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March 5, 2009
ROBERT MITCHELL, PLAINTIFF,v.D.G. ADAMS, ET AL., DEFENDANTS.
Plaintiff, a state prisoner proceeding pro se and in forma pauperis, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court are plaintiff's two motions to compel further responses/production of documents, filed on, respectively, 6/06/08, and 7/24/08, to both of which defendants have filed their opposition and after service of each of which plaintiff filed a reply.
This motion shows the non-fit of ordinary civil case procedures to a prisoner civil rights action. The resources that could be spent elsewhere for many in prison for substantive needs are instead expended in a search for documents requested by one prisoner in one case. Courts generally labor under the misconception that there is no end of resources, both monetary and time, that can be applied to individual prisoner actions. On the other hand, without court oversight, or even the specter thereof, many legitimate claims of constitutional deprivation would never see the light of day in that the prisons have seemingly instituted no effective way to police day-to day, administrative misconduct. An institution without external oversight is often an institution which becomes a law unto itself, and at times a bad law. Regardless, the undersigned is tasked with applying general discovery rules, and the following order attempts to do so.
This action proceeds on the original complaint, filed on 10/20/06, as modified by the Order, filed on 3/03/08, adopting the Findings and Recommendations, filed on 2/04/08. At this point, plaintiff proceeds upon claims for money damages against the following defendants employed at two state prisons: 1) Corcoran State Prison Employees: D. G. Adams, D.D. Ortiz, K. Daviega,*fn1 J.A. Diaz, T. Galaviz, B. Streeter, P. Chatham, J. Hill, R. Hubach, A. Morrison, J. Diaz, S. Tellerico; and 2) High Desert State Prison Employees: D. Vanderville, B. Epperson, J. Owen, D. Hellwig. Plaintiff expressly states that he has exhausted his administrative remedies as to "all facts" presented in his complaint as of September 22, 2006. He also alleges that his State Board of Control claim was denied on September 27, 2006. Complaint, p. 16.
Plaintiff was incarcerated at High Desert State Prison (HDSP) at the time of filing his complaint.*fn2 He alleges that defendants at both Corcoran State Prison (CSP) and HDSP "collectively conspired" to violate his rights under the First and Fourteenth Amendments. Id.
Plaintiff contends that his conflict with defendants D.G. Adams, D.D. Ortiz, K. Daviega, J.A. Diaz, T. Galaviz, B. Streeter, P. Chatham, J. Hill, R. Hubach, A. Morrison, J. Diaz and S. Tellerico started following his arrival at CSP on December 17, 2004. From then until March 21, 2006, plaintiff filed numerous complaints against these defendants and other CSP correctional officers (C/Os). Id., at 17.
On December 6, 2005, plaintiff submitted a grievance to the above-named defendants, alleging discrimination against African American inmates in compelling them, including plaintiff, to double cell with African American prisoners only, forcing non-affiliated African American inmates, including plaintiff, to double cell with those who participated in active inmate gangs and by punishing plaintiff and other non-gang affiliated African American inmates for serious rule violations committed by the gang participants. Id.
On December 21, 2005, plaintiff was interviewed by defendant J.A. Diaz, regarding the Dec. 6, 2005, grievance. Defendant J.A. Diaz stated: "Mitchell, your ass is still here! I'm going to see to it that your ass gets transferred out of Corcoran because we're tired of you filing complaints." He went on to tell plaintiff that defendant Warden D. G. Adams told him to interview plaintiff as to the Dec. 6, 2005, grievance. Defendant J.A. Diaz noted that plaintiff's complaint involved the potential lockdown of the entire African American inmate population related to the Dec. 13, 2005, scheduled execution of "Crip gang leader, Stanley 'Tookie' Williams," and discrimination against African American inmates in housing and punishment.
Id., at 17-18.
