EDMUND F. BRENNAN, Magistrate Judge.
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. He has filed six motions which include: (1) a motion to file a second amended complaint; (2) a motion to compel further discovery responses; (3) a motion for oral argument on the motion to compel and other discovery matters; (4) a motion to schedule a telephone interview with a witness; (5) a motion to schedule a telephone interview with defense counsel and additional witnesses; and (6) a motion for an order preventing officials from obstructing his access to the law library. For the reasons stated below, plaintiff's motion to amend is granted, and all other motions must be denied.
Plaintiff seeks leave to file a second amended complaint for the purpose of increasing "the amount of damages" he is seeking and to clarify "what rights are alleged to have been violated." ECF No. 55. Rule 15(a)(2) provides that "[t]he court should freely give leave when justice so requires," and the Ninth Circuit has directed courts to apply this policy with "extreme liberality." DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). When determining whether to grant leave to amend under Rule 15(a)(2), a court should consider the following factors: (1) undue delay, (2) bad faith, (3) futility of amendment, and (4) prejudice to the opposing party. Foman v. Davis, 371 U.S. 178, 182 (1962). Granting or denying leave to amend rests in the sound discretion of the trial court, and will be reversed only for abuse of discretion. Swanson v. U.S. Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996).
Here, there is no indication that plaintiff, who is appearing pro se, unduly delayed in requesting leave to amend or that his filing was made in bad faith. See ECF No. 55 (explaining in his December 2, 2016 motion to amend that certain representations in defendant's November 15, 2016 Answer, prompted his need to amend). The proposed amendments do not add any new defendants and the excessive force claim remains the same.
For the purposes of 28 U.S.C. § 1915A(a), the court finds that the second amended complaint (like the original and first amended complaints) states a potentially cognizable Eighth Amendment excessive force claim against defendant J. Wright. However, the second amended complaint, which adds allegations that defendant "deprived [plaintiff] of his liberty or property without due process" when defendant "feloniously" confiscated plaintiff's bag of cereal, do not state an additional claim for relief. See ECF No. 56, ¶¶ 14-15. The Due Process Clause protects prisoners from being deprived of property without due process of law, Wolff v. McDonnell, 418 U.S. 539, 556 (1974), and prisoners have a protected interest in their personal property, Hansen v. May, 502 F.2d 728, 730 (9th Cir. 1974). However, a deprivation of personal property is not actionable under section 1983 where the deprivation is the result of random and unauthorized action (as opposed to an established state procedure), and the state provides an adequate post-deprivation remedy. Hudson v. Palmer, 468 U.S. 517, 532-33 (1984). California provides an adequate post-deprivation remedy through its Government Claims Act. Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (per curiam). Therefore, plaintiff's due process claim is dismissed without prejudice, and this case shall proceed solely on plaintiff's claim of excessive force against defendant J. Wright.
Plaintiff moves to compel further responses to his requests for production ("RFP") numbers 1, 2, and 3. ECF No. 52. Defendant opposes plaintiff's request.
Plaintiff requests oral argument on the motion to compel and "other discovery issues" on the grounds that defendant's opposition to his motion is "lengthy," he is being denied adequate paper materials and copies, and he is better able to clarify his arguments orally. ECF No. 60 at 1-3. After defendant filed his opposition, plaintiff filed numerous documents (including the instant request), and others, accompanied by numerous exhibits, which undermine plaintiff's claimed inability to access whatever paper materials and copies he might need to file a written reply or to otherwise litigate discovery matters in this case. See ECF Nos. 58, 59, 60, 61, 62, and 63. Plaintiff also could have, but did not, request an extension of time to file a written reply or modify the discovery and scheduling order. In addition, Local Rule 230(1) requires that all discovery motions filed in pro se prisoner actions "be submitted upon the record without oral argument unless otherwise ordered by the Court." Accordingly, plaintiff's request for oral argument is denied.
Rule 26(b)(1) of the Federal Rules of Civil Procedure provides that the scope of discovery includes "any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit." "The question of relevancy should be construed `liberally and with common sense' and discovery should be allowed unless the information sought has no conceivable bearing on the case." Ibanez v. Miller, No. Civ. S-06-2668-JAM-EFB P, 2009 U.S. Dist. LEXIS 98394 at *5 (E.D. Cal. Oct. 22, 2009) (quoting Soto v. City of Concord, 162 F.R.D. 603, 610 (N.D. Cal. 1995)).
In RFP No. 1, plaintiff asks for records indicating the "names, CDCR numbers, and current housing locations" of each inmate assigned to the "yard crew" in October of 2015. In a letter to defense counsel dated November 24, 2016, plaintiff limited this request to only the names of the "African American" yard crew inmates, and corrected the date in question to October 20, 2014. ECF No. 57-1, ¶ 9, Ex. B. In response to plaintiff's amended request, defendant agrees to disclose the identities of the African American yard crew inmates from October 20, 2014, who were housed in B-Facility, pending their consent to such disclosure. In light of defendant's agreement to provide plaintiff with this information, the motion to compel a further response to RFP No. 1 is denied a moot.
