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March 25, 2008
BRUCE ECKHARDT, PETITIONER,v.SUPERINTENDENT, ATTICA CORRECTIONAL FACILITY, RESPONDENT.
On May 18, 2004, Petitioner Bruce Eckhardt, represented by counsel, filed a Petition under 28 U.S.C. § 2254for a writ of habeas corpus. He challenges the judgment entered on July 23, 2001, in New York Supreme Court, Otsego County, convicting him, after a jury trial, of Murder in the Second Degree (New York Penal Law § 125.25(1)), and sentencing him to an indeterminate term of from 25 years to life. Petitioner's conviction was affirmed by the Appellate Division, Third Department, and leave to appeal to the Court of Appeals was denied. People v. Eckhardt, 761 N.Y.S. 2d 338 (N.Y. App. Div. 2002); leave denied 100 N.Y.2d 620 (Exhibits C, E).
The Petition for habeas relief is based upon the following grounds:
1. His Fourth Amendment rights were violated when evidence was used against him that had been obtained pursuant to an unconstitutional search and seizure.
2. His Fifth and Sixth Amendment rights were violated when statements were used against him that were obtained without Miranda warnings and without his attorney being present.
(Dkt. No. 1 at 5.)
Petitioner was indicted for allegedly murdering his estranged girlfriend, Donna Evans. Prior to trial he moved to suppress physical evidence that had been seized, without a warrant, from the residence that he had shared with Ms. Evans and from a rental car. He also sought to suppress statements that he had made that were obtained without prior Miranda warnings and at a time that he claims he was represented by counsel.
Since I find, as discussed in Part IV.A below, that Petitioner's Fourth Amendment claim is not cognizable in this habeas proceeding, I will not address the facts underlying that claim. With respect to his Fifth and Sixth Amendment claims, on several occasions statements were obtained from Petitioner during the period August, 1998, through December 16, 1999, when he was arrested*fn1 .
At the County Court suppression hearing, attorney William Schebaum testified that from June or July through September of 1998, he represented Petitioner in an Otsego County Family Court matter involving Ms. Evans. (Trial Transcript, Vol. 1, Hearing of 8/28/00 at 43-44.) At some point during that period he had a telephone conversation with a member of the New York State Police. He initiated the call because Petitioner had told him that the State Police wanted to talk to Petitioner and also because there was an issue concerning Petitioner's access to the residence he had been sharing with Ms. Evans. (Id. at 45-46.) Mr. Schebaum testified that in the telephone conversation with an unidentified member of the State Police "I indicated that I was [Petitioner's] attorney and I was representing him and that should they want to speak with him, that they could let me know or contact me in some fashion and maybe something could be arranged". (Id. at 47.) He could not recall giving the officer a specific instruction not to question Petitioner in his absence (Id. at 48); indeed, he specifically disavowed a statement he had made in an affidavit that he had instructed the police not to question Petitioner. He testified: "That affidavit probably needs to be corrected somewhat." (Id. at 48-49.)
Mr. Schebaum also could not recall whether he was told that the police wanted to talk to Petitioner about Ms. Evans' disappearance. (Id. at 48, 61.) He could not recall ever saying anything to the police specifically related to the disappearance of Ms. Evans. (Id. at 69.) Although his affidavit stated that this conversation occurred on August 1, 1998, and it was with the State Police in Keesville, New York, in his testimony Mr. Schebaum disavowed these statements. (Id. at 55.) He made no notes about the conversation. (Id.. at 56.)
A New York State Police Investigator, Kevin More, testified that on August 13, 1998, he had a telephone conversation with Mr. Schebaum. Investigator More testified that Mr. Schebaum called up and wanted to talk about, he said was a matter of some checks, that a subject by the name Bruce Eckhardt had some dealings with his employer over some checks. He said that, he asked if I was investigating the case and I told him that I wasn't and I mentioned that he had spoken to Sergeant Brown a couple weeks prior to that time about the checks and he also mentioned that he was representing Mr. Eckhardt in a Family Court matter. He said that -- he said he had spoken to Mr. Eckhardt and told him that if the State Police were looking for him, to come on in and get whatever matter taken care of that he had to. He also said that Mr. Eckhardt was staying at his brother's house and that if we needed to get a hold of him, that Mr. Schebaum could get him and have him come in the following day.
(Id. at 86.) According to Investigator More, Donna Evans was not discussed during the conversation. (Trial Transcript, Vol. 2, Hearing of 9/25/00 at 9.) The investigator made notes of the conversation after it concluded. (Id. at 8.)
In his decision the County Court Judge ruled:
Mr. Schebaum's testimony, at odds as it was with his previously submitted affidavit, significant portions of which he disavowed at the hearing, cannot be relied upon to establish that he communicated to the New York State Police that he represented the Defendant in connection with the disappearance of Donna Evans. Mr. Schebaum's testimony not only disavowed certain factual statements in his affidavit, the sum and substance of his testimony was extremely vague as to dates, to whom he spoke and about what he spoke ... Schebaum's claim that he specifically told some member of the state police that he represented Defendant in connection with the disappearance of Donna Evans is simply not established by the credible evidence. His testimony did not establish that he represented the defendant in connection with the disappearance of Ms. Evans, nor that he or the Defendant ever communicated this to the police.
(State Court Records, Ex. I at 106-07.) The Judge further found:
To the extent Mr. Schebaum's testimony at the hearing was inconsistent with that of Investigator More's, the Court resolves those discrepancies in favor of the People's evidence. (Id. at 108.) The Court also found that Petitioner's right to counsel did not attach until his arrest on December 19, 1999. Id.
The Appellate Division affirmed, stating: "The evidence does not demonstrate that the police knew that defendant had requested or retained an attorney to represent him in connection with the disappearance of Evans." (State Court Records, Ex. C, at 3.)
Petitioner asserts that his "conviction [was] obtained by use of evidence gained pursuant to an unconstitutional search and seizure". (Dkt. No. 1 at 5.) As "supporting facts" for this assertion, Petitioner states:
Decedent's*fn2 landlord agent told police upon their arrival at Defendant's and Decedent's home that she had twice searched the home and not found Decedent. Police conducted a three-day warrantless search and extensive seizure of forensic evidence on alleged basis of "emergency exception" rule. However, there was no evidence that Decedent was in "immediate need of assistance".
Id. These claims are unreviewable by this Court.
In Stone v. Powell, 428 U.S. 465 (1976), the Supreme Court held that a petitioner is not entitled to habeas relief if the state courts provided "an opportunity for full and fair litigation" of a claim under the Fourth Amendment. Stone v. Powell, 428 U.S. at 482. Thus, a federal court may only review a claim based on the Fourth Amendment "(a) if the state has provided no corrective procedures at all to redress the alleged Fourth Amendment violations; or (b) if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process." Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992) (citing Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977)); Campbell v. Greene, 440 F. Supp. 2d at 138 (citing Capellan). New York law provides such a corrective procedure for Fourth Amendment claims in the form of a suppression hearing. See Crim. Proc. Law §§ 710.10 et seq., see also Cappellan v. Riley, 975 F.2d at 70 n. 1 (holding that "federal courts have approved New York's procedure for litigating Fourth Amendment claims ... as being facially adequate"); Campbell v. Greene, 440 F. Supp. 2d at 138.
Here, Petitioner was provided with a suppression hearing and he does not claim that he was precluded from a full and fair opportunity to litigate his Fourth Amendment claims. See Pet. The Second Circuit has held that "once it is established that a petitioner has had an opportunity to litigate his or her Fourth Amendment claim (whether or not she took advantage of the state's procedure), the court's denial of the claim is a conclusive determination that the claim will never present a valid basis for federal habeas relief." Graham v. Costello, 299 F.3d 129, 134 (2d Cir. 2002).
However, Petitioner claims that there "was an 'unconscionable breakdown' in the state courts because the state failed to conduct a reasoned inquiry into petitioner's claim." (Dkt. No. 11 at 20.) The reason for this "unconscionable breakdown", according to Petitioner, is that the state courts reached, in his opinion, an incorrect conclusion.
The Otsego County Court erroneously found that the warrantless police entry occurred under exigent circumstances, despite the clear evidence that no emergency situation existed. The intermediate Appellate Court affirmed the County Court findings, despite the clear evidence that no emergency situation existed.
Id. However, a "mere disagreement with the outcome of a state court ruling is not the equivalent of an unconscionable breakdown in the state's corrective process". Capellan v. Riley, 975 F.2d at 72.
It is undisputed that Petitioner was provided with a pretrial suppression hearing, and he makes no claim that he was denied the opportunity to fully present his arguments at that hearing. Following the hearing, the County Court Judge issued a written decision in which he addressed in some depth, inter alia, the Fourth Amendment suppression issues. (State Court Records, Ex. I.) The Appellate Division, Third Department, on direct appeal following Petitioner's conviction, also addressed these issues in some depth. (State Court Records, Ex. C.) In short, although Petitioner vigorously disputes the state courts' rulings on his Fourth Amendment suppression claims, this Court finds that there was not an "unconscionable breakdown" of the state court procedures, and therefore Petitioner's claims are unreviewable by this Court. I accordingly recommend that the Petition be denied with respect to the Fourth Amendment claims.
