moving to compel bears the burden of demonstrating why the objections are not justified.
The court must limit discovery if the burden of the proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(2)(C)(iii). "In each instance, the determination whether . . . information is discoverable because it is relevant to the claims or defenses depends on the circumstances of the pending action." Fed. R. Civ. P. 26 Advisory Committee's Note (2000 Amendment) (Gap Report) (Subdivision (b)(1)).
Plaintiff's motion to compel seeks the production of the following evidence. After reviewing the parties' filings and discussing each party's position during the TDDC, the Court rules as follows with regard to each such request:
Plaintiff argues the excessive force in question occurred on the C Facility Patio, which, Plaintiff claims, is adjacent to the medical clinic. Plaintiff believes there are inmates who were in the medical clinic at the time who may have witnessed the incident. Plaintiff seeks only those inmates' identities, not any other information about them or their reason for being in the area. At the TDDC, Plaintiff acknowledged that he did not know whether any such inmates witnessed the attack; he knows only that some witnessed his injuries after the fact and may have been in a position to have observed the event.
Defendants raise several objections. First, they argue that Plaintiff's request improperly seeks confidential health information. Also, they argue that to seek out, interview, and depose these witnesses would be costly, time-consuming, burdensome and oppressive. Finally, Defendants argue that the witnesses can make no relevant contribution because the alleged excessive force event occurred in a location not viewable from the medical clinic. They propose photographing the sightlines between the medical clinic and the patio where the event occurred to show the latter was not within sight of the former. Defendants also offered to provide the names of prison employees working in the medical clinic at the time.
The Court concludes that identifying individuals in the vicinity would not reveal medical or other confidential information. It also concludes that Defendants' proposal to provide photographs showing whether or not the Facility Patio is viewable from the medical clinic would likely precipitate a mini trial as to the objectivity of the photographs and thus was not the most efficient or productive way to proceed at this time. It seems Defendants could relatively easily and economically determine which individuals were in the clinic in the 30 or so minutes preceding and following the time of the alleged incident. Defendants were directed to so inquire and report, at or prior to a continued 4:00 PM, July 20, 2016 TDDC, their success or inability in doing so. If potential witnesses, if any, are identified, the parties, with Court assistance if need be, can undertake to determine whether any purport to have seen the incident and, if so, if they recall what they saw.
Ruling on this request will therefore be deferred until the continued July 20, 2016 TDDC.
Plaintiff argues that the lockdown records will show the frequency of C Facility lockdowns attributable to high levels of gang violence which in turn put Defendants on notice of the heightened risk to Plaintiff of a gang-related attack and thus should have led Defendants to take additional steps to protect Plaintiff from that risk.
Defendants argue that lockdown records are irrelevant to Plaintiff's claims, which do not involve gang-related violence. Moreover, they claim, lockdown records are voluminous, and it would be burdensome to produce them.
Plaintiff's failure to protect claim proceeds on his allegation that Defendant Waddle failed to protect him from a risk of harm at the hands of prison gang members by housing him in the C Facility alongside Plaintiff's known enemies.
During the TDDC, Plaintiff acknowledged that the issue regarding the photographs had been resolved and he withdrew his request for an order related thereto. Plaintiff's request will therefore be denied as moot
As an initial matter, the Court agrees (and Plaintiff did not dispute) that providing an inmate with a diagram depicting the locations of video surveillance cameras within the prison could create a serious security issue. Plaintiff's request for a diagram of the video cameras will therefore be denied.
Defendants assert that no video camera filmed the area where the incident took place. They have submitted, in support, a sworn declaration from Litigation Coordinator B. Hancock, the individual charged with maintaining the video surveillance and recording systems at KVSP. (ECF No. 18-1.) Plaintiff concedes that he has no direct evidence to the contrary; he simply finds it unlikely that the area would not have been under surveillance.
The Court cannot compel Defendants to produce that which they declare under penalty of perjury does not exist. However, for reasons discussed below,
Plaintiff and Defendants confirmed that Plaintiff has received a copy of every document reviewed in camera except for those within the Use of Force Critique. Defense counsel objected to turning over the Use of Force Critique documents on the ground that they would reveal the nature and manner of investigation of such matters in a way that prisoners, aware of same, could conceivably create a scenario which would be more likely to expose a correctional officer to criticism.
With one exception, the Court agrees with Defendants' position. The forms contain checklists of the numerous factors the institution considers when conducting internal review of staff use of force incidents. To disclose these to an inmate could enable him to tailor his excessive force claims to conform to the factors on the lists, thereby making them appear more credible. Moreover, with the same single exception mentioned above, the Court's in camera review of those documents revealed nothing that was favorable to, or would support or corroborate, directly or indirectly, any of Plaintiff's claims. In short, the security concerns expressed by Defendants far outweigh any interest Plaintiff may have in reviewing the documents.
The twice-mentioned "exception" is the CDCR Form 3014 "Use of Force Critique, Report of Findings — Inmate Interview," signed by Lt. R. Molina, and dated May 26, 2014. This document contains statements attributed to Plaintiff by prison officials investigating his allegations of excessive force. It does not appear to contain any privileged information or material in need of protection for security reasons. Moreover, Defense counsel advised that while the CDCR does not typically provide Use of Force Critique forms to prisoner litigants, Plaintiff's CDCR Form 3014 appeared "innocuous." Therefore, Defendants shall provide Plaintiff with a copy of the May 26, 2014 CDCR Form 3014
For the foregoing reasons, as to Plaintiff's motion to compel (ECF No. 32) IT IS HEREBY ORDERED as follows:
As to the documents provided to the Court for in camera review, IT IS HEREBY ORDERED:
IT IS SO ORDERED.