After plaintiff explained his complaint as to housing and punishment of African American inmates, defendant J.A. Diaz noted that plaintiff had been filing complaints against CSP administration every month since his arrival and informed plaintiff that he had just attended a staff meeting with defendants Warden Adams and Associate Warden Ortiz, and several C/O's from the yard "where we discussed your complaint filing and your assisting other inmates with their complaint filing against staff." Defendant J.A. Diaz told plaintiff that "we're" not going to tolerate his continued complaint filing, that the method of housing and disciplining of African American inmates would not change, and that plaintiff would be transferred from CSP. Id., at 18-19.
Upon plaintiff's stating that he would file a complaint because defendant J.A. Diaz was violating his First Amendment rights, defendant J.A. Diaz informed plaintiff that he had no rights other than "what we give you." He also told plaintiff that he had instructed defendant Appeals Coordinators T. Galaviz and B. Streeter and all of his staff to no longer address plaintiff's complaints because plaintiff was going to be transferred from CSP. Id., at 19.
On Dec. 30, 2005, plaintiff filed a grievance (CSPC-3-06-00115) against defendant J. Hill for threatening plaintiff's safety/life. On Jan. 4, 2006, plaintiff was called to defendant J. Diaz's office, where J. Diaz was present along with defendants J.A. Diaz and S. Tellerico, and plaintiff was informed by these defendants that they were putting plaintiff up for transfer to "a 180 prison" because plaintiff had filed too many complaints and defendant Warden Adams had told them to transfer plaintiff out of CSP. Plaintiff informed these defendants that he had not gotten any disciplinary write-ups in the form of CDC-115's at CSP and asked why his security housing level was being upgraded and he was to be transferred to a "180 design prison." Id., at 20.
Defendants J. Diaz and Tellerico told plaintiff that "we don't want your kind here, so you're being transferred," while defendant J.A. Diaz referred back to his Dec. 21, 2005, interview with plaintiff, telling plaintiff that people like him "who file lawsuits and complaints are troublemakers and they have to go." Plaintiff replied that he would be filing a complaint against each of these individuals, to which defendant J. A. Diaz responded: "[T]his is why we're transferring you, to avoid having to respond to anymore of your complaints. We'll get rid of you and we won't have to respond to, or return any of your complaints you have pending." Id., at 21.
On Feb. 22, 2006, defendant J. Hill called plaintiff into his office about complaint no. CSPC -3-06-00652, which plaintiff had filed against defendant A. Morrison. Defendant Hill told plaintiff that he wanted to talk to him about the grievance against Morrison which plaintiff had filed contending that Morrison had confiscated and destroyed plaintiff's legal documents, as well as about CSPC-3-06-0115, which plaintiff had filed against defendant Hill for threatening plaintiff's safety. Id., at 21-22.
Defendant Hill called defendant Morrison to his office and Hill told plaintiff to explain the circumstances giving rise to the grievance, whereupon plaintiff said that, on Nov. 12, 2005, defendant Morrison stopped plaintiff as he carried envelopes containing legal material and asked plaintiff what was in the envelopes. Plaintiff told Morrison that he was on the way to the law library to conduct legal research and to mail out his legal documents and showed Morrison the documents, whereupon defendant Morrison snatched up the documents and tore them up, telling plaintiff he could not have them. Plaintiff explained that they had been sent to him by the state attorney general's office and concerned a pending case of his and were not contraband. Morrison told plaintiff that the documents pertained to a lawsuit against correctional staff and that they were "'FLSA' time sheets" that plaintiff could not have. Plaintiff told Morrison that his having destroyed the documents sent by the attorney general's office before plaintiff had had a chance to address appeal issues violated his First and Fourteenth Amendment rights, to which Morrison replied that he did not care about plaintiff's rights and stated that since plaintiff had arrived, inmates had started filing lawsuits and staff complaints had increased. Id., at 22-23.
When Morrison tore up the documents, plaintiff informed him that he would file a complaint against him to which Morrison responded that he did not care "because don't you know that correctional staff at Corcoran don't find other correctional staff guilty of rule violations. Nothing is going to happen." Id., at 24.