The Petition in this proceeding states:
Defendant retained attorney for mutual family court case with Decedent. Decedent disappeared during pendency of family court proceedings. Defendant's attorney called state police to advise that he was Defendant's attorney for purposes of police investigation into Decedent's disappearance. Police repeatedly questioned Defendant in absence of attorney.
(Dkt. No. 1 at 5.) Petitioner then argues, in wholly conclusory terms and without citations to any legal authority, that his "sixth amendment right under the federal constitution to assistance of counsel in a criminal prosecution, and [his] right under the fifth amendment of the constitution not to be compelled to incriminate himself were violated." (Dkt. No. 11 at 21.)
1. Exhaustion
Respondent first argues that Petitioner failed to present these Federal Constitutional claims to the state courts. (Dkt. No. 9 at 20-21.) To be eligible for habeas relief the Federal Constitutional claim must have been "fairly presented" to the state courts. Picard v. Connor, 404 U.S. 270, 275 (1971). This is to ensure that the state courts are given the "opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Id. Finally, habeas corpus petitioners bear the burden of demonstrating that they have exhausted available state remedies. Cruz v. Artuz, Civ. No. 97-2508, 2002 WL 1359386, at *8 (E.D.N.Y. June 24, 2002) (citing Colon v. Johnson, 19 F. Supp. 2d 112, 119-20 (S.D.N.Y. 1998); United States ex rel. Cuomo v. Fay, 257 F.2d 438, 442 (2d Cir. 1958)); see also Ruine v. Walsh, Civ. No. 00-3798, 2002 WL 1349713, at *2 (S.D.N.Y. June 19, 2002) (citing Colon, 19 F. Supp. 2d at 119-20)).
Here Respondent acknowledges that Petitioner's Brief to the Appellate Division stated "Defendant's right to counsel and his right against self-incrimination were thus violated." State Court Records, Ex. A at 45. However, Respondent argues that in his Brief Petitioner "relied exclusively on state law and made no reference to any federal constitutional issues", and that "the state cases petitioner relied on [did not] cite federal law as a basis for their decisions." (Dkt. No. 9 at 21.)
In Baldwin v. Reese, 541 U.S. 27 (2004), the Supreme Court held that a petitioner who did not "explicitly say that the words 'ineffective assistance of appellate counsel' refers to a federal claim" failed to exhaust that claim. Id. at 33. The Court stated that a litigant wishing to raise a federal issue can easily indicate the federal law basis for his claims in a state-court petition or brief, for example, by citing in conjunction with the claim the federal source of law on which he relies, or a case deciding such a claim on federal grounds, or by simply labeling the claim 'federal.'
Id. at 32. Petitioner here did none of these things with respect to his right to counsel claim*fn3 , and indeed the Appellate Division's decision was explicitly limited to the state constitutional claim: "Accordingly, we find that defendant's state constitutional right to counsel was not violated." People v. Eckhardt, 761 N.Y.S.2d 338, 341 (N.Y. App. Div. 2003).
Nevertheless, subsequent to Baldwin, the Second Circuit addressed a question that the Supreme Court in Baldwin explicitly left open: "Where state and federal claims share the same legal standard, has a federal claim been 'fairly presented' when the state court necessarily rejects the federal claim in ruling on the state claim?" Jackson v. Edwards, 404 F.3d 612, 620 (2d Cir. 2005). The Jackson court answered that question affirmatively, but that does not help Petitioner because here the New York and federal right to counsel do not have the same legal standard. Under the New York Constitution, according to the cases cited by Petitioner in his Appellate Division Brief, "the right to counsel attaches indelibly where an uncharged individual has actually retained a lawyer in the matter at issue." People v. West, 81 N.Y.2d 370, 373-374 (1993). Under the Federal Constitution, to the contrary, the Sixth Amendment right to counsel "does not attach until after the initiation of formal charges." Moran v. Burbine, 475 U.S. 412, 431 (1986).
See also Pulliam v. West, No. 03 CV 4514 (JG), 2004 WL 2413385, at *6 (E.D.N.Y. Oct. 12, 2004) ("The Sixth Amendment right to counsel does not attach until after initiation of formal charges") (citing Moran); Lazoda v. Magg, 900 F.Supp. 596, 604 (N.D.N.Y.,1995) (Munson, J.) ("The right to counsel does not attach until the filing of formal charges") (citing Moran). In short, since the legal standards are different Petitioner failed to "fairly present" his Sixth Amendment right to counsel claim to the state courts.
With respect to his Fifth Amendment right against self-incrimination claim, this claim clearly was not "fairly presented" to the state courts. It is true that in his Appellate Division brief Petitioner referred to his "right to counsel and his right against self-incrimination." State Court Records, Ex. A at 45. However, this is his sole reference to the right against self-incrimination, and the entire discussion in his Brief is in the context of his right to counsel. The People's Appellate Brief and the Appellate Divisions's decision similarly, and understandably, are limited to the right to counsel issue. Furthermore, Petitioner's letter seeking leave to appeal to the Court of Appeals refers only to the "right to counsel," and makes no mention of the right against self-incrimination. State Court Records, Ex. D.
Accordingly, I find that Petitioner has not met his burden of demonstrating that his claim that statements were elicited from him in violation of his Fifth and Sixth Amendment rights has been exhausted.
When a claim has not been fairly presented to the state courts, a federal court may find that there is an absence of available state remedies "if it is clear that the unexhausted claim is procedurally barred by state law and, as such, its presentation in the state forum would be futile." Aparicio, 269 F.3d at 90 (citing Reyes v. Keane, 188 F.2d 136, 139 (2d Cir. 1997)); Lurie v. Wittner, 228 F.3d 113, 124 (2d Cir. 2000), cert. denied, 532 U.S. 943 (2001). Therefore, this Court must determine whether it would be futile for Petitioner now to present his Fifth and Sixth Amendment claims to the state courts.
Since "New York does not otherwise permit collateral attacks on a conviction when the defendant unjustifiably failed to raise the issue on direct appeal," Aparicio, 269 F.3d at 91 (citing N.Y. Crim. Proc. Law § 440.10(2)(c)), Petitioner could not now properly raise these claims in a motion to vacate his judgment of conviction pursuant to Criminal Procedure Law § 440.10. See Aparicio, 269 F.3d at 91; Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995). Therefore, these claims are "deemed exhausted" for purposes of Petitioner's habeas application. Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 170 (2d Cir. 2000); Senor v. Greiner, Civ. No. 00-5673, 2002 WL 31102612, at *10 (E.D.N.Y. Sept. 18, 2002). However, although these claims are "deemed exhausted," they are also procedurally barred. See Aparicio, 269 F.3d at 90 (citing Coleman v. Thompson, 501 U.S. 711 at 735 n.1).
Federal courts may only consider the substance of procedurally barred claims where the petitioner can establish both cause for the procedural bar and prejudice, or alternatively, that a fundamental miscarriage of justice would occur absent federal court review. See St. Helen v. Senkowski, 374 F.3d at 184 ("[i]n the case of procedural default (including where an unexhausted claim no longer can proceed in state court), [federal courts] may reach the merits of the claim 'only if the defendant can first demonstrate either 'cause' and actual 'prejudice,' or that he is actually innocent'") (quoting Bousley v. United States, 523 U.S. 614, 622 (1998)) (citations omitted); see generally Murray v. Carrier, 477 U.S. 478, 495-96 (1986).
To establish "cause," a petitioner must show that some objective external factor impeded his ability to either comply with the relevant procedural rule or fully exhaust his federal claims. See Coleman, 501 U.S. at 753; Restrepo v. Kelly, 178 F.3d 634, 638 (2d Cir. 1999); Doleo v. Reynolds, Civ. No. 00-7927, 2002 WL 922260, at *3 (S.D.N.Y. May 7, 2002). Examples of external factors include interference by officials, ineffective assistance of counsel, or that "the factual or legal basis for a claim was not reasonably available" at trial or on direct appeal. Murray, 477 U.S. at 488 (citing Reed v. Ross, 468 U.S. 1, 16 (1984) and quoting Brown v. Allen, 344 U.S. 443, 486 (1953)). See also Bossett, 41 F.3d at 829 (citing Murray, 477 U.S. at 488); United States v. Helmsley, 985 F.2d 1202, 1206 (2d Cir. 1992); Lovacco v. Stinson, Civ. No. 97-5307, 2004 WL 1373167, at *3 (E.D.N.Y. June 11, 2004) (citing Murray, 477 U.S. at 488).