In RFP No. 2, plaintiff refers to an incident that allegedly occurred on February 5, 2015 and asks for the name, number, and housing location for the inmate involved. In his motion, plaintiff explains that this inmate "can corroborate that plaintiff is not the only one [that officers] take package items from and then physically challenge when they protest." ECF No. 52 at 3. The pertinent inquiry in this case is whether defendant's use of force was justified and proportional to the threat that plaintiff posed when plaintiff refused defendant's orders. There is no indication that defendant was involved in the February 5, 2015 incident; nor is it apparent how the inmate involved could possibly testify as to whether defendant's use of force on October 20, 2014 was appropriate in this case. As there is no logical nexus between the identity of the inmate involved and the incident at issue here, defendant's objection to the request as seeking information that is not reasonably calculated to lead to the discovery of relevant evidence is sustained.
In RFP No. 3, plaintiff asks for the names, numbers, and housing locations of all inmates who have ever received "rules violation reports" from any "R and R Officer" from "October 20, 2015 to the present." In his motion, plaintiff re-frames the time period from October 20, 2014, through October 20, 2015, but does not otherwise narrow the scope of the request. ECF No. 52 at 4. Like RFP No. 2, plaintiff fails to explain how the information requested would make it more or less likely that defendant used excessive force in this case, as the request is not limited to reports involving defendant, or even to incidents involving the use of force. See Rivera v. Nibco, Inc., 364 F.3d 1057, 1072 (9th Cir. 2004) ("District courts need not condone the use of discovery to engage in `fishing expeditions.'"). Accordingly, plaintiff's motion as to RFP No. 3 is also denied.
Plaintiff asks the court to order defense counsel to schedule telephonic interviews with three other inmates who purportedly have information relevant to plaintiff's claim. ECF Nos. 62, 63. The court previously denied a similar request, explaining to plaintiff that he must first avail himself of the process provided for in California Code of Regulations, Title 15, § 3139, by which an inmate can correspond with another inmate who is housed at another unit. See ECF No. 36 at 5-6. Plaintiff, citing to § 3139(f), which sets the limits for how restrictive a facility can be with respect to inmate mail privileges,
Plaintiff is once again instructed that if he attempts to engage in communications with an inmate by following the proper procedures under § 3139(a)-(c) and is denied access or is otherwise unable to effectively communicate with the inmate, and those communications are necessary to the litigation of this action, he may file another motion seeking appropriate relief and describing his attempts to engage in the process provided by § 3139(a)-(c), why that process failed him, and why the evidence from the inmate is relevant.
Plaintiff also seeks an order to prevent officials from obstructing his access to the law library and to the tools necessary for complying with court orders and participating in discovery, which the court construes as a motion for a preliminary injunction. ECF No. 51. He alleges that while confined to the R.J. Donovan Correctional Facility, his attempts to access the library have been met with intimidation and physical assaults by correctional officers. Id. at 3.
A preliminary injunction will not issue unless necessary to prevent threatened injury that would impair the court's ability to grant effective relief in a pending action. Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984); Gon v. First State Ins. Co., 871 F.2d 863 (9th Cir. 1989). A preliminary injunction represents the exercise of a far reaching power not to be indulged except in a case clearly warranting it. Dymo Indus. v. Tapeprinter, Inc., 326 F.2d 141, 143 (9th Cir. 1964). To be entitled to preliminary injunctive relief, a party must demonstrate "that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 172 L. Ed. 2d 249 (2008)). The Ninth Circuit has also held that the "sliding scale" approach it applies to preliminary injunctions—that is, balancing the elements of the preliminary injunction test, so that a stronger showing of one element may offset a weaker showing of another—survives Winter and continues to be valid. Alliance for the Wild Rockies v. Cottrell, 622 F.3d 1045, 1050 (9th Cir. 2010). "In other words, `serious questions going to the merits,' and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met." Id. In cases brought by prisoners involving conditions of confinement, any preliminary injunction "must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct the harm." 18 U.S.C. § 3626(a)(2).
Plaintiff fails to meet that standard. This action concerns the use of excessive force at High Desert State Prison. The motion for injunctive relief does not involve High Desert State Prison, the defendant in this action, or the claim of excessive force. Because plaintiff's motion addresses conduct that is not a subject of this civil action, it does not demonstrate either a likelihood of success or a serious question going to the merits of his complaint. Generally, such unrelated allegations must be pursued through the prison administrative process and then litigated in a separate action. See McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002) (per curiam) and Rhodes v. Robinson, 621 F.3d 1002, 1004-07 (9th Cir. 2010) (together holding that claims must be exhausted prior to the filing of the original or supplemental complaint); Jones v. Felker, No. CIV S-08-0096 KJM EFB P, 2011 U.S. Dist. LEXIS 13730, at *11-15 (E.D. Cal. Feb. 11, 2011). Moreover, plaintiff fails to show that he would suffer irreparable harm in the absence of the requested relief. Plaintiff's numerous filings with the court while confined to R.J. Donovan Correctional Facility, see ECF Nos. 49, 51, 52, 55, 56, 58, 59, 60, demonstrate that injunctive relief is not necessary, as plaintiff is clearly capable of requesting an extension of time from the court and explaining that circumstances beyond his control have prevented him from meeting a deadline. Regardless, the motion is now moot in light of plaintiff's transfer to another prison. See ECF No. 61. For these reasons, plaintiff's motion for a preliminary injunction must be denied.
For the reasons stated above, it is hereby ORDERED that:
Further, it is hereby RECOMMENDED that plaintiff's motion for an order preventing officials from obstructing his access to the law library, construed as a motion for a preliminary injunction (ECF No. 51), be DENIED.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