When defendant Hill asked defendant Morrison if plaintiff's version of events had occurred as plaintiff told it, defendant Morrison stated "yes," and also said that he had told plaintiff they were tired of him and his complaint filing. When plaintiff told defendant Hill that in light of Morrison's admission that plaintiff expected Hill to hold Morrison accountable to departmental policy and procedure, defendant Hill "became enraged," approaching plaintiff with a clenched fist and shouting, inter alia, "I don't give a rat's ass about you or your complaints. We run this fucking yard the way we see fit and we don't have to answer to anyone. Now, I'm telling you to drop your complaints, if you know what's good for you." Id., at 24-25.
Defendant Morrison then threatened plaintiff with a "blanket party," saying "if you keep on snitching and filing complaints, we're going to come an[d] pay your ass a visit dressed all in black and snatch your ass out of your cell at 2 or 3 o'clock in the morning and beat your ass! We've done this shit before and we'll do your ass too!" Both defendants laughed and warned plaintiff to drop grievances nos. CSPC-3-06-00115 and CSPC -3-06-00652, and were heard by unidentified inmates and correctional staff. The next day, Feb. 23, 2006, plaintiff filed a complaint against defendants Hill and Morrison for the incident of Feb. 22, 2006, no. CSPC-3-06-01022. Id., at 25-26.
On Feb. 25, 2006, defendant R. Hubach interviewed plaintiff about grievance no. CSPC-3-06-00115, telling plaintiff that defendants Warden Adams, Assoc. Warden Ortiz, and Captain Daviega, his supervisors, were tired of plaintiff's constant "snitching" and complaint filing and had told Hubach to make the complaint "go away." He told plaintiff that it could be in his "best interest" to withdraw CSPC-3-06-00115. When plaintiff protested, defendant Hubach told him that if the complaint was not dropped, plaintiff would be put in administrative segregation (ad seg), "and we will see to it [] that you don't go home on your release date." Plaintiff withdrew the grievance in fear for his life and of losing his release date. Defendant Hubach's statements were made in front of unidentified inmates and correctional staff. Id., at 26-27.
Plaintiff reports that on March 17, 2006, Corr. Counselor Smooth "became verbally hostile" with Inmate Wimberly, yelling because Wimberly had put his name in a report with which he did not wish to be associated, concerning the Feb. 24, 2006, incident in defendant Hill's office (concerning plaintiff's being admonished to drop CSPC-3-06-01022, about the earlier Feb. 22, 2006, incident in Hill's office).
On March 21, 2006, before plaintiff received any appeal responses to grievances CSPC-3-06-00115, CSPC -3-06-00652 or CSPC-3-06-01022 or his complaint relating to classification and cell assignment of African American inmates, plaintiff was transferred to HDSP, with increased security level housing status, where he was housed on a 180 design yard for inmates with serious disciplinary problems. Upon his arrival at HDSP, he was forced into a holding cell for African American inmates only and all of his legal and personal property were contraband. Id., at 30-31.
Plaintiff was interviewed by three unnamed correctional lieutenants who told him that at HDSP all cell and job assignments, etc., were made by race. Plaintiff was told that there were no "'black cells'" on the 270 design yard and because of what had happened between himself and CSP correctional staff, he would be housed in a 180 design special housing unit for "'black inmates with serious disciplinary problems.'" Id., at 31.
On March 23, 2006, plaintiff was interviewed by three unit classification committee members (UCC), defendants D. Vanderville, D. Hellwig, and J. Owen, who told plaintiff that he was "a non-adverse transfer from Corcoran," but that there was a memo from CSP UCC members defendants J.A. Diaz, J. Diaz, and Tellerico, saying that plaintiff files complaints and lawsuits and must be housed at an increased security housing level and on 180 design special housing. Id., at 31-32.
Plaintiff was told by defendants Vanderville, Hellwig, and Owen that he would be housed on the C-Facility 180 yard because he was black, there were no open "black cells" on the 270 yard, and because Corcoran had so advised them. When plaintiff protested that he could be housed with any race, according to departmental policy and procedure, and that he had no disciplinary sanctions from CSP and did not display aberrant behavior to warrant increasing his security status from 270 to 180, he was told by these defendants that he was being upgraded because he filed "too many lawsuits and complaints on staff," and this way he could be confined to his cell for 23 hours a day which would prevent him from engaging in such activity. Id., at 32-33.