Here Petitioner has not asserted even a claim of cause for his failure to exhaust. As a result, this Court need not decide whether Petitioner suffered prejudice because, absent proof that the failure to consider the merits of the claims would result in a fundamental miscarriage of justice, federal habeas relief is unavailable as to procedurally barred claims unless both cause and prejudice are established. Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985); McLeod v. Moscicki, Civ. No. 02-9335, 2003 WL 22427757, at *8 (S.D.N.Y. Oct. 22, 2003) (citing Murray, 477 U.S. at 494); You v. Bennett, Civ. No. 00-7514, 2003 WL 21847008, at *7 (E.D.N.Y. July 29, 2003) (citing Coleman, 501 U.S. at 750); Ayuso v. Artuz, 2001 WL 246437, at *9 (S.D.N.Y. Mar. 7, 2001); Pou v. Keane, 977 F. Supp. 577, 581 (N.D.N.Y. 1997) (Kahn, J.).
Finally, this Court finds no basis to conclude that the denial of Petitioner's procedurally barred claims would result in a fundamental miscarriage of justice, which exists "where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at 496. "To establish actual innocence, petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Bousley, 523 U.S. at 623 (internal quotation marks and citations omitted). Furthermore, "[i]t is important to note in this regard that 'actual innocence' means factual innocence, not mere legal sufficiency." Id.
I find that there is no basis in the record for concluding that it is probable "that no reasonable juror would have convicted [Petitioner]."
Since Petitioner has procedurally defaulted his Fifth and Sixth Amendment claims and has failed to establish either cause for that default or that he is actually innocent, this Court recommends that these claims be denied as unexhausted and procedurally barred.
2. The Merits
As an alternative basis for recommending dismissal of the Petition, I will address, briefly, because the law is clear, the merits of Petitioner's Fifth and Sixth Amendment claims.
(a) Sixth Amendment Right to Counsel
As noted above, under the Federal Constitution, the Sixth Amendment right to counsel "does not attach until after the initiation of formal charges." Moran v. Burbine, 475 U.S. 412, 431 (1986). See also Pulliam v. West, No. 03 CV 4514 (JG), 2004 WL 2413385, at *6 (E.D.N.Y. Oct. 12, 2004) ("The Sixth Amendment right to counsel does not attach until after initiation of formal charges") (citing Moran); Lazoda v. Magg, 900 F.Supp. 596, 604 (N.D.N.Y.,1995) (Munson, J.) ("The right to counsel does not attach until the filing of formal charges") (citing Moran). Petitioner makes no claim that any of the statements that were utilized against him were obtained after the initiation of formal charges. Therefore his Sixth Amendment claim has no merit, and I recommend that it be dismissed on this alternative ground.
(b) Fifth Amendment Right Against Self-Incrimination
As in the state courts, Petitioner in this habeas proceeding invokes the mantra of the Fifth Amendment right against self-incrimination, but he provides no argument, analysis or legal citation in this context. (Dkt. No. 11 at 21-22.) The statements that Petitioner sought to suppress but that were utilized against him were obtained from him prior to December 16, 1999, and were not preceded by Miranda warnings. However, the trial court found that "[a]t no time prior to December 16, 1999, was the Defendant in custody." State Court Records, Ex. I at 26. Petitioner has not disputed this finding. This finding, and Petitioner's implicit acceptance of it, is fatal to his claim, since it is settled that the safeguards prescribed by Miranda apply only to those who are "in custody." Berkemer v. McCarty, 468 U.S. 420, 440 (1984). Accordingly, Petitioner's Fifth Amendment claim has no merit, and I recommend that it be dismissed on this alternative ground.
WHEREFORE, based upon the foregoing, it is hereby RECOMMENDED, that the petition for a writ of habeas corpus (Dkt. No. 1) be DENIED and DISMISSED. Furthermore, the undersigned finds that Petitioner has not made a "substantial showing of the denial of a constitutional right" pursuant to 28 U.S.C. § 2253(c)(2) ("A certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right."); see also Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000). Therefore, I recommend that no certificate of appealability should issue with respect to any of Petitioner's claims.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have ten days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court.
28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e); Roldan v. Racette, 984 F.2d 85 (2d Cir.1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir.1989)).
Syracuse, New York.
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subset: commoncrawl


text:
Chocolate Chip Pie With Bourbon Whipped Cream
Total Time
Prep 20 mins
Cook 40 mins
A traditional Kentucky Derby dessert for your Derby Day parties or just anytime.
Ingredients Nutrition
- 1 (9 inch) pie crusts, unbaked
- 1 cup chopped pecans or 1 cup walnuts
- 1 cup semisweet chocolate morsel
- 2 large eggs
- 1⁄2 cup brown sugar
- 1⁄2 cup granulated sugar
- 1⁄2 cup butter, melted
- 1⁄2 cup all-purpose flour
- 1 pinch salt
- 1 teaspoon vanilla
- 1 tablespoon Bourbon (optional) or 1 tablespoon rum (optional)
Bourbon Whipped Cream
- 1 cup chilled whipping cream
- 2 tablespoons brown sugar
- 1⁄2 teaspoon vanilla
- 1 teaspoon good Bourbon or 1⁄2 teaspoon rum flavoring
- Spread chopped nuts over the bottom of the prepared (unbaked) pie shell; sprinkle with chocolate morsels.
- In a small mixing bowl, whisk eggs.
- Whisk in sugars, butter, flour, salt, vanilla, and bourbon (if desired).
- Pour batter evenly over nuts and chocolate chips.
- Bake in a 325° oven for 35 to 40 minutes.
- To prepare whipped topping, for best results, chill bowl and beaters.
- Beat cream until thickened; add sugar and flavoring, then beat until soft peaks form.
- Cover and refrigerate until ready to use.
Most Helpful
I'm giving this 5 stars because it was good, but it was soooooooo sweet!! Great for kids or those who don't think they can get enough sugar, or maybe as a remedy for PMS--but for me a little overwhelming.
Very very rich and gooey!!!! I loved the bourbon in the whipped cream, I realized after my pie was baking that I hadn't put the bourbon in the pie part because the instruction to do so was missing in the directions of this recipe so I forgot until I was making the whipped cream. It was still great! I baked mine for 40 minutes and after it cooled, it still was not firm, it sort of gooed all over but it tasted good! Made this as the last hurrah (before diet season starts) for New Year's Eve, 2008. Thanks for the recipe!
This fit the bill for decadent and easy. Very similar to pecan pie, except that the flour replaces the corn syrup. i served it with a squirt of plain whipped cream, and it was fantastic. I'll make some of the bourbon whipped cream tonight, since time is more on my side. Thanks for posting - I'll be making this again.


text:
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June 13, 2011
HARVEY HERRING III,PLAINTIFF,v.MIKE CLARK, ET AL.,DEFENDANTS.
ORDER DENYING NON-PARTY CDCR'S MOTION TO QUASH; GRANTING NON PARTY CDCR'S REQUEST FOR PROTECTIVE ORDER; TAKING NON-PARTY CDCR'S REQUEST FOR IN CAMERA REVIEW UNDER SUBMISSION; AND OVERRULING DEFENDANTS' OBJECTIONS (Docs. 87, 88)
Harvey Herring, III ("Plaintiff") is a state prisoner proceeding pro
se and in forma pauperis in this civil rights action filed pursuant to
42 U.S.C. § 1983. Plaintiff filed the complaint commencing this action
on January 19, 2005. (Doc. 1.)*fn1 This action
proceeds against Defendants Correctional Officer ("C/O") Mike Clark,
Sergeant ("Sgt.") Jack L. Hill, C/O Roger Lowder, C/O Alejandro
Ramirez, C/O Kenneth J. Jiminez, C/O John Wheeler, Sgt. Kevin Curtiss,
C/O Ernesto Diaz, and C/O M. D. McAlister ("Defendants")*fn2
for use of excessive physical force in violation of the Eighth Amendment and assault and
battery*fn3 based on an incident which occurred on
July 30, 2003 at California Substance Abuse Treatment Facility
("SATF"). (Id.)
On September 7, 2007 and October 18, 2007, Plaintiff filed requests for a subpoena duces tecum to issue on his behalf. (Docs. 62, 63.) On January 8, 2008, these requests were denied with leave to submit a new request providing further information. (Doc. 65.) On May 20, 2008, Plaintiff renewed his request and provided further information. (Doc. 72.) This request was granted and, on October 14, 2008, a subpoena duces tecum ("the SDT") issued to third party, SATF Warden Ken Clark ("Warden Clark"). (Docs. 83, 85.) The SDT commanded production of documents for Plaintiff's inspection at the California State Prison, Sacramento, on December 8, 2008 at 10:00 a.m. (Doc. 85-2.) On December 5, 2008, non-party California Department of Corrections and Rehabilitation ("CDCR") filed a motion to quash the SDT (Doc. 87.) On December 5, 2008, Defendants Hill, Lowder, Ramirez, Jiminez, Wheeler, Curtiss, Diaz, McAlister, and Rodriguez filed objections to the SDT. (Doc. 88.) On December 10, 2008, Defendant Clark joined CDCR's motion to quash. (Doc. 89.) On January 9, 2009, Plaintiff filed an opposition to the motion, CDCR filed a reply on January 16, 2009. (Docs. 94, 95.) The motion to quash and objections are now before this Court.
