(PC) Crane v. Rodriguez ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD JOSEPH CRANE, No. 2:15-cv-0208 TLN KJN P 12 Plaintiff, 13 v. ORDER 14 RODRIGUEZ, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel. Plaintiff’s motion to compel 18 discovery is before the court. (ECF No. 191.) Defendant Weeks and the remaining defendants 19 (“group defendants”) filed oppositions. (ECF Nos. 192, 193.) Plaintiff filed a reply. (ECF No. 20 199.) As discussed below, the motion is partially granted. 21 I. Plaintiff’s Amended Complaint 22 This action proceeds on plaintiff’s second amended complaint against defendants Davey, 23 Rodriguez, Robinette, Barton, Probst and Weeks. (ECF No. 16.) The court found plaintiff stated 24 potentially cognizable First and Eighth Amendment claims for relief based on plaintiff’s 25 allegations that such defendants conspired to violate his civil rights while plaintiff was 26 incarcerated at High Desert State Prison (“HDSP”). (ECF No. 26 at 6.) Plaintiff alleges that on 27 multiple occasions, defendants set him up for assault by inmates because of plaintiff’s litigation 28 activities. (ECF No. 16 at 3-9.) Plaintiff identified the inmates as Washington, Smith, Dolihite, 1 Parker and Williams, and the incidents occurred from December 31, 2009, to March 1, 2013. 2 (ECF No. 16 at 3-8.) In addition, plaintiff alleges that defendants Robinette and Weeks used 3 excessive force on March 1, 2013. (ECF No. 16 at 7-8.) 4 Other defendants named in the second amended complaint were subsequently dismissed.1 5 II. Limits on Discovery 6 On April 18, 2019, in addressing plaintiff’s motion to reopen discovery, the court noted 7 that this action has been scheduled and rescheduled numerous times. (ECF No. 189 at 5.) By 8 then, plaintiff had propounded multiple discovery requests and was provided over a thousand 9 pages of documentary evidence. In light of plaintiff’s failure to demonstrate his diligence in the 10 discovery process, the court noted its reluctance to extend discovery and further delay this action. 11 (ECF No. 189 at 5-6.) However, because the group defendants filed a statement of 12 nonopposition2 to plaintiff’s request for extension of time to file a motion to compel discovery 13 responses provided too late in the discovery period to permit plaintiff time to bring a motion to 14 compel, plaintiff’s motion to modify the discovery period was partially granted. Discovery was 15 reopened for the sole purpose of allowing plaintiff to file a motion to compel as to the group 16 defendants’ responses to plaintiff’s third and fourth sets of discovery. (ECF No. 189 at 6, 8.) 17 Plaintiff did not object to or seek reconsideration of the April 18, 2019 order. 18 III. Defendant Weeks 19 Because discovery was reopened for the limited purpose of addressing challenges to the 20 group defendants’ responses to plaintiff’s third and fourth sets of discovery,3 to the extent 21 //// 22 23 1 Defendants Peck and Hurd were dismissed on December 8, 2015. (ECF No. 38.) Defendant Madrigal was dismissed on January 12, 2016. (ECF No. 42.) 24 2 Defendant Weeks did not file a statement of nonopposition to plaintiff’s request for extension 25 of time to file a motion to compel, but rather opposed plaintiff’s request in its entirety. 26 3 With his motion to modify, plaintiff did not provide a copy of any challenged discovery 27 response by defendant Weeks. (ECF No. 189 at 3.) Thus, plaintiff’s motion to modify discovery was granted only as to the group defendants’ responses to plaintiff’s third and fourth sets of 28 discovery. (ECF No. 189 at 6.) 1 plaintiff’s motion to compel implicates responses by defendant Weeks or seeks further production 2 by defendant Weeks, such motion is denied. 3 IV. Group Defendants 4 Plaintiff seeks to compel further production of documents by the group defendants. 5 A. Applicable Legal Standards 6 Under Rule 37 of the Federal Rules of Civil Procedure, “a party seeking discovery may 7 move for an order compelling an answer, designation, production, or inspection.” Fed. R. Civ. P. 8 37(a)(3)(B). Such “motion may be made if: (i) a deponent fails to answer a question asked under 9 Rule 30 or 31; (ii) a corporation or other entity fails to make a designation under Rule 30(b)(6) or 10 31(a)(4); (iii) a party fails to answer an interrogatory submitted under Rule 33; or (iv) a party fails 11 to produce documents or fails to respond that inspection will be permitted -- or fails to permit 12 inspection -- as requested under Rule 34.” Fed. R. Civ. P. 37(a)(3)(B). An “evasive or 13 incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or 14 respond.” Fed. R. Civ. P. 37(a)(4). “District courts have ‘broad discretion to manage discovery 15 and to control the course of litigation under Federal Rule of Civil Procedure 16.’” Hunt v. Cnty. 16 of Orange, 672 F.3d 606, 616 (9th Cir. 2012) (quoting Avila v. Willits Envtl. Remediation Trust, 17 633 F.3d 828, 833 (9th Cir. 2011)). 18 Plaintiff bears the burden of informing the court (1) which discovery requests are the 19 subject of his motion to compel, (2) which of the responses are disputed, (3) why he believes the 20 response is deficient, (4) why defendants’ objections are not justified, and (5) why the 21 information he seeks through discovery is relevant to the prosecution of this action. McCoy v. 22 Ramirez, 2016 WL 3196738 at *1 (E.D. Cal. 2016); Ellis v. Cambra, 2008 WL 860523, at *4 23 (E.D. Cal. 2008) (“Plaintiff must inform the court which discovery requests are the subject of his 24 motion to compel, and, for each disputed response, inform the court why the information sought 25 is relevant and why defendant’s objections are not justified.”). 26 The reach of Rule 34 of the Federal Rules of Civil Procedure, which governs requests for 27 production, “extends to all relevant documents, tangible things and entry upon designated land or 28 other property.” Clark v. Vega Wholesale Inc., 181 F.R.D. 470, 472-73 (D. Nev. 1998), citing 8A 1 C. Wright & A. Miller, Federal Practice and Procedure § 2206, at 381. “For each item or 2 category, the response must either state that inspection and related activities will be permitted as 3 requested or state with specificity the grounds for objecting to the request, including the reasons.” 4 Fed. R. Civ. P. 34(b)(2)(B). The responding party is responsible for all items in “the responding 5 party’s possession, custody, or control.” Fed. R. Civ. P. 34(a)(1). Actual possession, custody or 6 control is not required. Rather, “[a] party may be ordered to produce a document in the 7 possession of a non-party entity if that party has a legal right to obtain the document or has 8 control over the entity who is in possession of the document.” Soto v. City of Concord, 162 9 F.R.D. 603, 619 (N.D. Cal. 1995). “The party seeking production of the documents bears the 10 burden of proving that the documents are in the other party’s possession, custody, or control.” 11 Philippe Charriol Int’l Ltd. v. A’lor Int’l Ltd., 2016 WL 7634440, at *2 (S.D. Cal. Mar. 10, 2016) 12 (citing United States v. Int’l Union of Petroleum & Indus. Workers, AFL-CIO, 870 F.2d 1450, 13 1452 (9th Cir. 1989)). 14 The purpose of discovery is to “remove surprise from trial preparation so the parties can 15 obtain evidence necessary to evaluate and resolve their dispute.” U.S. ex rel. O’Connell v. 16 Chapman University, 245 F.R.D. 646, 648 (C.D. Cal. 2007) (quotation and citation omitted). 