Plaintiff complained that the CSR*fn3 endorsed him for housing on a 270 design yard, to which defendants Vanderville, Hellwig, and Owen replied that they did not have to follow the endorsement, that plaintiff was black and no black cells on the 270 yard were open, that even if there were, he would not be housed there based on Corcoran's administration having said to upgrade his security housing level. Plaintiff said that when he had arrived at HDSP Receiving and Release (R&R), he had arrived with white, Hispanic, and Asian inmates who were taken to be housed on the 270 yard. In addition to being housed on a 270 design yard, he asked that he receive a clerk position equivalent to the job assignment as GED clerk he had had at CSP with a pay number. These defendants told plaintiff the other inmates who were sent to be housed on the 270 design yard were not black and did not file complaints and lawsuits against staff and that at HDSP, "everything is done according to race" and black inmates who sue correctional staff do not receive clerk assignments. Plaintiff complained of a violation of his First and Fourteenth Amendment rights for which he intended to file a complaint. Id., at 33-34.
Also, on March 23, 2006, plaintiff contacted his attorney, Robert A. Bailey, to enlist his help in securing his legal and personal property so that plaintiff could meet court deadlines. HDSP's Litigation Coordinator told his lawyer that she would track down plaintiff's legal property to give to plaintiff.
On March 30, 2006, plaintiff filed a 602 appeal no. HDSP-C-06-00807, concerning his transfer and the classification/cell assignment of African American inmates. On April 6, 2006, defendant B. Epperson escorted plaintiff to R&R, where much of his legal and personal property had been damaged and was confiscated, including, among other items, a cassette radio, new razors, a doctor-prescribed knee/ankle brace wrap, a pair of Nike shower shoes, a new hair brush, a pair of head phones, a pack of T-shirts, a pair of Reebok tennis shoes, a beard trimmer. Legal property confiscated included a Black's Law Dictionary, Deering's desktop Federal Rules of Civil Procedure, all of plaintiff's case law and federal and state writs, writing pens, pleading paper, postage stamps and envelopes. Id., at 36-37.
Defendant Epperson and an unnamed staffmember told plaintiff his property was being confiscated because plaintiff had had his lawyer call and because he was housed on C-yard. Plaintiff said that he had been told by Corcoran R&R staff that none of his personal and legal property was contraband and that he had observed white, Hispanic and Asian inmates with some of the same items. Defendant Epperson told him that because he was black and housed on the C-Facility 180 design yard, he was not allowed the property. When plaintiff stated that he was filing a complaint alleging violation of his constitutional rights, he was told by Epperson (and the unnamed R&R staffmember) that at HDSP, things were done by racial classification and they did not answer to the courts. Id., at 37-38.
Plaintiff alleges that from March 20, 2006, until the present (the time of filing his complaint, on October 20, 2006), he had repeatedly submitted requests/complaints to no avail to CSP defendants Galaviz and Streeter, to respond to and forward his grievance nos. CSPC-3-06-00115, CSPC -3-06-00652 and CSPC-3-06-01022. Id., at 38-39.
Plaintiff alleges that Corcoran State Prison defendants, D. G. Adams, D.D. Ortiz, K. Daviega J.A. Diaz, T. Galaviz, B. Streeter, P. Chatham,*fn4 J. Hill, R. Hubach, A. Morrison, J. Diaz, S. Tellerico, conspired together to transfer him to High Desert in retaliation for his filing grievances and to avoid responding to or returning his pending appeals and increased his security housing level and confiscated and destroyed his property in violation of his First Amendment rights. Id., at 39. Defendants J.A. Diaz, K. Daviega, P. Chatham, J. Hill, R. Hubach, and A. Morrison conspired and threatened to physically harm him and place him in ad seg if he did not withdraw his grievances, which he did out of fear in violation of his rights under the First Amendment. Defendants D. G. Adams, D.D. Ortiz, K. Daviega, J.A. Diaz, T. Galaviz, B. Streeter, P. Chatham, J. Hill, R. Hubach, A. Morrison, J. Diaz, S. Tellerico, all threatened plaintiff with physical harm, with delaying his release date, with placing him in ad seg, and conspired to retaliate against him in the form of a prison transfer, and denied him full exhaustion of his administrative remedies. Id., at 40.