II. Discovery via Federal Rule of Civil Procedure 45
Federal Rule of Civil Procedure*fn4 34 governs discovery of designated documents, electronically stored information, and designated tangible things subject to the provisions of Rule 26(b). Meeks v. Parsons, 2009 WL 3003718, *2 (E.D. Cal. 2009) (citing Fahey v. United States, 18 F.R.D. 231, 233 (S.D.N.Y. 1955). Rule 26(b)(1) establishes the scope of discovery, stating in pertinent part:
Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense-including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.
Accordingly, under Rule 34, the test for admissibility is the relevance of the requested material or information. Id., (citing Weahkee v. Norton, 621 F.2d 1080, 1082 (10th Cir.1980); White v. Jaegerman, 51 F.R.D. 161, 162 (S.D. N.Y. 1970); Ceramic Corp. of Amer. v. Inka Maritime Corp., Inc., 163 F.R.D. 584 (C.D. Cal. 1995)).
"The law [of discovery] begins with the presumption that the public is entitled to every person's evidence." Richards of Rockford, Inc. v. Pacific Gas & Elec. Co., 71 F.R.D. 388, 389 (N.D. Cal. 1976). A nonparty may be compelled to produce documents and tangible things via Rule 45 subpoena. Fed. R. Civ. P. 34(c). Assuming that a subpoena is properly constituted and served, Rule 45 requires the subpoena's recipient to produce the requested information and materials, provided the issuing party "take[s] reasonable steps to avoid imposing undue burden or expense." Fed. R. Civ. P. 45(c)(1) and (d)(1). The recipient may object to all or part of a subpoena, or move to quash or modify it. Fed. R. Civ. P. 45(c)(2) and (3).
CDCR and Defendant Clark seek to quash the SDT on the grounds that it: (1) is procedurally deficient for lack of a proof of service and was served on Warden Clark rather than the custodian of records (Doc. 87, Mot. to Quash, pp. 5:14-6:6); (2) is facially overbroad and compliance would cause an undue burden on CDCR (id., at pp. 6:7-6:14); (3) the information sought is protected by the official information privilege (id., at pp. 7:7-8:18); (4) release of the information sought would violate individual privacy rights (id., at pp. 10:3-10:19); (5) the information sought is privileged under the California Constitution, the California Evidence Code, the California Government Code, the California Penal Code, and section 3321 of Title 15 of the California Code of Regulations (id., at pp. 8:19-12:2); (6) any documents released should be submitted for an in camera review (id., at pp. 9:18-10:2); and (7) a protective order should issue as to any document(s) ultimately released. (id., at pp. 12:3-12:16). Defendants' objections raise some*fn5 of the same issues such that analysis of an issue herein is applicable to both the motion to quash and the objections.
A. Procedural Deficiencies
CDCR argues that the SDT is procedurally deficient because it fails to include an executed proof of service and purports to serve the Warden of SATF instead of the true custodian of the records sought. Defendants argue that while they did receive notice of the SDT from the Court's CM/ECF posting, this did not relieve Plaintiff of his duty to serve the parties and the copy on CM/ECF lacked an executed proof of service.
1. Proof of Service
CDCR argues that the SDT is deficient because it was not accompanied by a proof of service showing compliance with the notice requirements of Rule 45(b) and Local Rule 250.5.*fn6
Rule 45 governs subpoenas duces tecum for the production of documents. "If a subpoena commands the production of documents . . . before trial, then before it is served, a notice must be served on each party." Fed. R. Civ. P. 45(b)(1). A subpoena duces tecum directed to a party or non-party must be served on all parties to the action and on the non-party. L.R. 250.5. "Proving service, when necessary, requires filing with the issuing court a statement showing the date and manner of service and the names of the persons served." Fed. R. Civ. P. 45(b)(4). "The purpose of such notice is to afford other parties an opportunity to object to the production or inspection or to serve a demand for additional documents or things." Fed. R. Civ. P. 45, Advisory Committee Notes, 1991.
CDCR argues that they cannot determine if the parties were properly served because the proof of service attached to the SDT was blank. They also argue that any production of documents by CDCR may potentially injure a party's opportunity to object. Plaintiff responds in his opposition that the SDT should not be quashed for failure to serve an executed proof of service because he followed the Court's instructions when submitting information required for issuance of the SDT, and the Court directed the Clerk to serve a copy of the SDT on all parties. In reply, CDCR again argues that only a blank proof of service form accompanied the SDT and that Plaintiff's opposition should be disregarded because it was filed fourteen days after the deadline to file any such opposition.
With regard to CDCR's claim that the opposition was filed late, Local Rule 230(l), which governs motions in prisoner cases, provides in part:
Opposition, if any, to the granting of the motion shall be served and filed by the responding party not more than twenty-one (21),days after the date of service of [a] motion. . . . The moving party may, not more than seven (7) days after the opposition is served, serve and file a reply to the opposition.
L.R. 230(l).
CDCR's motion to quash was filed and served on December 5, 2008. (Doc. 87.) Therefore, under Local Rule 230(l), Plaintiff's opposition was due twenty-one (21) days later, on December 26, 2008. Plaintiff placed his opposition with prison staff for mailing*fn7 on January 6, 2009. (Doc. 94.) Clearly Plaintiff's opposition was untimely. However, CDCR's reply was also untimely as Plaintiff's opposition was served on January 6, 2009, resulting in a deadline of January 18, 2009, for CDCR to file and serve a reply. Although CDCR's reply was timely filed, a copy was not served on Plaintiff until one day after the deadline. (Docs. 95, 96.) It would be inapposite to grant CDCR's request to disregard Plaintiff's opposition as untimely without also disregarding the request as untimely itself. Accordingly, CDCR's request that Plaintiff's opposition be disregarded is denied.
CDCR also argues that, because they did not receive a completed proof of service with the SDT, they cannot determine if the proper parties were served. Likewise, Defendants' object that even though they received a copy of the SDT via the Court's electronic filing system, this did not relieve Plaintiff of his duty to serve the parties. Yet, Plaintiff followed directions given to him by the Court. Even if it is assumed that Plaintiff failed to properly serve notice on Defendants, they did receive notice of the SDT via the court's electronic filing system before it was served on CDCR. (See Doc. 85.)
CDCR's argument that any production of documents under the SDT may potentially injure a party's opportunity to object is likewise unavailing. No harm has been shown particularly since no documents have been produced in response to the SDT, Defendant Clark joined CDCR's motion to quash on December 10, 2008, and the other Defendants filed objections to the SDT on December 5, 2008. Such harmless error does not provide good cause to grant CDCR's motion to quash the SDT. Defendants' objections based thereon are likewise overruled.
2. Warden v. Custodian of Records
CDCR argues that the SDT should be quashed because Plaintiff served Warden Clark rather than the "custodian of records" at SATF. CDCR argues that Warden Clark is not the custodian of records at SATF. Although acknowledging that the Warden is the head authority at his facility, CDCR asserts he is not the custodian of records and does not maintain or control the documents requested by Plaintiff. CDCR suggests that the SDT should have been directed either to the prison facility itself or to the proper custodian of records. In support of their argument, CDCR submits a declaration of a SATF litigation coordinator, Johanna Cordova, who states, "I am aware that Warden Ken Clark would not be the custodian of any potentially responsive records." (Doc. 87, Cordova Decl., ¶ 3.) CDCR cites an Eleventh Circuit case, Ariel v. Jones, 693 F.2d 1058,1060 (11th Cir. 1982), to state that a subpoena must be served on a nonparty who has "control" of the documents requested.
Plaintiff responds that Warden Clark is the head authority at SATF, is in charge of the documents requested, and has primary control of all departments and operations within the institution. Plaintiff maintains that any request to the "facility itself" would be the same as a request directed to the Warden, because he is the head/representative of that facility. CDCR states that the SDT, as written, appears to request records the Warden would personally maintain as Warden, and the Warden did not prepare and does not maintain or preserve the records sought in the eight requested items of the SDT. CDCR also asserts that some of the records requested may not be maintained at the SATF facility.
Rule 45 allows a party to command a person by subpoena to "produce designated documents, electronically stored information, or tangible things in that person's possession, custody, or control." Fed. R. Civ. P. 45(a)(1)(A)(iii) (emphasis added). A non-party, as well as a party, may be compelled under Rule 45 to produce documents and tangible things or to permit an inspection. Fed. R. Civ. P. 34(c). In this Circuit, the legal-control test is the proper standard under Rule 45 for whether subpoenaed documents are in a party's control. In re Citric Acid Litigation, 191 F.3d 1090, 1107 (9th Cir. 1999). "Control is defined as the legal right to obtain documents upon demand." States v. Int'l Union of Petroleum & Indus. Workers, AFL-CIO, 870 F.2d 1450, 1452 (9th Cir. 1989). The party seeking production of documents bears the burden of proving that the opposing party has such control. Id. The determination of control is often fact-specific. Central to each case is the relationship between the party and the person or entity having actual possession of the document. Estate of Young v. Holmes, 134 F.R.D. 291, 294 (D. Nev. 1991). The requisite relationship is one where a party can order the person or entity in actual possession of the documents to release them. Id. This position of control is usually the result of statute, affiliation, or employment. Id.; In re Citric Acid Litig., 191 F.3d at 1107 (court cannot order production of documents held by a separate legal entity, where requested party is not in actual possession or custody of the documents).