17 Rule 26(b)(1) of the Federal Rules of Civil Procedure offers guidance on the scope of discovery 18 permitted: 19 Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the 20 needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access 21 to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense 22 of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to 23 be discoverable. 24 Id. “Relevance for purposes of discovery is defined very broadly.” Garneau v. City of Seattle, 25 147 F.3d 802, 812 (9th Cir. 1998). “The party seeking to compel discovery has the burden of 26 establishing that its request satisfies the relevancy requirements of Rule 26(b)(1). Thereafter, the 27 party opposing discovery has the burden of showing that the discovery should be prohibited, and 28 //// 1 the burden of clarifying, explaining or supporting its objections.” Bryant v. Ochoa, 2009 WL 2 1390794 at *1 (S.D. Cal. May 14, 2009) (internal citation omitted). 3 B. Elements of Plaintiff’s Underlying Claims 4 “To state a claim for conspiracy to violate one’s constitutional rights under section 1983, 5 the plaintiff must state specific acts to support the existence of the claimed conspiracy.” Burns v. 6 Cnty. of King, 883 F.2d 819, 821 (9th Cir. 1989). Such conspiracy claim requires proof of “‘an 7 agreement or meeting of the minds to violate constitutional rights,’” Franklin v. Fox, 312 F.3d 8 423, 441 (9th Cir. 2002) (quoting United Steel Workers of Am. v. Phelps Dodge Corp., 865 F.2d 9 1539, 1540-41 (9th Cir. 1989) (en banc) (citation omitted)), and an actual deprivation of 10 constitutional rights, Hart v. Parks, 450 F.3d 1059, 1071 (9th Cir. 2006) (quoting Woodrum v. 11 Woodward County, Oklahoma, 866 F.2d 1121, 1126 (9th Cir. 1989)). “To be liable, each 12 participant in the conspiracy need not know the exact details of the plan, but each participant must 13 share at least the common objective of the conspiracy.” Crow v. Cnty. Of San Diego, 608 F.3d 14 406, 440 (9th Cir. 2010), (quoting United Steel Workers, 865 F.2d at 1541). 15 In order to prevail on the First Amendment claims raised herein, plaintiff must adduce 16 evidence that each defendant set him up for assault by other inmates and/or used force against 17 plaintiff because plaintiff exercised his First Amendment rights, and such actions chilled 18 plaintiff’s First Amendment rights and were not undertaken to advance legitimate penological 19 purposes. See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (setting out elements of 20 a First Amendment retaliation claim within the prison context); see also Farmer v. Brennan, 511 21 U.S. 825, 833-34 (1994) (prison authorities have a duty to take reasonable measures to guarantee 22 the safety of the inmates). 23 Further, to succeed on a claim of excessive force, plaintiff must show that a defendant 24 used force against him maliciously and sadistically to cause harm, rather than in a good-faith 25 effort to maintain or restore discipline. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). To 26 determine whether the evidence establishes such a scenario, the factfinder may consider: (1) the 27 need for force; (2) the relationship between that need and the amount of force used; (3) the threat 28 //// 1 reasonably perceived by the officer; (4) the extent of injury suffered by the plaintiff; and (5) any 2 efforts made to temper the severity of the forceful response. Id. at 7. 3 C. Plaintiff’s Discovery Requests 4 Initially, the court finds plaintiff’s assertion that the group defendants waived their 5 opposition to plaintiff’s motion to compel by not opposing plaintiff’s prior request for extension 6 of time (ECF No. 191 at 2) is frivolous and unfounded, and overrules such objection. 7 Second, it is unclear why plaintiff wants this court to take judicial notice of his habeas 8 filing in Lassen County No. S191383 in the context of this motion to compel. Plaintiff claims 9 that defendant Barton was “obstructing and denying plaintiff access to the courts.” (ECF No. 191 10 at 5.) But, as set forth above, this action is not proceeding on an access to the courts claim. In his 11 reply, plaintiff argues that the habeas case is relevant because it demonstrates defendant Barton 12 removed plaintiff’s appeal, thwarting plaintiff’s ability to exhaust his administrative remedies. 13 (ECF No. 199 at 3.) Such habeas filing may become relevant if and when a defendant files a 14 motion for summary judgment on the issue of exhaustion of administrative remedies. But such 15 motion has not yet been filed. Therefore, plaintiff’s request for judicial notice is denied without 16 prejudice to its renewal. 17 Third, plaintiff references request for production of documents set three, but without a 18 specific request number, claiming that defendants failed to produce the plaintiff’s submission to 19 the Second Level of Appeal Log No. HDSP-B-10-00278, which plaintiff submitted as part of the 20 state habeas action S191383. (ECF No. 191 at 3.) Plaintiff then claims that the group 21 defendants’ counsel “had access to these documents in their own records for years[,] [y]et . . . 22 claimed that they did not possess them.” (ECF No. 191 at 4.) In addition to noting the court’s 23 prior order on such issue (ECF No. 159 at 6), defendants state that they located and produced 24 court records from plaintiff’s habeas action S19183 in their July 5, 2017 supplemental response to 25 plaintiff’s June 15, 2017 supplement to his motion to compel. (ECF No. 192 at 2.) The group 26 defendants argue that if plaintiff believes there were additional documents not provided, he 27 should seek them from the appropriate court, not defendants. (Id. at 3.) But it is not clear to the 28 undersigned that plaintiff is seeking additional response to this request, given his failure to 1 provide the request and the response as he did with the other requests at issue. Rather, it appears 2 that plaintiff may be objecting to the delayed receipt of such documents. In any event, because 3 plaintiff did not provide the specific request and response, and his reference to defendants’ 4 response is unclear, the court makes no order concerning such production. 5 The court turns now to plaintiff’s specific discovery requests at issue. 6 1. Plaintiff’s Request for Production of Documents, Set Three 7 Request for Production of Documents No. 7: Produce all DOCUMENTS from Larry Washington’s mental health records, 8 including all documents from Doctor Bowers treating inmate Washington for psychiatric problems, and documentation 9 concerning the “M” sign assigned to inmate Larry Washington’s prison cell at High Desert State Prison. 10 Response: Objection. Overbroad as to time and subject matter. 11 Vague, ambiguous, and overbroad as to the term “concerning.” Argumentative and assumes facts not in evidence as to “Doctor 12 Bowers treating inmate Washington,” inmate Washington having “psychiatric problems,” and an “‘M’ sign assigned to inmate Larry 13 Washington’s prison cell at High Desert State Prison.” Calls for documents not relevant to the claims or defenses of either party and 14 not reasonably calculated to lead to the discovery of admissible evidence; documents protected from disclosure by the constitutional 15 right to privacy, the psychotherapist-patient privilege, the California Information Practices Act of 1977, California Welfare & Institutions 16 Code section 5328, California Code of Regulations, Title 15, sections 3321 and 3370, and the Health Insurance Portability and 17 Accountability Act of 1996; and documents not within the possession, custody, or control of Defendants. 