Hammler v. Hernandez ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ALLEN HAMMLER, Case No.: 18cv259-CAB-MDD 12 Plaintiff, ORDER GRANTING IN PART AND 13 v. DENYING IN PART PLAINTIFF'S MOTION TO COMPEL 14 J. HERNANDEZ, Correctional DISCOVERY RESPONSES Officer, and A. MAGALLANES, 15 Correctional Officer, 16 Defendants. [ECF Nos. 41, 44] 17 18 I. INTRODUCTION 19 Plaintiff Allen Hammler (“Plaintiff”), a state prisoner proceeding pro se 20 and in forma pauperis, initiated this action against Defendants J. Hernandez 21 and A. Magallanes (collectively, “Defendants”) by filing a Complaint pursuant 22 to 42 U.S.C. § 1983. (ECF Nos. 1, 25). On August 12, 2019, Plaintiff served 23 requests for admissions on Defendant Magallanes. (ECF No. 37, Exhibit A). 24 On September 4, 2019, Plaintiff served requests for production of documents 25 on Defendants. (Id.). Defendants objected to several of Plaintiff’s requests on 26 the grounds that they were “vague, ambiguous, and overbroad.” (Id.). 1 Defendants to meet and confer on Defendants’ objections to his requests for 2 admissions and requests for production of documents. (ECF No. 37). The 3 Court ordered the parties to meet and confer and file status reports following 4 the meeting to inform the Court whether the dispute has been resolved, and 5 if not, which issues remain. (ECF No. 40). 6 On December 9, 2019, the parties met and conferred telephonically. 7 (ECF No. 41 at 1). As a result of the meet and confer, the parties were able to 8 resolve all but four issues: Plaintiff’s requests for production numbers 2, 3, 6, 9 and 8. (Id.; ECF No. 44). For the reasons stated herein, the Court GRANTS 10 IN PART AND DENIES IN PART Plaintiff’s motion to compel as presented 11 in the parties’ status reports. (ECF Nos. 41, 44). 12 II. LEGAL STANDARD 13 The Federal Rules of Civil Procedure authorize parties to obtain 14 discovery of “any nonprivileged matter that is relevant to any party’s claim or 15 defense and proportional to the needs of the case . . . .” Fed. R. Civ. P. 16 26(b)(1). “Information within the scope of discovery need not be admissible in 17 evidence to be discoverable.” Id. District Courts have broad discretion to 18 limit discovery where the discovery sought is “unreasonably cumulative or 19 duplicative, or can be obtained from some other source that is more 20 convenient, less burdensome, or less expensive.” Fed. R. Civ. P. 26(b)(2)(C). 21 A party may request the production of any document within the scope of 22 Rule 26(b). Fed. R. Civ. P. 34(a). “For each item or category, the response 23 must either state that inspection and related activities will be permitted as 24 requested or state an objection to the request, including the reasons.” Fed. R. 25 Civ. P. 34(b)(2)(B). If the responding party chooses to produce responsive 26 information, rather than allow for inspection, the production must be 1 reasonable time specified in the response. Id. An objection must state 2 whether any responsive materials are being withheld on the basis of that 3 objection. Fed. R. Civ. P. 34(b)(2)(C). An objection to part of a request must 4 specify the part and permit inspection or production of the rest. Id. The 5 responding party is responsible for all items in “the responding party’s 6 possession, custody, or control.” Fed. R. Civ. P. 34(a)(1). Actual possession, 7 custody or control is not required. Rather, “[a] party may be ordered to 8 produce a document in the possession of a non-party entity if that party has a 9 legal right to obtain the document or has control over the entity who is in 10 possession of the document.” Soto v. City of Concord, 162 F.R.D. 603, 620 11 (N.D. Cal. 1995). 12 III. DISCUSSION 13 1. Requests for Production Numbers 2 and 3 14 Plaintiff requested Defendants produce “[s]till shots from each and 15 every one of the surveillance camera(s) mounted in and ar[]ound Building B-6 16 where the events in controversy took place, i.e., photo(s) from each of the 17 camera(s), one single shot” and “[m]aintenance reports relevant to teach and 18 every one of the surveillance camera(s) mounted in and around Building B-6 19 where the events in controversy took place stating which cameras were 20 functional on the date of 11,15,2016 and which were not.” (ECF No. 37 at 18- 21 19). As to both requests, Defendants responded that “[a]fter a diligent search 22 and reasonable inquiry, no responsive documents or tangible things were 23 located.” (ECF No. 39-1 at 6-8). A party’s statement that, after a reasonable 24 and diligent search, there exist no responsive documents to a production 25 request is an acceptable reply. See Uribe v. McKesson, No. 08cv1285 DMS 26 (NLS), 2010 WL 892093, at *2-3 (E.D. Cal. Mar. 9, 2010). Plaintiff states 1 them from CDCR, but she responded that “it would be to create evidence 2 which the Defense has no obligation to do.” (ECF No. 44 at 2). If responsive 3 documents do exist, but the responsive party claims lack of possession, 4 custody or control, the party must state so. Ochotorena v. Adams, No. 1:05- 5 cv-01524-LJO-DLB (PC), 2010 WL 1035774, at *3-4 (E.D. Cal. Mar. 19, 2010). 