Further, since a corporation is a distinct legal entity, a party cannot require another party who is an officer or director of a corporation to produce corporate documents other than those he has in his possession or those he has a legal right to obtain on demand. American Maplan Corp. v. Heilmayr, 203 F.R.D. 499, 501-02 (D.Kan.2001). Instead, the requesting party must obtain the documents from the corporation by serving a subpoena pursuant to Rule 45. Id., at 502. A recipient of a document production request "'cannot furnish only that information within his immediate knowledge or possession; he is under an affirmative duty to seek that information reasonably available to him from his employees, agents, or others subject to his control.'" Gray v. Faulkner, 148 F.R.D. 220, 223 (N.D.Ind. 1992) (quoting 10A Federal Procedure, Law Ed. § 26:377 at 49 (1988)).
It is undisputed that the Warden is the head authority at SATF. Since CDCR parallels a corporation (rather than an individual) a plaintiff may obtain documents from CDCR by serving a Rule 45 subpoena on an individual within CDCR who either has the desired records in their possession, or the legal right to demand the records. While a warden "in his personal or individual capacity may not have custody of the documents at issue, because 'control' is determined by authority, he has constructive possession, custody, or control." Mitchell v. Adams, 2009 WL 674348 at *9 (E.D. Cal. March 6, 2009). A warden of a state prison within CDCR certainly has the right to demand any records on an inmate within the facility that he oversees. Accordingly, the SDT will not be quashed merely because it was directed to Warden Clark rather than the custodian of records at SATF.
B. Privileges
1. State Law
CDCR argues that personnel files are protected from disclosure under California Evidence Code sections 1040, 1043, 1045, and 1047, California Government Code section 6254, California Penal Code sections 832.5 and 832.7, California Constitution Article I, section 1, and Title 15 of the California Code of Regulations section 3321 since they contain personal and confidential information. (Doc. 87, 10:20-12:2.) However, this civil rights action was instituted in federal court under a federal statute, 42 U.S.C. § 1983, which was enacted particularly to vindicate federal rights against deprivation by state action. See Monroe v. Pape, 365 U.S. 167, 180 (1961) overruled on other grounds by Monell v. Dept. of Social Services of City of New York, 436 U.S. 658 (1978). "(I)n federal question cases the clear weight of authority and logic supports reference to federal law on the issue of the existence and scope of an asserted privilege." Heathman v. United States District Court, 503 F.2d 1032, 1034 (9th Cir. 1974) (citing 2B Barron & Holtzoff, Federal Practice and Procedure (Wright ed. 1961), § 967 at 243; 4 Moore's Federal Practice, § 26.60(7) at 26-255; 8 Wright & Miller, Federal Practice & Procedure, Civil §2016 at 123; Proposed Federal Rules of Evidence, Rules 501-02); see also Fed. R. Evid. 501.
Accordingly, arguments that rely on application of California state law are disregarded.
2. Federal Law -- Privileges
CDCR argues that information sought in the SDT is protected from production by the federal official information privilege because disclosure would be harmful to the public interest. (Doc. 87, Mot. to Quash, 7:7-8:18.)
With respect to a claim of federal privilege, CDCR has failed to make the required threshold showing. Federal common law recognizes a qualified privilege for official information, also known as the governmental privilege, or state secret privilege. Kerr v. United States District Court for the Northern District of California, 511 F.2d 192, 198 (9th Cir. 1975). The application of the official information privilege is "contingent upon the competing interests of the requesting litigant and subject to disclosure especially where protective measures are taken." Id. Government personnel files are considered official information. See Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir. 1990) (finding city police department personnel files not subject to discovery for general search). To determine whether the information sought is privileged, courts must "weigh the potential benefits of disclosure against the potential disadvantages." Id. at 1033-1034. If the potential disadvantages are greater, the privilege bars discovery. Id. at 1034 (citing Jepsen v. Florida Bd. of Regents, 610 F.2d 1379, 1384-85 (5th Cir. 1980). To invoke the official information privilege, "[t]here must be formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer." U.S. v. Reynolds, 345 U.S. 1, 7-8 (1953).
Rule 26 (b)(5)(A) provides that when otherwise discoverable information is withheld under the rules on claims that it is privileged, any such claim shall be expressly made and shall describe the nature of the documents, communications, or things not produced or disclosed, in a manner that will enable assessment of the applicability of the privilege or protection without revealing the privileged or protected information itself. In order to assist a court in determining a claim of privilege, a detailed privilege log may be required in conjunction with evidentiary submissions to fill any factual gaps. United States v. Construction Products Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996), cert. denied, 519 U.S. 927 (1996); see also, Allen v. Woodford, 2007 WL 309485, *4 (E.D. Cal. 2007), recon. denied, 2007 WL 841696. With respect to each document as to which a privilege is claimed, the person claiming the privilege should include in the privilege log the document's general nature and description, including its date, the identity and position of the author, and the identity and position of all addressees and recipients; the present location of the document; and the specific reasons it was withheld, including the privilege invoked and the grounds therefor. Allen (citing Construction Products, 73 F.3d at 473-74, and In re Grand Jury Investigation, 974 F.2d 1068, 1071 (9th Cir.1992)).
A detailed privilege log will allow a case-specific and fact-specific balancing of the interests of law enforcement, privacy interests of police officers or citizens, interests of civil rights plaintiffs, policies that inform the laws, and the needs of the judicial process. Kelly v. City of San Jose, 114 F.R.D. 653, 667-69 (N.D. Cal. 1987). The privilege log also must: (1) show that the agency generated or collected the information and maintained its confidentiality; (2) show that the declarant reviewed the material personally; (3) identify a specific governmental or privacy interest that would be threatened by disclosure to Plaintiff; (4) describe how disclosure, subject to a carefully crafted protective order, would create a substantial risk of harm to significant governmental or privacy interests; and (5) assess the extent of the harm that would result from disclosure. Id. at 670. It is helpful if the agency can describe alternative means, if any exist, for the plaintiff to acquire the information or its equivalent from other sources. Id.
The purpose of the governmental privilege is to protect the governmental decisionmaking process. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150-51 (1975); Branch v. Phillips Petroleum Co., 638 F.2d 873, 881-82 (5th Cir. 1981); Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324-25 (D.D.C.1966), aff'd sub nom. V.E.B. Carl Zeiss, Jena v. Clark, 384 F.2d 979 (D.C.Cir.), cert. denied, 389 U.S. 952 (1967).
(A)pplication of the official privilege is founded on the belief that there are certain governmental processes related to legal and policy decisions which cannot be carried out effectively if they must be carried out under the public eye. Government officials would hesitate to offer their candid and conscientious opinions to superiors or co-workers if they knew that their opinions of the moment might be made a matter of public record at some future date.
Branch , 638 F.2d at 881-82. Thus, this privilege shields from disclosure "intra-governmental documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Zeiss Stiftung, 40 F.R.D. at 324; accord NLRB, 421 U.S. at 150 (quoting Zeiss Stifftung); Branch, 638 F.2d at 881 (quoting Zeiss Stifung).
Further, there are two important limitations on the executive/governmental privilege doctrine. First, the privilege does not protect communications or reports made after completion of the deliberative process. See NLRB, 421 U.S. at 151. Discovery of such material does not jeopardize the decision-making function. See id.. Second, the privilege does not prohibit disclosure of factual materials. See EPA v. Mink, 410 U.S. 73, 87-88 (1973), superseded by statute on other grounds; Branch, 638 F.2d at 882; EEOC v. Wagner Electric Corp., 9 Empl.Prac.Dec. (CCH) P 9985 (E.D. Mo. 1973); Zeiss Stiftung, 40 F.R.D. at 327. An agency must produce "compiled factual material or purely factual material contained in deliberative memoranda and severable from its context." Mink, 410 U.S. at 87-88; accord Branch, 638 F.2d at 882.
Here, CDCR makes general assertions that government personnel files are considered private, investigations at the prison often include confidential conversations, and disclosure of personal or confidential information could threaten the safety of officers and inmates. CDCR's counsel declares that the custodian of records informed him that some of the documents requested by Plaintiff have been designated by CDCR as confidential pursuant to state law. (Doc. 87, Feher Decl, ¶¶ 4, 6.) The declaration of a litigation coordinator is also submitted which states that she is "informed based on [her] communications with other department chairs at [their] facility" that a number of types of documents are considered confidential and should remain as such. (Id., Cordova Decl., ¶ 2.) The litigation coordinator also declares that revelation of any of the requested documents would place staff, inmates, and the institution in danger. (Id., at ¶ 4-8.) CDCR argues that the factors used in Kelly, 114 F.R.D. at 660, favor protection of the documents. (Id., at 7:7-8:18.)