18 19 (ECF No. 191 at 6.) 20 A. The Parties’ Positions 21 Plaintiff states that he needs a response to request no. 7 to prove that inmate Washington 22 was diagnosed as mentally ill, and claims that Dr. Bowers was a witness who plaintiff asked to 23 move plaintiff away from Washington. Plaintiff claims that Dr. Bowers asked an unidentified 24 defendant and then returned telling plaintiff he could not help him. (ECF No. 191 at 14.) 25 Plaintiff complains that defendants’ objections are insufficient boilerplate responses and that their 26 reliance on state law and state privilege are not proper authority in federal court. (ECF Nos. 191 27 at 14; 199 at 7.) 28 //// 1 The group defendants counter that their objections are not boilerplate; Larry Washington 2 is not a party in this action, his mental health records are protected from disclosure as set forth in 3 their objections, but in any event, defendants do not have possession, custody, or control of such 4 records. (ECF No. 192 at 3.) Further, group defendants argue that plaintiff’s claim that the 5 records are needed to prove Washington was mentally ill is of questionable relevance, if any. 6 (Id.) 7 In reply, plaintiff argues that Washington’s mental health file is relevant and admissible to 8 prove defendants Barton and Probst moved Washington’s cellmate out and forced plaintiff to 9 move in; allowed Washington to commit violence on plaintiff, to take plaintiff’s lower bunk, and 10 gave Washington some lunches that belonged to plaintiff; refused plaintiff’s repeated requests to 11 be moved for safety reasons; allowed Washington to assault plaintiff, and then generated a false 12 rules violation report which was used to deny plaintiff parole in 2012 and 2019. (ECF No. 199 at 13 5.) Finally, plaintiff argues such evidence is relevant to prove that Washington, mentally retarded 14 and diagnosed as mentally ill, was violent and easy to manipulate by defendants, who used 15 Washington to abuse other prisoners, as evidenced by the declarations of other inmates appended 16 to plaintiff’s operative pleading. (ECF No. 199 at 6, citing ECF No. 16-1 at 1-10; 14, 18.) 17 With regard to the “M” sign on Washington’s cell door, plaintiff argues that such sign 18 demonstrates defendants were aware they could manipulate Washington easily. Plaintiff argues 19 that because Washington was engaged with state officials in assaulting other inmates, Washington 20 was “acting under color of law for purposes of [§ 1983.]” (ECF No. 199 at 6), quoting United 21 States v. Price, 383 U.S. 787, 794 (1966); and see also Washington v. Young, 2019 U.S. Dist. 22 LEXIS 31576, 2019 WL 950252 (E.D. Cal. Feb. 27, 2019). 23 B. Discussion 24 Initially, the undersigned observes that plaintiff’s request is not limited in time and 25 therefore would likely include documents not relevant to this action. Plaintiff’s allegation as to 26 what Dr. Bowers did in response to plaintiff’s request is wholly unrelated to Washington’s mental 27 //// 28 //// 1 health records. Also, plaintiff’s reliance on Price is unavailing.4 While a private party who 2 conspires with a public entity to violate a person’s constitutional rights can be held liable under 3 42 U.S.C. § 1983, in this case, plaintiff did not name Washington as a defendant. Thus, 4 Washington is a nonparty as argued by defendants.5 Plaintiff fails to explain the application of 5 Washington v. Young, including failing to provide a specific page cite, and such application is 6 unclear because in Young, the court addressed a motion for terminating sanctions brought by 7 counsel for Young, as well as the prisoner’s motion for appointment of counsel. Id. 8 Finally, “confidential communications between a licensed psychotherapist and [] patients 9 in the course of diagnosis or treatment are protected from compelled disclosure under Rule 501 of 10 the Federal Rules of Evidence.” Jaffee v. Redmond, 518 U.S. 1, 15 (1996). “All agree that a 11 psychotherapist privilege covers confidential communications made to licensed psychiatrists and 12 psychologists.” Id. “After Jaffee, a court cannot force disclosure of [psychotherapist-patient] 13 communications solely because it may be extremely useful to the finder of fact. Giving weight to 14 the usefulness of the evidence as a factor in a decision regarding the scope of the privilege would 15 be a balancing exercise that was barred by Jaffee.” Fitzgerald v. Cassil, 216 F.R.D. 632, 636-37 16 (N.D. Cal. 2003) (quoting Vanderbilt v. Town of Chilmark, 174 F.R.D. 225, 229 (D. Mass. 17 1997)); see also Stallworth v. Brollini, 288 F.R.D. 439, 443 (N.D. Cal. Dec. 21, 2012) (same, and 18 discussing narrow standard applied in determining whether privilege waived). Thus, even if 19 Larry Washington were named as a party, his mental health records would not be discoverable 20 absent his waiver. Because Larry Washington is not a party to this action, he has not placed his 21 mental condition at issue in this action, and has not waived the privilege. 22 4 “Price is the 1960s civil rights era case in which the Supreme Court recognized that private 23 actors could be deemed ‘persons’ within the purview of §§ 1983 and 1985 based on allegations that they conspired and acted jointly with a Mississippi law enforcement officer to kidnap, detain 24 and murder two civil rights workers and their African American companion. The specific allegations in Price were the sheriff and his private co-conspirators hatched a plan whereby the 25 sheriff would release the three men -- who had been detained at the local jail -- late at night and then would follow them as they drove away and then join with the private actors to stop their car, 26 assault and murder them.” Glaeser v. Acad. Sch. Dist. 20, 2005 WL 2592477, at *1 (D. Colo. 27 Oct. 13, 2005). 28 5 Larry Washington paroled from custody on August 31, 2014. (ECF No. 192-1 at 2.) 1 For all of the above reasons, plaintiff’s motion to compel further response to no. 7 is 2 denied. 3 Request for Production of Documents No. 9: Produce all DOCUMENTS from Banner Lassen State Hospital in connection 4 with Richard J. Crane’s medical care for injuries sustained from the in cell assault at High Desert State Prison by inmate Smith, CDCR 5 No. G-35054, including Cat-Scan of Richard Crane’s head injuries. 6 Response: Objection, Vague, ambiguous, and overbroad as to the phrase “in connection with.” Calls [for] documents not within the 7 possession, custody, or control of Defendants and/or equally available to Plaintiff. Finally, this request is duplicative of Plaintiff’s 8 request for production of documents, set one, request eleven. Without waiving this objection, Defendants previously produced all 9 medical records obtained for this litigation, from January 1, 2009, through February 16, 2016 (Bates 184-836). If Plaintiff wants 10 records from a third-party, he should subpoena them. 11 (ECF No. 191 at 7.) Inmate Smith allegedly assaulted plaintiff on January 22, 2011. (ECF No. 12 16 at 6.) 