(PC) Hounihan v. Villasenor ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JASON SCOTT HOUNIHAN, Case No. 1:23-cv-00163-ADA-EPG (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR DISCOVERY WITHOUT PREJUDICE 13 v. (ECF No. 50) 14 JOSE C. VILLASENOR, 15 Defendant. 16 17 Plaintiff Jason Scott Hounihan is a prisoner proceeding pro se and in forma pauperis in 18 this civil rights action filed pursuant to 42 U.S.C. § 1983. This case proceeds on Plaintiff’s Eighth 19 Amendment sexual assault claim against Defendant Villasenor. (ECF No. 5). 20 Plaintiff filed a motion docketed on November 6, 2023 (ECF No. 50), which he titled 21 “Pitchess motion.” In the motion, Plaintiff seeks Brady materials, unspecified documents that he 22 claims have been denied to him, and “any and all complaints lodged against the defendant while 23 working in the facilities at the Tulare County Sheriff’s Department,” including all grievances. 24 The Court will deny the motion without prejudice. 25 First, neither a Brady nor a Pitchess motion is proper procedure for obtaining personnel 26 records in federal civil rights cases. A Pitchess motion is a “procedural method established in 27 Pitchess v. Superior Court, 11 Cal. 3d 531, 522 P.2d 305 (1974), and later codified by California 28 Penal Code §§ 832.7 and 832.8 and California Evidence Code §§ 1043-1045, that allows for 1 discovery of otherwise privileged personnel records in California.” Garrett v. Macomber, No. 2 2:16-CV-1336, 2019 WL 6330269, at *8 (E.D. Cal. Nov. 26, 2019). Brady v. Maryland, 373 U.S. 83 (1963), relates to suppression of evidence in criminal cases. In this federal civil rights action, it 3 is the Federal Rules of Civil Procedure that apply and questions of privilege are resolved by 4 federal law. Kerr v. U.S. District Court for the Northern District of California, 511 F.2d 192, 197 5 (9th Cir.1975), aff’d on procedural grounds, 426 U.S. 394, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); 6 Hendrix v. Gomez, No. 2:21-CV-01062, 2023 WL 4936684, at *2 (E.D. Cal. Aug. 2, 2023). 7 To the extent that Plaintiff seeks to discover Defendant’s personnel files, the proper vehicle for 8 doing so is a request for production of documents pursuant to Rule 34(a). 9 Second, to the extent Plaintiff’s motion can reasonably be construed as a motion to 10 compel discovery responses, Plaintiff has failed to show that he submitted these requests to 11 Defendant through a request for production under Federal Rule of Civil Procedure 34. A motion 12 to compel may be filed only after a party fails to adequately respond to discovery requests. Fed. 13 R. Civ. P. 37(a)(3)(B). Moreover, Plaintiff’s motion fails to comply with the requirements of the 14 scheduling order: “[A motion to compel] should include a copy of the request(s) and any response 15 to the request(s) at issue.” (ECF No. 34 at 5). 16 Finally, if Plaintiff intended his motion as a request for production, he should direct his 17 discovery requests directly to the opposing party, consistent with the requirements of the 18 scheduling order: “A party may serve on any other party no more than . . . 15 requests for 19 production of documents.” (ECF No. 34 at 3). If, after Plaintiff serves his discovery requests, 20 Defendant determines that such documents exist but are not in Defendant’s possession, custody, or control, Defendant shall identify the appropriate custodian of records so that Plaintiff may 21 subpoena the records if he wishes. Plaintiff’s requests for issuance of a subpoena should follow 22 procedure outlined in the Court’s scheduling order. (ECF No. 34 at 4). 23 \\\ 24 \\\ 25 \\\ 26 \\\ 27 \\\ 28 l Accordingly, IT IS ORDERED that Plaintiff's motion (ECF No. 50) is denied without 9 | prejudice. Plaintiff may renew his motion to compel in no later than the February 5, 2024 3 deadline for motions to compel further discovery responses set forth in the Court’s scheduling 4 order. (ECF No. 34 at 5). IT IS SO ORDERED. 6 , | Dated: _ November 7, 2023 □□□ hey — UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28