These two declarations are woefully inadequate and are replete with inadmissible hearsay. CDCR offers no evidence that anyone has even looked at, let alone read the particular documents requested by Plaintiff.*fn8 At best, these declarations only generally state that disclosure of identifying information of prison personnel and other inmates could threaten the safety and security of officers, inmates, and the facility. Further, in his opposition, Plaintiff repeatedly states that he does not desire revelation of any personal or confidential information of any CDCR employee or inmate; rather he only seeks facts directly related to the events alleged in the complaint. (See Doc. 94, Plntf. Opp., 2:15-17, 4:8-11, 5:8-9, 6:7, 6:9-12, 7:5-9, 7:24-8:3, 8:12-14, 8:17-18.) Because Defendants have not met their substantial threshold showing and have not provided adequate information concerning their claim of privilege or protection, CDCR's claim of privilege based on the official information privilege under federal law is denied.
C. Facially Overbroad & Undue Burden
The scope of discovery under Rule 26(b)(1) is broad. Discovery may be obtained as to any unprivileged matter "relevant to the claim or defense of any party . . ." Id. Discovery may be sought of relevant information not admissible at trial "if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id. However, discovery may be limited if it ". . . is unreasonably cumulative or duplicative," or can be obtained from another source "that is more convenient, less burdensome, or less expensive;" if the party who seeks discovery "has had ample opportunity by discovery . . . to obtain the information sought;" or if the proposed discovery is overly burdensome. Fed. R. Civ. P. 26(b)(2)(i)(ii) and (iii). When a discovery request takes the form of a third-party subpoena, the court may quash or modify a subpoena that "subjects a person to undue burden." Fed. R. Civ. P. 45(c)(3)(A)(iv).
CDCR argues that Plaintiff's requests are facially overbroad and to respond would cause an undue burden on Warden Clark. CDCR asserts that Plaintiff's requests could be interpreted to seek a wide range of possibly responsive documents. (Doc. 87, Mot. to Quash, 6:22-24.) Yet, the only evidence submitted by CDCR on this point is the litigation coordinator's declaration which merely states "the effort and expense necessary to comb through the many documents that may or may not be responsive to the SDT and then in turn redact all of the confidential personal information of third parties in the documents will unduly burden CDCR and its employees, especially with respect to some of the broader categories of requested information." (Id., Cordova Decl., ¶ 7.) In opposition, Plaintiff cites cases from other jurisdictions supporting his argument that his requests should be allowed, even if burdensome or expensive, as long as they have any bearing on the case. CDCR replies that relevance is not the only consideration.
Rule 34(b) specifically requires that each request be addressed and that if the requested inspection is not allowed, an objection and the reasons for the objection "shall be stated." The objecting entity must state specifically how, despite the broad and liberal construction of federal discovery rules, each question is overly broad, unduly burdensome, or oppressive by submitting affidavits or offering evidence revealing the nature of the burden. Klein v. AIG Trading Group, Inc., 228 F.R.D. 418, 422 (D. Conn. 2005). Objections must be made with sufficient specificity in accordance with Rule 34; objections that are not sufficiently specific, such as statements that requests are overly broad, burdensome, or oppressive, are waived. Ramirez v. County of Los Angeles, 231 F.R.D. 407, 409 (C.D. Cal. 2005). Further, the responding party should exercise reason and common sense to attribute ordinary definitions to terms and phrases utilized in the discovery documents. Mc Coo v. Denny's Inc., 192 F.R.D. 675, 694 (D. Kan. 2000).
Here, CDCR's objection of unduly burdensome and overbroad are not sufficiently specific or adequately explained. CDCR does not specifically address any of Plaintiff's requests, nor is it stated to which of Plaintiff's requests any of CDCR's objections apply; rather their objections and/or basis for moving to quash the SDT are merely stated in a very general manner. This is clearly insufficient to meet CDCR's burden on a motion to quash.
Further, large corporations and institutions, such as CDCR, are expected to have means for locating documents requested in legal matters. See, Meeks; A. Farber and Partners, Inc. v. Garber, 234 F.R.D. 186, 189 (C.D. Cal. 2006); National Ass'n of Radiation Survivors v. Turnage, 115 F.R.D. 543, 552 (N.D. Cal. 1987). This is particularly the case where the institution, such as CDCR is involved in legal actions on a regular basis (as is obvious upon even a cursory review of cases filed in this district) and where, as here, neither the Plaintiff's claims, nor the documents he seeks are out of the ordinary.
IV. OBJECTIONS BY DEFENDANTS HILL, LOWDER, RAMIREZ, JIMINEZ, WHEELER, CURTISS, DIAZ, McALISTER, AND RODRIGUEZ*fn9
Defendants objections (Doc. 88) are not well taken. Rule 45(c)(2)(B) provides that "[a] person commanded to produce documents or tangible things to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing, or sampling any or all of the materials or to inspecting the premises -- or to producing electronically stored information in the form or forms requested." (Emphasis added.)
Ordinarily, a party cannot object to a subpoena duces tecum served on a nonparty, but rather, must seek a protective order or make a motion to quash. Moon v. SCP Pool Corp., 232 F.R.D. 633, 636 (C.D. Cal. 2005) (citing Schwarzer, Tashima, & Wagstaffe, California Practice Guide: Federal Civil Procedure Before Trial, ¶ 11:2291 (2005 rev.); see also Pennwalt Corp. v. Durand-Wayland, Inc., 708 F.2d 492, 494 n. 5 (9th Cir. 1983)). The burden of quashing a subpoena duces tecum is generally on the person to whom the subpoena is directed. Sullivan v. Dickson, 283 F.2d 725 (9th Cir. 1960). However, that general rule is extended to parties where "the party claims some personal right or privilege with regard to the documents sought." Atlantic Inv. Management, LLC v. Millennium Fund I, Ltd., 212 F.R.D. 395 (N.D. Ill. 2002) (quoting Wright & Miller, Federal Practice and Procedure, 9A Civil 2d § 2459 at 41 (1995 ed.).
In their objections, while Defendants generally raised various privileges and personal privacy rights, they did not submit a required privilege log (as discussed above) for the Court to ascertain application of any privileges raised on a document by document basis. Accordingly, Defendants objections are overruled.
V. IN CAMERA REVIEW and/or PROTECTIVE ORDER
CDCR requests the Court conduct an in camera review of any documents to be produced and, if any documents are to be produced, that a protective order under Rule 26(c) issue limiting the scope of the SDT and the use of any confidential information.
In his opposition, Plaintiff indicated that: (1) he seeks disclosure only of facts directly related to his case and that any information (personal or confidential) of any individual that has no direct relation to the July 30, 2003 incident at SATF, in Facility-C, Building 1 (as allegedly committed against Plaintiff by Defendant Clark) is neither requested nor needed (Doc. 94, Plntf. Opp., 2:15-17); (2) he does not seek to have any personal or confidential information of any CDCR employee or inmate disclosed and seeks only disclosure of facts directly related to the allegations of the Complaint (id., at 4:8-11); (3) he seeks only information from individuals whose identities have already been revealed and are part of the record in this case (id., at 5:8-9); (4) he seeks only to have facts directly related to this case disclosed (id., at 6:7); (5) he does not object to the editing of the requested documents so as to redact personal information therefrom as long as factual allegations are not redacted (id., 6:9-12); (6) he seeks disclosure of non-personal information (id., at 7:5-9); (7) he seeks documentation from witnesses whose identities have previously been revealed in this case to include findings of investigations into the subject of this case and that any confidential or personal information can be blacked out (id., at 7:24-8:3); (8) he seeks factual materials rather than deliberative and decision-making information (id., at 8:12-14); and (9) he does not seek to have any personal information disclosed (id., at 8:17-18).
Given these statements in Plaintiff's opposition, his requests can reasonably be construed and limited to seek only information that would fall under the exceptions to the official/governmental information privilege (i.e. communications or reports made after completion of the deliberative process, see NLRB, 421 U.S. at 151, and factual materials, see Mink, 410 U.S. at 87-88; Branch, 638 F.2d at 882; EEOC, 9 Empl.Prac.Dec. (CCH) P 9985 (E.D. Mo. 1973); Zeiss Stiftung, 40 F.R.D. at 327). Further, Plaintiff's statements make it clear that he seeks only documents relating to the incident which occurred on July 30, 2003.
The Court is mindful of the fact that some of the documents responsive to the SDT may in fact contain information that, if turned over to an inmate, could seriously jeopardize the safety and security of both inmates and personnel within the institution. Not wanting any untoward consequences to result from procedural ineptitude and, realizing the shared interests that arise since Defendants are CDCR employees, CDCR and Defendants are ordered to work together to locate documents responsive to the SDT. They shall redact any confidential and/or personal information (such as names of persons not previously disclosed in this action, identification numbers, addresses, photographs of prison personnel, and the like), being sure to leave all information as to the factual allegations and scenarios surrounding the incident which occurred on July 30, 2003, in SATF Facility C, Building 1 regarding Plaintiff's arm in the tray port and any actions taken on that same date when Plaintiff was subsequently take to the holding cage for the yard clinic. Copies of all such documents are to be served on Plaintiff within forty-five (45) days of the date of this order and are subject to the protective order issued concurrently herewith per Rule 26(c).