13 A. The Parties’ Positions 14 Plaintiff argues that further response is needed to prove the severity of his injuries from 15 the assault inflicted by inmate Smith. Plaintiff objects that these documents were not produced 16 from Banner Lassen State Hospital, and argues that defendants have a legal right to obtain such 17 documents for plaintiff. (ECF No. 191 at 15), citing Clark, 181 F.R.D. at 472; Allen v. 18 Woodford, 2007 WL 309945, *2 (E.D. Cal. Jan. 30, 2007); Gamez v. Gonzalez, 2015 WL 19 6872802 (E.D. Cal. Nov. 9, 2015) (challenging gang re-validation). 20 The group defendants respond that they have already produced to plaintiff all the medical 21 records they have (662 pages) in their possession, and explained to plaintiff that he should 22 subpoena any requests for records from a third party. (ECF No. 192 at 4, citing ECF No. 192-1 at 23 10). 24 Plaintiff counters that the group defendants’ objection that they do not have access to 25 these medical records should be overruled because defendants have a legal right to obtain such 26 documents. (ECF No. 199 at 7, citing Hunter v. Ogbuehi, 2018 WL 1243421 (E.D. Cal. Mar. 9, 27 2018); Jackson v. Paramo, 2019 WL 246564 (S.D. Cal. Jan. 17, 2019), and Soto, 162 F.R.D. at 28 619.) Plaintiff argues that the requested medical records are important to prove damages, and 1 may identify a potential expert witness. (ECF No. 199 at 8.) 2 B. Discussion 3 Plaintiff fails to demonstrate that defendants have control over plaintiff’s medical records 4 at Banner Lassen State Hospital. The burden of establishing control over the documents sought is 5 on the party seeking production. United States v. Int’l Union of Petroleum & Indus. Workers, 6 870 F.2d 1450, 1452 (9th Cir. 1989). A party is not in “control” of records that the requesting 7 party has equal ability to obtain from public sources. See Estate of Young Through Young v. 8 Holmes, 134 F.R.D. 291, 294 (D. N.V. 1991). Banner Lassen State Hospital is not a party to this 9 action, none of the defendants work for such hospital, and the instant action does not involve 10 challenges to plaintiff’s medical care at such hospital. In any event, plaintiff may obtain these 11 records by providing a release or authorization form to Banner Lassen State Hospital and making 12 arrangements for his records to be copied and sent to plaintiff. Defendants have produced to 13 plaintiff the medical records that were in the actual possession of the CDCR, and are not 14 obligated to obtain anything further in response to request no. 9. 15 Request for Production of Documents No. 14: Produce all DOCUMENTS related to the January 16, 2013, stabbing of Richard 16 J. Crane, CDCR No. C-44519, during GED class at High Desert State Prison, Facility B, by perpetrator Joseph Clay Dolihite, CDCR No. 17 H-56999, including all witnesses statements, investigative reports, physical evidence, including all medical reports and medications 18 which Joseph Clay Dolihite was taking for his psychiatric problems. 19 Response: Vague, ambiguous, and overbroad as to the term “related.” Argumentative and assumes facts not in evidence as to 20 “medications which Joseph Clay Dolihite was taking for his psychiatric problems” and that Dolihite suffers from “psychiatric 21 problems.” Calls for documents subject to the official information and deliberative process privilege; confidential documents whose 22 disclosure may jeopardize the safety and security of the institution; documents protected from disclosure by the rights to privacy and 23 confidentiality, including under the California Information Practices Act of 1977, California Welfare & Institutions Code section 5328, 24 California Code of Regulations, Title 15, sections 3321 and 3370, and the Health Insurance Portability and Accountability Act of 1996; 25 documents not within the possession, custody, or control of Defendants; and, as phrased, documents protected by the attorney 26 client privilege and attorney work product. Additionally, to the extent that Plaintiff is requesting his own records, those records are 27 equally available to him via an Olson review requested by him to his Correctional Counselor. Finally, this request is duplicative of 28 Plaintiff’s request for production of documents, set one, request nine. 1 Without waiving these objections, Defendants previously produced inmate Dolihite’s felony plea in Lassen County Superior Court case 2 number CH030792 (Bates 175-183); the Enemy Chrono for inmates Crane and Dolihite following the January 16, 2013 incident (Bates 3 174); and Incident Report Log No. HDSOP-CSO-13-01-0013 (Bates 1-173). Defendants also produced an audio interview of inmate 4 Dolihite following the January 16, 2013 incident.6 5 (ECF No. 191 at 8.) 6 A. The Parties’ Positions 7 Plaintiff contends that Dolihite waived any right to privacy when he stabbed plaintiff in 8 the neck, and that defendants’ reliance on state law is unavailing. Plaintiff claims he seeks only 9 Dolihite’s psychiatric history and the psychiatric medications he was taking at the time of the 10 incident, which is needed to prove that Dolihite “was told by Defendant Probst, or one of the 11 other Defendants, that plaintiff ‘was telling on people.’” (ECF No. 191 at 16.) 12 The group defendants counter that because inmate Dolihite is not a party to this action, his 13 mental health records are protected from disclosure as stated in their objections, and defendants 14 do not have possession, custody or control of such records. (ECF No. 192 at 4-5.) Defendants 15 argue that the cases cited by plaintiff do not support his contention that the confidentiality of 16 mental health records is waived by a nonparty in a subsequent civil action following an assault. 17 (ECF No. 192 at 5.) Finally, defendants contend that plaintiff’s stated purpose for requesting 18 such records is “entirely unclear.” (Id.) 19 In his reply, plaintiff claims he only seeks to know what psychiatric medications Dolihite 20 was taking, similar to his request no. 7. Plaintiff argues that defendants’ reliance on state laws is 21 not applicable in this federal case. (ECF No. 199 at 8.) 22 B. Discussion 23 Plaintiff’s request no. 9 is denied for the same reasons as his request no. 7. Inmate 24 Dolihite is not a party to this action; his mental health records are protected by the 25 psychotherapist-patient privilege, and Dolihite has not waived such privilege. No further 26 production to request no. 14 is required. 27 6 The response included a “footnote 4” annotation, but plaintiff provided no footnote 4 text. 28 (ECF No. 191 at 8.) 1 Request for Production of Documents No. 15: Produce all DOCUMENTS from the criminal history, and prison history of all 2 five inmate assailants whom are alleged to have assaulted Richard J. Crane, CDCR No. C-44519, mentioned herein and in the Second 3 Amended Complaint herein filed July 15, 2015 in this action (Doc. 16), which state acts of violence by, Larry Washington, CDCR No. 4 H-32312; B. Smith, CDCR No. G-35054; Parker, CDCR No. AC5014; Williams, CDCR No. P-95100. 