6 Based on Defendants’ supplemental responses, it does not appear that any 7 documents were withheld. (See ECF No. 39-1 at 6-8). Accordingly, Plaintiff’s 8 motion to compel production of still shots and maintenance reports as 9 presented in his status report is DENIED. 10 2. Request for Production Number 6 11 In his sixth request for production of documents, Plaintiff requests “[a] 12 list of all Prisoner/Patient(s) who attended the Mental Health Group with 13 Plaintiff Hammler on date of 11,15,2016.” (ECF No. 37 at 20). Defendants 14 objected on the grounds that the request “seeks information protected by 15 third-parties’ right to privacy,” that the information is irrelevant and 16 disproportionate to the needs of the case. (Id.). The Court may limit the 17 scope of discovery to protect the privacy interests of litigants and third 18 parties. See Fed. R. Civ. P. 26(c); Seattle Times Co. v. Rhinehart, 467 U.S. 20, 19 34-35 (1984). These inmates, as third parties, have the right to have their 20 privacy protected. That right is not absolute and may be overcome by a 21 strong showing of relevance. Plaintiff contends these inmates may have 22 heard parties to this action “leveling threats during group.”1 (ECF No. 44 at 23 5). Plaintiff has only alleged that these inmates may have heard a threat 24 25 1 Plaintiff’s First Amended Complaint alleges that Defendant Hernandez pushed Plaintiff 26 off of a stool at Mental Health Group on November 15, 2016 and told Plaintiff “I’m gonna escort you to yard and we’ll see if you’ll be talkin’ all that shit . . . just go to yard and don’t 1 during Mental Health Group. That is not enough. In any event, Plaintiff 2 does have evidence to support his claim because he has presented another 3 inmate’s declaration regarding the alleged threats. (See ECF No. 25 at 5). As 4 a result, the Court DENIES Plaintiff’s motion to compel the names of the 5 inmates who attended Mental Health Group on November 15, 2016. 6 3. Request for Production Number 8 7 Finally, Plaintiff seeks “[a]ll cell search rec[eipts] engendered on the 8 date of 11,15,2016 and date of 11,28,2016.” (ECF No. 7 at 21). The parties 9 apparently did not discuss this request during the telephonic meet and 10 confer. (See ECF Nos. 41, 44). Plaintiff alleges in the First Amended 11 Complaint that correctional officers Hugh and Barrientos searched his cell on 12 November 28, 2016. (ECF No. 25 at 11-12). Plaintiff alleges his cell was 13 searched in retaliation for reporting Defendant Hernandez’s behavior. (Id. at 14 11). However, Plaintiff does not allege his cell was searched on November 15, 15 2016. (Id. at 4-11). Defendants argue this information is irrelevant because 16 Defendants did not search Plaintiff’s cell. Because Plaintiff does not allege in 17 his First Amended Complaint that his cell was searched on November 15, 18 2016, the Court agrees with Defendants that any cell search receipt on that 19 date is irrelevant. However, because Plaintiff alleges that his cell was 20 searched on November 28, 2016 in retaliation for reporting Defendant 21 Hernandez’s behavior, a cell search receipt is discoverable. Accordingly, 22 Defendants must produce to Plaintiff a cell search receipt for a search of 23 Plaintiff’s cell conducted on November 28, 2016 to the extent that it exists. 24 IV. CONCLUSION 25 Based on the foregoing, the Court GRANTS IN PART AND DENIES 26 IN PART Plaintiff’s motion to compel as presented in the parties’ status 1 ||for production numbers 2, 3, and 6 are DENIED, and Plaintiff's motion to 2 ||compel request for production number 8 is GRANTED IN PART. To the 3 ||extent such documents exist, Defendants must produce to Plaintiff a cell 4 ||search receipt for a search of Plaintiffs cell conducted on November 28, 2016 5 or before January 22, 2020. Dated: January 8, 2020 +L s | [ Hon. Mitchell D. Dembin 8 United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27