Plaintiff's claims upon which this action proceeds involve specific acts by named individual defendants. There are no claims in this action regarding any institutional procedures, processes, policies, or system wide responses. Accordingly, any documents of general application (such as post orders, emergency procedures, and the like which do not include factual information regarding the incident alleged in the Complaint) need not be reviewed or produced.
If CDCR and/or Defendants feel that documents responsive to the SDT exist which contain confidential and/or privileged information that cannot be adequately redacted, they shall submit a privilege log, complying with all requirements discussed herein delineating any such documents for consideration by the Court within forty-five (45) days of the date of this order. The Court will subsequently advise all concerned whether further information is required, whether documents should be submitted for an in camera review, or whether such documents should be produced directly to Plaintiff.
Based on the foregoing, IT IS HEREBY ORDERED that:
1. Non-party CDCR's Motion to Quash, filed on December 5, 2008, is DENIED;
2. The Objections filed by defendants Hill, Lowder, Ramirez, Jiminez, Wheeler, Curtiss, Diaz, McAlister, and Rodriguez on December 5, 2008, are OVERRULED;
3. Within forty-five (45) days of the date of this order, CDCR and Defendants are to locate and serve on Plaintiff copies of documents containing factual information regarding the events alleged in the Complaint that occurred on July 30, 2003 at SATF, Facility C, Building 1, redacting all personal and/or confidential information;
4. Withing forty-five (45) days of the date of this order, CDCR and Defendants are to file a privilege log delineating all documents, responsive to the SDT, which cannot be adequately redacted to preserve the safety and security of CDCR personal, inmates, and/or facilities;
5. CDCR's request for an in camera review is taken under submission to be addressed if necessary subsequent to review of any privilege log that is filed as discussed in this order;
6. CDCR's request for a protective order is GRANTED in as much as any documents ultimately produced to Plaintiff in response to the SDT discussed herein will be subject to the protective order issued concurrently herewith; and
7. The Clerk shall SERVE a copy of this order upon Ken Clark, Warden of SATF, P.O. Box 7100, Corcoran, CA 93212.
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Screenings Thursday & Friday Nights at 8pm | 275 Capp Street, San Francisco, CA 94110
News from the Archive - Recent Projects
Oddball Films is letting you in on some of our most recent stock footage projects in film, television, commercials and more. Recent highlights include providing offbeat footage for the credits for the Emmy nominated series Transparent, The New York Times, Ray Donovan as well as the documentary series OJ: Made in America and We've Been Around about transgender trailblazers. We also did research for Jim Jarmusch's Iggy Pop documentary Gimme Danger, retro-tech for Danny Boyle's Academy Award nominated Steve Jobs. And wouldn't you know it? They came to us when they wanted some 70s smut for The Nice Guys, Ryan Gosling's latest movie!
Boozers, Users, and Losers - Vintage Drug and Alcohol Scare Films - Fri. Dec. 9th - 8PM
Oddball Films presents Boozers, Users, and Losers - Vintage Drug and Alcohol Scare Films, a program of mind-expanding, terror-intending and hilarity-inducing short 16mm educational films about the dangers of drugs. These classroom classics from the 1950s through the 1980s were meant to scare the pants off the junior-high set but probably encouraged as many to experiment with drugs and alcohol as it discouraged. Watch mice get drunk and drunks flip cars in the teen drunk-driving scare film None for the Road (1957). Real teens talk about their dalliances with substance abuse in the classroom primer aimed at preteens, Drugs: First Decision (1978). Melanie and Kathleen are desperate to experiment with drugs in excerpts from Degrassi Jr. High - The Experiment (1987). As seen on TV, filthy hippies druggies get what's coming to them in Dragnet: Little Pusher (1969). It may be in Spanish, but you won't miss the message behind the bizarro cartoon Sex, Booze, Blues and Those Pills You Use (1982). And because it never gets old, the Oddball favorite The Cat Who Drank... And Used Too Much (1987) will be drunk driving by. Plus! Vintage Drug and Alcohol PSAs, Beer Commercials, LSD freakouts, the angel dust documentary PCP: You Never Know (1979) for the early birds and more tripped out cinema - all on 16mm film from our massive stock footage archive!
Oddball in the Press
Surrealism in Animation - Thur. Dec. 8th - 8PM
Venue: Oddball Films, 275 Capp Street San Francisco
Admission: $10.00 Limited Seating RSVP to email@example.com or (415) 558-8117
Web: http://oddballfilms.blogspot.com
The Spectre of Fascism - Echoes from Totalitarianism - Fri. Dec. 2nd - 8PM
Oddball Films presents The Spectre of Fascism - Echoes from Totalitarianism, a program of international 16mm short films, documentaries and animation reflecting on the 20th century's history of fascism and it's repercussions both artistic and humanitarian. With subversive stop-motion animation from Poland and the former Czechoslovakia, dark allegories of political conformity and rebellion, Alain Resnais' definitive Holocaust documentary short, and even Don@ld Duck as a Nazi, it is a powerful night giving testament to the power of the indomitable human spirit in the face of fascism. Alain Resnais' masterful Night and Fog (1955) is both horrifying and necessary, combining archival material with meditative footage shot at Auschwitz and Majdanek ten years after the end of World War II. In the process, Resnais reveals the yawning gap between what's left and what was, challenging the commonplace assumption that we can ever really understand the magnitude of history and its many traumas. From former Nazi-occupied Poland comes Tad Makarczynski's The Magician (1962), a pied-piperesque allegory of several young boys recruited to be soldiers by a nefarious magician, as well as the dark stop-motion animation rebellion Bags AKA Worek (1967) directed by Tadeusz Wilcosz. From the former Czechoslovakia we bring you another stop-motion marvel, Jiří Trnka's exquisite parable of totalitarianism and named one of the top five animated films of all-time: The Hand (1965), banned in its country of origin for decades. In De Overkant (1966), Belgian filmmaker Herman Wuyts brings us a bleak interpretation of a totalitarian society in which independence equates to death. The dark animated adaptation of Maurice Ogden's The Hangman (1967) is a chilling vision of the dangers of conformity and a grim metaphor for the horrors of scapegoating and witch-hunts. For a little comic relief (and we'll need it), we bring you Di$ney's Oscar-winning propaganda cartoon Der Fuehrer's Face (1943) featuring Don@ld Duck in a musical Nazi nightmare. Revisit the dark history of fascist oppression so we shall not be doomed to repeat it in the coming years. Everything screened on 16mm film from our massive stock footage archive.
Cinema Soiree: "Celluloid Scopophilia: The Sensual Dimensions of the Human Body" with Kerry Laitala and Live Music by Wobbly - Thur. Dec. 1st - 8PM
Oddball Films welcomes moving image artist Kerry Laitala to our Cinema Soiree Series, a monthly event featuring visiting authors, filmmakers and curators presenting and sharing cinema insights and films. Laitala will be returning to the cinestage to present Celluloid Scopophilia: The Sensual Dimensions of the Human Body, a film program that examines the fetishization of the human body through rare medical and first aid films as well as vintage fetish shorts, Laitala's own handmade films, and live musical accompaniment from Wobbly. Celluloid Scopophilia is a program that treads the line between visual pleasure and pain in the context of Scopophilia, (the pleasure of looking). Through the camera's gaze, the pleasure imparted by the extraction and isolation of body parts is explored and dwelled upon, sucking the viewer into this seductive, unseemly form of compelling cinema sequencing the program to make the resonance between the films vibrate with a very pervy frequency. This program investigates these abnormalities showcasing rare medical films such as Pain and Its Alleviation (1961) and Oral Hygiene films such as the Technicolor Danish, English co-production Es Leight Ans Dir (1951), later dubbed in German, industrial First Aid films such as Shock and Breathing For Others (1955), outtakes from Obsession, an adult film shot in San Francisco in the 1980s starring Jamie Gillis, and underground foot fetish films. The program will conclude with the viscerally compelling counterpoint Secure the Shadow…'Ere the Substance Fade, a hand-made film by Laitala, a filmmaker and long-time collector of obscure and disturbing medical and industrial films. Additionally the program with incorporate live cinema film loops, triple projections and Laitala wielding her infamous "film flogger", a celluloid "whip" created to scatter multiple images throughout the screening room. Laitala's frequent musical collaborator Wobbly will be on hand to create some new sonic interminglings. The program is curated by Oddball Films Director Stephen Parr and filmmaker/cinema historian Kerry Laitala and all films will be screened in 16mm film. Celluloid Scopophilia: The Sensual Dimensions of the Human Body promises to be a disturbing, darkly humorous and ultimately fascinating look at our perceptions of the human body in all its fetishistic forms.
Venue: Oddball Films, 275 Capp Street San Francisco
Admission: $10.00 Limited Seating RSVP to firstname.lastname@example.com or (415) 558-8117
Web: http://oddballfilms.blogspot.com
Baby Animal Bonanza - Fri. Nov. 18th - 8PM
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Talk:List of instances in which the fourth wall Is broken
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How is SpongeBob referencing the Camfire Song Song breaking the fourth wall? He sang the song, so it would simply be recalling a past event. Zelwolf (talk) 23:13, July 18, 2013 (UTC)zelwolf
Should this page even exist?