5 Response: Compound. Defendants also object to Plaintiff’s request 6 for the criminal history of inmates Washington, Parker, Smith, Dolihite, and Williams because records of their criminal convictions 7 are publicly available and, therefore, equally available to Plaintiff. The request for “prison history” is also vague and ambiguous, 8 overbroad and burdensome. The request calls for documents not relevant to the claims or defense of either party and not reasonably 9 calculated to lead to the discovery of admissible evidence; documents not within the possession, custody, or control of 10 Defendants; documents classified as confidential, including on the basis of institutional safety and security; documents protected by 11 privilege, including attorney client, official information, and deliberative process privileges; and documents protected by the 12 rights to privacy and confidentiality, including under the California Information Practices Act of 1977, California Welfare & Institutions 13 Code section 5328, California Code of Regulations, Title 15, sections 3321, 3450, 3370 and 6254, and the Health Insurance Portability and 14 Accountability Act of 1996. Without waiving these objections, Defendants previously produced inmate Dolihite’s felony plea in 15 Lassen County Superior Court case number CH030792 in response to Plaintiff’s request for production of documents, set one, request 16 nine. The other named inmates were not criminally charged as a result of the incidents in Plaintiff’s complaint, and Defendants have 17 not obtained any additional documents regarding any other criminal convictions by these inmates unrelated to the claims in this lawsuit. 18 Therefore, after a reasonable, diligent search, Defendants have produced all responsive documents pertaining to Washington, 19 Parker, Smith, Dolihite, and Williams’ criminal history relevant to the claims in this lawsuit within their possession. Defendants also 20 produced, after obtaining consent, inmates Parker and Williams’ Rules Violation Reports for the March 1, 2013 incident. 21 22 (ECF No. 191 at 8-9.) 23 A. The Parties’ Positions 24 Plaintiff seeks to prove the criminal propensity of the prisoners who assaulted plaintiff, 25 and to prove that their history has a bearing on defendants’ conspiracy with them to assault or kill 26 the plaintiff. (ECF No. 191 at 16.) Plaintiff reiterates his argument that defendants improperly 27 rely on boilerplate and state law objections, and note that defendants failed to submit the 28 appropriate declaration or affidavit to support a claim of privilege. (ECF No. 191 at 16, citing 1 Caruso v. Solorio, No. 1:15-cv-0780 AWI EPG, 2018 U.S. Dist. LEXIS 49671 (E.D. Cal. March 2 26, 2018) (court overrules official information privilege as to witness statements and evidence as 3 described in order); Singleton v. Kernan, 2018 U.S. Dist. LEXIS 84183, 2018 WL 2287444 (S.D. 4 Cal. May 18, 2018).) 5 In addition to their stated objections, the group defendants counter that the fact that the 6 nonparties listed were serving time in state prison would demonstrate criminal propensity, but 7 note such propensity is of questionable relevance. As to the criminal history of such nonparty 8 inmates, defendants renew their objection that criminal records are matters of public record and 9 therefore are equally available to plaintiff. In addition, defendants produced all responsive 10 documents in their possession that pertained to the listed nonparty inmates’ criminal histories 11 relevant to the claims in this lawsuit. (ECF No. 192 at 6.) Finally, defendants point out that they 12 provided a privilege log identifying several responsive documents in connection with plaintiff’s 13 vague and burdensome request for “prison history,” yet plaintiff failed to address such 14 documents. 15 In reply, plaintiff argues that the criminal histories of the inmate assailants are highly 16 relevant to plaintiff’s claims in this action, and that the criminal records are publicly available 17 does not preclude plaintiff’s discovery of their criminal histories. (ECF No. 199 at 9, citing 18 Gamez v. Gonzalez, 2015 WL 6872802 (E.D. Cal. Nov. 9, 2015).) Plaintiff contends that the 19 privilege log does not provide plaintiff with information necessary to evaluate the importance of 20 the withheld documents. Plaintiff repeats his argument that defendants cannot rely on state law to 21 support their claims of privilege. (ECF No. 199 at 10.) Plaintiff argues that Larry Washington’s 22 central file would lead to evidence to support plaintiff’s claims because Washington told plaintiff 23 how guards “allowed [Washington] to fight other inmates repeatedly.” (ECF No. 199 at 11.) In 24 addition, plaintiff alleges that the inmates acted with the defendants to assault plaintiff, thus 25 “evidence of violent or similar preferential treatment by guards could be very relevant to prove 26 they were working for defendants,” arguing that circumstantial evidence may be used to prove a 27 defendant’s knowledge of and participation in a conspiracy. (ECF No. 199 at 11), citing 28 Washington v. Young, 2019 WL 950252, and Hargis v. Foster, 312 F.3d 404 (9th Cir. 2002). 1 Further, plaintiff argues that defendants’ claim that the rules violation reports for inmates 2 Dolihite and Washington are protected by state law privilege does not apply in federal court. As 3 to the confidential closure memorandums from 2013, plaintiff argues that the defendants’ position 4 that such memos are responsive yet privileged solely based on California Code of Regulations 5 Title 15 sections 3341 and 3450 is insufficient, and the privilege log “does not meet the proper 6 standard.” (ECF No. 199 at 12), citing Liberty Northwest Ins. Co. v. Dixon Valve & Coupling 7 Co., 2017 U.S. Dist. LEXIS 34869 (D. Idaho, March 10, 2017); Sahibi v. Gonzales, 2017 U.S. 8 Dist. LEXIS 52161 (E.D. Cal. April 5, 2017). 9 B. Discussion 10 The undersigned sustains defendants’ objections as to the request for the “criminal 11 history” of the inmates who attacked plaintiff. Plaintiff’s request is vague and fails to identify a 12 particular document that would be responsive to such a request. Moreover, as noted by 13 defendants, the inmates were housed in state prison, confirming their conviction for a felony, and 14 such convictions are a matter of public record. No further production is required. 15 As to the remaining requests, defendants objected to many of plaintiff’s requests on the 16 ground that the requested information is privileged. In support of their assertion of privilege, 17 defendants relied largely on state law privilege grounds that are not binding on federal courts in 18 this type of case. Kelly v. City of San Jose, 114 F.R.D. 653, 655-56 (N.D. Cal. 1987). Thus, the 19 undersigned finds that defendants must provide plaintiff with the nonconfidential portions of the 20 rules violation reports FB-13-01-012, Dolihite H56999, and FB-10-02-006, Washington H35312, 21 because such reports are relevant, and the inmates’ right to privacy is outweighed by plaintiff’s 22 need for the reports. 23 The court turns now to the specific confidential documents related to the incidents in 24 which plaintiff was attacked. (ECF No. 192-1 at 19.) As noted in the defendants’ privilege log, 25 the official information privilege is qualified. Sanchez v. City of Santa Ana, 936 F.2d 1027, 26 1033-34 (9th Cir. 1990). “To determine whether the information sought is privileged, courts must 27 weigh the potential benefits of disclosure against the potential disadvantages.” Id. Contrary to 28 plaintiff’s argument, defendants provided a declaration generally identifying the harm that 1 defendants argue would result if such confidential documents were released to plaintiff. But the 2 declaration did not specifically address each document. Therefore, in order for the undersigned to 3 determine whether such potential harm outweighs the benefits of disclosure, defendants are 4 ordered to submit the following documents for in camera review: 5 1. March 6, 2013 Confidential Closure Memorandum for Inmate Crane. 