It seems like nothing, The Fourth Wall is a stupid internet meme.Spike the Dragon (talk) 20:33, February 15, 2014 (UTC)
Dying for Pie
What about the time he says "Hey it's Mr. Krabs!" in Dying for Pie?


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SAMLA 2016: Perfect/Imperfect Worlds in Print Culture and Book History (abstracts: 1 June 2016)
Papers are invited for the SHARP affiliate session at the 2016 South Atlantic Modern Language Association (SAMLA) Convention. Potential topics include print culture, history of the book, authorship, publishing history, ephemera, illustration, publishers' archives, production, circulation, and reception. Papers addressing this year's convention theme, "Utopia/Dystopia" are especially welcome. What connections can be made between print culture/book history and the idea of perfect/imperfect worlds? How has the conception of these worlds evolved from the manuscript age to the digital world of the 21st century?
Other possible topics include:


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The 10 oz. Classicware Black Plastic Bowl is dishware that can be great for service at any type of catered occasion. A pretty scalloped edge decorates this black plastic bowl, which can be used to serve anything from a soup course to dessert. This is a superb substitute for traditional plateware or china because it's unbreakable and can be thrown away after use. Purchase this item in a supply of 180 per case.
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Throughout the decades, female musicians have been taking the music world by storm with their powerful vocals and standout performances. But if we were to narrow the list of female vocalists down to a top 10, who would make the cut? Let's find out!
Coming in at number 10 is Norah Jones, the bluesy jazz singer from Brooklyn, New York. Her soft, tender ballads have earned her a number of Grammy Award wins since the start of her career in 2002, including:


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Eurogamer.net • Articles Interviews Reviews • Digital Foundry
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It was a real honor for my painting to be recognized as a Finalist in the International Artist Magazine Seascapes, Rivers & Lakes Competition. "Between Shadows and Light" is charged with an inside light emanating from the myriad reflections on the water.
Thank you!
Hundreds and hundreds of artists from around the world enter the International Artist magazine competitions; therefore, I am very pleased to have been selected one of the 13 award winners in this competition.
I am thrilled that my painting "Midday Mirror" received the Best of Show Award at the 50th Annual Regional Juried Art Exhibition showing at the Charles M. Eisemann Center in Richardson, Texas.
I want to thank the event organizers from the Richardson Civic Art Society and the judge Michael Holter. It is an honor to receive this award and it is an even greater honor that Midday Mirror will be part of the Richardson Civic Art Society and the City of Richardson Art Collection to be displayed permanently at the Library Complex. It will also become the poster for next year event. Thank you! What a great honor!
"Midday Mirror" is part of my landscape series depicting reflections. Reflections are a common element in Hebe's compositions, whether they are gracing a gleaming silver teapot in a still-life painting or a crystal clear lake in a landscape. My mission in depicting reflections is to engage viewers and cause them to question where the real object starts, where it ends, and what part of it is actually a reflection of something else. As the word goes… to reflect is to think deeply about something… it is the "to use or to exercise the mind or one's power of reason in order to make inferences, decisions, or arrive at a solution or judgments". We reflect all through our lives!
The International Artist Magazine is without a doubt my favorite artist magazine. No wonder! It has been voted "The Best Artist Magazine in the World". The bi-monthly magazine with international distribution shows the work of artists from around the world, their technique, workshops, and of course their beautiful art.
I am honored and humbled that an eight page article about my art has been published in the October/November 2015 issue of this truly international magazine with the unique opportunity to see my work exposed to a worldwide audience.
Thank you International Artist Magazine! It is a true amazing magazine.
Here is the article currently published in the October/November 2015 International Artist Magazine
To see how to purchase the magazine or its distribution go to: https://www.internationalartist.com/
Tour Produced by David J. Wagner, L.L.C.
This great exhibit will tour for almost one year around galleries and museums in the United States.
It opened at the beautiful RW Norton Art Gallery in Shreveport, LA on May 19, 2015 and it will remain there until July 26,2015
It will then move to The Appleton Museum of Art in Ocala, Florida and to The Albany Museum of Art in Albany, Georgia.
My painting 'Patriotic Bell' is in this exhibit. If you have a chance, stop to see this fantastic exhibit of Contemporary Realism.
Part of The RW. Norton Art Gallery
And here is where my painting 'Patriotic Bell' is hanging. Great painting for the upcoming 4th of July
To purchase 'Patriotic Bell', please contact the gallery or send an email to firstname.lastname@example.com
The Drawing
Every new painting is not only a new creation but also a learning experience. In my continuous quest to experiment and push myself as an artist, I might not always start a painting the same way and it might not always end as originally envisioned or planned.
The Vine Walkway is my latest painting finished last month. It has already been accepted into The Great Outdoors Annual Spring Show at the Dutch Art Gallery in Dallas, Texas opening May 17, 2014.
Every week, I will post the different steps taken to arrive to the finished version. And in every step, I will write what I did and, may be, what I would change if I was to paint it again.
STEP 1: Here is how it started! On the first day, I grabbed a Bright brush #4, Burnt Sienna and white oil paints. I started drawing directly on a canvas 36×24 inches . I usually do not add as many details as I did here in this first sketch. I opt instead for blocking the different areas in "darks" and "lights"; however, on that particular day, I was in what I would call a "drawing zone" and I simply lost count of time and sense of the diminutive. While I do not find a detailed drawing as necessary for the first sketch, I have learned to let my artistic desire of the day to take its course. If drawing with my brush was the "taste of the day", so let it be!
I must admit that the detailed drawing gave me a good idea of how it was going to look; however, it didn't necessarily made the subsequent painting easier. If I was to paint it again, I would probably come out of the "drawing zone" a little bit sooner. The main fact was that the perspective seemed correct so I was ready to continue with Step 2: Adding colors and start modeling shapes.
After looking at the sketch, I decided there were two areas that would require more details and consequently more time and several coats of paint. The green foliage along the path and the vines on top. I started with the green foliage in the foreground because it seemed it would go faster and easier. Sometimes I like to get a sense of achievement and I felt that part of the painting would accomplish that goal. I squirted different green, blue, and red oil paints such as permanent green, pthalo green, olive, madder red, pthalo blue and indigo as well as yellow and white. In essence, my palette that day was the primary colors plus the additional greens. After painting a dark base made of pthalo green, indigo and madder red, I added leaves with a lighter value wet on wet: more details in the foreground and almost none in the distance. I was aware that the light would filter through the vine on top so I highlighted some leaves to achieve that effect.
My favorite brushes are the Brights in the medium to small size and I usually accomplish all the foliage holding four to five Bright brushes in my hand each for a different color. I find this much easier than having to clean the brush when a different color is needed. Since I have a very soft touch, and working wet on wet, the leaves seem to just blend into place.
I had extra time that day so I started with the canopy posts. I highlighted the top of the posts with light blue to indicate the light and the bottom with green from the reflection of the foliage. This also helped to give them a rounded shape.
Without a doubt this was the most difficult step of all. I wanted to show the effect of the sunlight shinning from above and filtering in certain spots, and the entanglement of the vines had to make some sort of sense. I added light blues to the wood and the foliage, light yellows and light green. May be, I went overboard on the blue highlights, but I want to leave them as they are for the moment until the columns are painted. When all the areas are complete, I will get a better sense of the ultimate colors I need. At the moment, the blues are distributed in strategic points above and alone the end of the walkway. I will have time to review them later.
The vine branches had to maintain their rounded shape and in order to achieve this, I placed dark against light, highlighting here and there. It is the end of the summer season and some of the leaves are already changing colors and falling. I am still using the same colors and brushes from the beginning.
The only part left to add color at this point are the columns and walkway. They are white in real life, but they will be painted reflecting all the colors that surround them. I definitely know at this point, that I will come back to each area and build on it.
This was actually not one step but various ones! First I finished the white walls which have a mixture of many colors used in the other parts of the painting. Blues, purple, reds, yellows, pinks, and of course greens tinted the white to shape the columns and walls and account for the light filtering through the vines. Then I painted the walkway softening the colors to match the values found in the rest of the painting.
Once that first coat of colors was in place, I went over the entire painting a few times, pulling and pushing the values together to bring unison to the work. I softened some areas and highlighted others adding touches of light blue to the foliage in the foreground and to the vines on the top. I kept playing with layers of colors on the walls until they seemed to have a glow of their own. I left the details in the front but I lost a lot of them in the horizon to add to the perspective … and after many days of looking at it and retouching, it was sent off to its first show: The Great Outdoors at The Dutch Art Gallery in Dallas opening May 17, 2014.
It is said that artists leave a part of them in each painting and therefore, it is hard to let them go. However, as with people, each painting has its destiny and The Vine Walkway has a mind of its own!
The Vine Walkway can be purchased through the gallery. For additional information, please contact the artist.


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