6 2. March 3, 2013 Confidential Interviews. 7 3. January 28, 2013 Confidential Closure Memorandum. 8 4. January 29, 2013 Confidential Closure Memorandum. 9 (ECF No. 192-1 at 19.) Defendants shall submit a clean copy of these documents and a copy 10 containing proposed redactions. The undersigned will then determine whether limited or redacted 11 disclosure of these documents to plaintiff is appropriate, subject to a protective order. 12 To the extent that rules violation reports FB-13-01-012, Dolihite H56999, and FB-10-02- 13 006, Washington H35312 also contain confidential closure memoranda and confidential 14 interviews, defendants shall provide such confidential documents for in camera review as 15 described above. 16 Finally, plaintiff’s request for the entire central files of the five inmates who attacked 17 plaintiff is overbroad. Plaintiff did not narrow his request by time or topic; he claims “relevant 18 and important evidence could be contained in Washington’s central file,” because Washington 19 told plaintiff how guards allowed Washington to repeatedly fight with other inmates. (ECF No. 20 199 at 11 (emphasis added).) But plaintiff fails to identify a specific document or type of 21 document that would reveal such information. Also, defendants aver that each central file is 22 thousands of pages long, which plaintiff has not rebutted. Indeed, inmate Dolihite, H56999, was 23 admitted to CDCR custody on December 15, 1992, and inmate Parker, AC5014, was admitted on 24 March 4, 2010, and inmates Smith, G35054, and Williams, P95100, were admitted in 2008 and 25 2009, respectively.7 Therefore each central file contains myriad documents covering a period of 26 ten and more years. Thus, it would be burdensome, time-consuming and expensive to review 27 7 The CDCR provides the age, admission date, and current location of inmates housed therein. 28 https://inmatelocator.cdcr.ca.gov (accessed March 13, 2020). 1 5,000 pages (or more), and would likely outweigh plaintiff’s need to discover generalized 2 “evidence of violence” or “preferential treatment by guards.” Plaintiff has not identified a single 3 document that might be discovered in these central files, such that his need for the document 4 outweighs the burden on defendants. Plaintiff’s request for these central files is denied. 5 2. Plaintiff’s Set Four: Requests for Personnel Records (Nos. 1-6) 6 Plaintiff seeks further production in response to requests nos. 1 through 6; the court will 7 first set forth the requests and the responses, then discuss the parties’ arguments thereafter. 8 Set Four: Request for Production No. 1: Produce all DOCUMENTS from Defendant Rodriguez’ Personnel File complied 9 [sic] by the California Department of Corrections and Rehabilitation within the past ten years related to use of force, or misconduct 10 allegations raised by other individuals. Information deemed “confidential” or “privileged,” or which is considered an intrusion of 11 privacy rights or laws, can be submitted under seal in a privilege log for the Court’s in camera review and determination. See Kerr v. 12 United States Dist. Ct. for Northern Dist. Cal., 611 F.2d 192.” 13 Response: Objection. Vague, ambiguous, and overbroad as to the term “related” and the phrase “other misconduct raised by other 14 individuals.” Calls for documents not relevant to the claims or defenses of either party and not reasonably calculated to lead to the 15 discovery of admissible evidence; documents subject to the official information and deliberative process privileges; confidential 16 documents whose disclosure may jeopardize the safety and security of the institution; and documents protected from disclosure by the 17 rights to privacy and confidentiality; including under California Penal Code section 832.7, California Evidence Code sections 1043 18 and 1045, and California Code of Regulations, Title 15, sections 3321, 3450, and 3370, and California Government Code section 19 6254. Defendants assume that the phrase “other misconduct raised by other individuals” means alleged violations of CDCR policy 20 and/or California or Federal law made by any person. Without waiving these objections, after a good faith, reasonable, and diligent 21 search, Defendants have nothing responsive to this request. It appears that no responsive documents exist. 22 23 (ECF No. 191 at 9-10.) 24 Set Four: Request for Production No. 2: Produce all DOCUMENTS from Defendant Barton’s Personnel File complied 25 [sic] by the California Department of Corrections and Rehabilitation within the past ten years related to the use of force, and/or 26 misconduct allegations raised by other individuals. Information deemed “confidential” or “privileged,” or which is considered an 27 intrusion of privacy rights or laws, can be submitted under seal in a privilege log for the Court’s in camera review and determination. 28 See Baker v. Hatch, 2010 U.S. Dist. LEXIS 91974[, 2010 WL 1 3212859 (E.D. Cal. Aug. 12, 2010)]. 2 Response: Objection. Vague, ambiguous, and overbroad as to the term “related” and the phrase “other misconduct raised by other 3 individuals.” Calls for documents not relevant to the claims or defenses of either party and not reasonably calculated to lead to the 4 discovery of admissible evidence; documents subject to the official information and deliberative process privileges; confidential 5 documents whose disclosure may jeopardize the safety and security of the institution; and documents protected from disclosure by the 6 rights to privacy and confidentiality; including under California Penal Code section 832.7, California Evidence Code sections 1043 7 and 1045, and California Code of Regulations, Title 15, sections 3321, 3450, and 3370, and California Government Code section 8 6254. Defendants assume that the phrase “other misconduct raised by other individuals” means alleged violations of CDCR policy 9 and/or California or Federal law made by any person. Without waiving these objections, after a good faith, reasonable, and diligent 10 search, Defendants have nothing responsive to this request. It appears that no responsive documents exist. 11 12 (ECF No. 191 at 10.) 13 Set Four: Request for Production No. 3: Produce all DOCUMENTS from Defendant Robinette’s Personnel File compiled 14 by the California Department of Corrections and Rehabilitation within the past ten years related to use of force, retaliation, or other 15 misconduct raised by other individuals. Information deemed “confidential” or “privileged,” or which is considered an intrusion of 16 privacy rights or laws, can be submitted under seal in a privilege log for the Court’s in camera review and determination. See, Soto v. 17 Concord, 162 F.R.D. 603, 615-15 (N.D. Cal. 1995). 18 Response: Objection. Vague, ambiguous, and overbroad as to the term “related” and the phrase “other misconduct raised by other 19 individuals.” Calls for documents not relevant to the claims or defenses of either party and not reasonably calculated to lead to the 20 discovery of admissible evidence; documents subject to the official information and deliberative process privileges; confidential 21 documents whose disclosure may jeopardize the safety and security of the institution; and documents protected from disclosure by the 22 rights to privacy and confidentiality; including under California Penal Code section 832.7, California Evidence Code sections 1043 23 and 1045, and California Code of Regulations, Title 15, sections 3321, 3450, and 3370, and California Government Code section 24 6254. Defendants assume that the phrase “other misconduct raised by other individuals” means alleged violations of CDCR policy 25 and/or California or Federal law made by any person. Without waiving these objections, after a good faith, reasonable, and diligent 26 search, Defendants have no relevant documents responsive to Plaintiff’s request. 27 28 (ECF No. 191 at 11.) 1 Set Four: Request for Production No. 4: Produce all DOCUMENTS from Defendant Probst’s Personnel File compiled by 2 the California Department of Corrections and Rehabilitation within the past ten years related to use of force, retaliation, or other 3 misconduct raised by other individuals. Information deemed “confidential” or “privileged,” or which is considered an intrusion of 4 privacy rights or laws, can be submitted under seal in a privilege log for the Court’s in camera review and determination. See, Soto v. 5 Concord, 162 F.R.D. 603, 615-15 (N.D. Cal. 1995). 6 Response: Objection. Vague, ambiguous, and overbroad as to the term “related” and the phrase “other misconduct raised by other 7 individuals.” Calls for documents not relevant to the claims or defenses of either party and not reasonably calculated to lead to the 8 discovery of admissible evidence; documents subject to the official information and deliberative process privileges; confidential 9 documents whose disclosure may jeopardize the safety and security of the institution; and documents protected from disclosure by the 10 rights to privacy and confidentiality; including under California Penal Code section 832.7, California Evidence Code sections 1043 11 and 1045, and California Code of Regulations, Title 15, sections 3321, 3450, and 3370, and California Government Code section 12 6254. Defendants assume that the phrase “other misconduct raised by other individuals” means alleged violations of CDCR policy 13 and/or California or Federal law made by any person. Without waiving these objections, after a good faith, reasonable, and diligent 14 search, Defendants have no relevant documents responsive to Plaintiff’s request. 15 16 (ECF No. 191 at 11-12.) 17 Set Four: Request for Production No. 5: Produce all DOCUMENTS from Defendant Davey’s Personnel File complied 18 [sic] by the California Department of Corrections and Rehabilitation within the past ten years related to the use of force, retaliation, or 19 misconduct raised by other individuals. Information deemed “confidential” or “privileged,” or which is considered an intrusion of 20 privacy rights or laws, can be submitted under seal in a privilege log for the Court’s in camera review and determination. See, Soto v. 21 Concord, 162 F.R.D. 603, 615-15 (N.D. Cal. 1995). 22 Response: Objection. Vague, ambiguous, and overbroad as to the term “related” and the phrase “other misconduct raised by other 23 individuals.” Calls for documents not relevant to the claims or defenses of either party and not reasonably calculated to lead to the 24 discovery of admissible evidence; documents subject to the official information and deliberative process privileges; confidential 25 documents whose disclosure may jeopardize the safety and security of the institution; and documents protected from disclosure by the 26 rights to privacy and confidentiality; including under California Penal Code section 832.7, California Evidence Code sections 1043 27 and 1045, and California Code of Regulations, Title 15, sections 3321, 3450, and 3370, and California Government Code section 28 6254. Defendants assume that the phrase “other misconduct raised 1 by other individuals” means alleged violations of CDCR policy and/or California or Federal law made by any person. Without 2 waiving these objections, after a good faith, reasonable, and diligent search, Defendants have nothing responsive to this request. It 3 appears that no responsive documents exist. 4 (ECF No. 191 at 12.) 5 Set Four: Request for Production No. 6: Produce all DOCUMENTS from Defendant Weeks’ Personnel File complied 6 [sic] by the California Department of Corrections and Rehabilitation within the past ten years related to the use of force, retaliation, or 7 misconduct raised by other individuals. Information deemed “confidential” or “privileged,” or which is considered an intrusion of 8 privacy rights or laws, can be submitted under seal in a privilege log for the Court’s in camera review and determination. See, Soto v. 9 Concord, 162 F.R.D. 603, 615-15 (N.D. Cal. 1995). 10 Response: Objection. Vague, ambiguous, and overbroad as to the term “related” and the phrase “other misconduct raised by other 11 individuals.” Calls for documents not relevant to the claims or defenses of either party and not reasonably calculated to lead to the 12 discovery of admissible evidence; documents subject to the official information and deliberative process privileges; confidential 13 documents whose disclosure may jeopardize the safety and security of the institution; and documents protected from disclosure by the 14 rights to privacy and confidentiality; including under California Penal Code section 832.7, California Evidence Code sections 1043 15 and 1045, and California Code of Regulations, Title 15, sections 3321, 3450, and 3370, and California Government Code section 16 6254. Defendants assume that the phrase “other misconduct raised by other individuals” means alleged violations of CDCR policy 17 and/or California or Federal law made by any person. Without waiving these objections, Defendants Davey, Rodriguez, Probst, 18 Barton, and Robinette do not have a legal right to obtain documents from Defendant Weeks’ personnel file, and he is represented by 19 separate counsel. Plaintiff should direct his request for records from Weeks’ personnel file to Defendant Weeks and his counsel. 20 21 (ECF No. 191 at 13.) 22 A. The Parties’ Positions 23 Plaintiff argues that he “has alleged that repeated complaints about misconduct, and 24 mistreatment of inmates have been made about at least three of the six defendants, and that 25 nothing was done to stop their abuse and assaults.” (ECF No. 191 at 17.) Plaintiff claims that 26 such evidence about defendant Weeks “would be highly relevant to the claim of supervisory 27 liability against defendant Davey, Captain of the Facility B, where these assaults and murders 28 were happening,” and argues this lead to the Office of the Inspector General responding to 1 complaints by plaintiff and other witnesses. (Id.) Further, such evidence may support plaintiff’s 2 claims against the defendant officers and argues that courts have ordered the production of 3 personnel files over the government’s privilege objection. (ECF No. 191 at 18.) Plaintiff notes 4 that defendant Weeks has had civil rights actions filed against him since 2007, and was a co- 5 defendant with defendant Davey in at least one case. 6 Without waiving their objections, the group defendants point out that after a good faith, 7 reasonable, and diligent search, it appears no responsive documents exist as to defendants 8 Rodriguez, Barton, and Davey. Defendants contend they have no legal right to obtain documents 9 from the personnel file of defendant Weeks, who is represented by separate counsel. 10 As to responses to requests nos. 3 and 4, group defendants located two documents within 11 the personnel files of defendants Robinette and Probst that were responsive to plaintiff’s broad 12 request for documents “related” to “misconduct,” identified in defendants’ privilege log. (ECF 13 No. 192 at 10.) Defendants acknowledge that federal law controls with respect to privilege in 14 section 1983 cases, but argue that the court should consider state privileges when not inconsistent 15 with federal law. (ECF No. 192 at 10), citing Pagano v. Oroville Hosp., 145 F.R.D. 683, 687-88 16 (E.D. Cal. 1993); see also Soto, 162 F.R.D. at 616. Group defendants argue that the identified 17 documents are outside the scope of discovery because they are not relevant or admissible for any 18 purpose under the Federal Rules of Evidence. (ECF No. 192 at 10.) 19 In reply, plaintiff argues that all of the defendants have civil rights cases filed against 20 them in federal court, primarily for the use of excessive force and denial of due process, but also 21 for other misconduct. (ECF No. 199 at 13) (citing three Eastern District cases). Plaintiff 22 reiterates his argument that defendants’ objections are without merit because discovery is based 23 on federal law in civil rights cases. (ECF No. 199 at 13.) In addition, plaintiff notes that the 24 production of such documents can be governed by a protective order. 25 B. Discussion 26 The group defendants’ argument as to defendant Weeks’ personnel file is well-taken, and 27 no further action on Weeks’ personnel file, or the personnel files of defendants Rodriguez, 28 Barton, and Davey is required. In an abundance of caution, the group defendants shall submit for 1 in camera review the February 14, 2018 personnel document and the March 4, 2012 personnel 2 document discovered within the personnel files of defendants Robinette and Probst (ECF No. 3 192-1 at 37). 4 3. Set Four: Request No. 7 (Dolihite’s Criminal History) 5 Set Four: Request for Production No. 7: Produce all DOCUMENTS from the criminal history of Joseph Clay Dolihite 6 CDCR No. H-56999, who had committed an attempted murder on Richard Joseph Crane, CDCR No. C44519, on January 16, 2013, in 7 GED Class at High Desert State Prison. Produce Joseph Dolihite’s CDCR C-File for copying of records of violence, or mental health 8 history. 9 Response: Objection. This request is duplicative of Plaintiff’s request for production of documents, set three, request fifteen and is 10 compound. Defendants further object to Plaintiff’s request for the criminal history of inmate Dolihite because records of his criminal 11 convictions are publicly available and, therefore, equally available to Plaintiff. Defendants also object to Plaintiff’s request for Dolihite’s 12 C-file because this request is overbroad and burdensome. The request calls for documents not relevant to the claims or defenses of 13 either party and not reasonably calculated to lead to the discovery of admissible evidence; documents not within the possession, custody, 14 or control of Defendants; documents classified as confidential, including on the basis of institutional safety and security; documents 15 protected by privilege, including attorney client, official information, and deliberate process privileges; and documents protected by the 16 rights to privacy and confidentiality, including under California Information Practices Act of 1977, California Welfare & Institutions 17 Code section 5328, California Code of Regulations, Title 15, sections 3321, 3450, 3370 and 6254, and the Health Insurance Portability and 18 Accountability Act of 1996. Without waiving these objections, Defendants refer Plaintiff to their response to Plaintiff’s request for 19 production of documents, set three, request fifteen. 20 (ECF No. 191 at 13-14.) 21 A. The Parties’ Positions 22 Plaintiff included no specific arguments in support of his motion to compel further 23 response to request no. 7. (ECF No. 191, passim.) 24 The group defendants point out that although plaintiff included this request in his motion, 25 he did not address it within the motion. Defendants object that this request duplicates plaintiff’s 26 request for production of documents, set three, request no. 15, which sought production of “the 27 criminal history, and prison history of all five inmate assailants whom are alleged to have 28 //// 1 assaulted [plaintiff].” (ECF No. 199 at 10, citing ECF No. 191 at 7, compare ECF No. 191 at 6 to 2 ECF No. 191 at 11.) 3 Plaintiff also failed to specifically address request no. 7, set four, in his reply. (ECF No. 4 199, passim.) 5 B. Discussion 6 Due to the duplicative nature of plaintiff’s request, as well as his failure to separately 7 argue concerning this request, no further production in response to No. 7 is required. 8 V. Further Scheduling 9 Because additional production is required by this order and includes an in camera review 10 of certain documents, the deadline for filing pretrial motions is extended until thirty days beyond 11 the court’s ruling on the in camera review. “The district court is given broad discretion in 12 supervising the pretrial phase of litigation.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 13 604, 607 (9th Cir. 1992) (citation and internal quotation marks omitted). 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. Plaintiff’s motion to compel (ECF No. 191) any further response by defendant Weeks 16 is denied; 17 2. Plaintiff’s request for judicial notice (ECF No. 191 at 4) is denied without prejudice; 18 3. Plaintiff’s motion to compel (ECF No. 191) is partially granted, as follows: 19 A. In response to Plaintiff’s Request for Production of Documents, Set Three, 20 Request for Production of Documents No. 15, the group defendants shall provide plaintiff 21 with the nonconfidential portions of the rules violation reports FB-13-01-012, Dolihite 22 H56999, and FB-10-02-006, Washington H35312, within thirty days. 23 B. Within thirty days from the date of this order, defendants shall submit the 24 following documents to the undersigned for in camera review: 25 1. March 6, 2013 Confidential Closure Memorandum for Inmate Crane. 26 2. March 3, 2013 Confidential Interviews. 27 3. January 28, 2013 Confidential Closure Memorandum. 28 4. January 29, 2013 Confidential Closure Memorandum. 1 5. Any confidential closure memoranda and confidential interviews included in 2 | rules violation reports FB-13-01-012, Dolihite H56999, and FB-10-02-006, Washington H35312. 3 6. The February 14, 2018 personnel document and the March 4, 2012 personnel 4 | document discovered within the personnel files of defendants Robinette and Probst. 5 The group defendants shall submit a clean copy of each document and a copy containing 6 | proposed redactions to the undersigned, clearly marked for in camera review. The undersigned 7 | will then determine whether limited or redacted disclosure of these documents to plaintiff is 8 || appropriate, subject to a protective order. 9 C. In all other respects, the motion to compel is denied. 10 4. The deadline for filing pretrial motions is extended until thirty days beyond the court’s 11 | ruling on the in camera review. 12 || Dated: March 19, 2020 8 Aectl Aharon 14 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 15 16 /eran0208.mte 17 18 19 20 21 22 23 24 25 26 27 28 24