Defendants D. Vanderville, B. Epperson, J. Owen, D. Hellwig at High Desert State Prison all ratified the retaliatory conduct of the CSP defendants by refusing to take corrective measures and by increasing his security housing level, by confiscating and destroying plaintiff's personal and legal property, all at the request of the CSP defendants, in violation of plaintiff's First Amendment rights. Id., at 41.
Plaintiff alleges that all of the defendants "maintain segregationist policies," harboring a discriminatory animus against plaintiff and other African American inmates, requiring them to be double celled only with African Americans, and in separate holding cells, a claim of a violation of the Equal Protection Clause of the Fourteenth Amendment. Id., at 42-48. Plaintiff also alleges a state tort claim of negligence, contending that defendants inflicted physical, mental and emotional injuries upon him by their acts and omissions. He claims that he has lost wages, legal and personal property, and suffered "severe pain, humiliation, indignities...." Id., at 49-50.*fn5 Plaintiff also claims defendants' conduct was willful, wanton, malicious and oppressive. Id., at 52.
Plaintiff's Motions to Compel
First Motion
Plaintiff, in his first motion, seeks to compel production to his document production requests, set one, served on 3/31/08, upon defendants Adams and Vanderville. Plaintiff complains that defendants Adams and Vanderville in their responses to his requests are evasive and disingenuous and improperly invoke privileges. First Motion to Compel (MTC1). Plaintiff has identified the following requests for production for which he complains of defendants' failure to produce: with respect to defendant Adams, these include request nos. 9, 10, and 13 through 20; with regard to defendant Vanderville, plaintiff seeks production in response to his requests numbered 9, 10, 11, 13 through 20. MTC1, pp. 6-46.*fn6
In their opposition, defendants sweep with an over-broad brush in appearing to limit plaintiff's allegations to claims which solely implicate defendants for retaliating against him for filing grievances (in violation of the First Amendment). Opposition to MTC1 (Opp1). While it is true that plaintiff does allege retaliatory conduct on the part of defendants for plaintiff's filing of grievances, plaintiff also alleges that defendants discriminated against him on the basis of race in violation of the Equal Protection Clause of the Fourteenth Amendment.*fn7
The scope of discovery under Fed. R. Civ. P. 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. The court, however, may limit discovery if it "....is unreasonably cumulative or duplicative," or can be obtained from another source "that is more convenient, less burdensome, or less expensive"; or 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).
At the outset in considering plaintiff's motions to compel, the court is mindful that privileges are narrowly construed because they impede the full and fair discovery of the truth, Eureka Financial Corp. v. Hartford Acc. and Indemnity Co., 136 F.R.D. 179, 183 (E.D. Cal. 1991), and that the party asserting the privilege has the burden to establish its applicability is an undisputed proposition, see, e.g., United States v. O'Neill, 619 F.2d 222, 227 (3rd Cir. 1980). The Supreme Court has relatively recently reemphasized that privileges are not favored:
The common-law principles underlying the recognition of testimonial privileges can be stated simply. "'For more than three centuries it has now been recognized as a fundamental maxim that the public... has a right to every man's evidence. When we come to examine the various claims of exemption, we start with the primary assumption that there is a general duty to give what testimony one is capable of giving, and that any exemptions which may exist are distinctly exceptional, being so many derogations from a positive general rule.'"
Jaffee v. Redmond, 518 U.S. 1, 9, 116 S.Ct. 1923, 1928 (1996) (citing United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1950) (quoting 8 J. Wigmore, Evidence § 2192, p. 64 (3d ed.1940)).
Privileges asserted by a government agency based on deliberative process or other governmental privileges have long been subject to procedural prerequisites:
"There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The court itself must determine whether the circumstances are appropriate for a claim of privilege..."
United States v. O'Neill, 619 F.2d, 222, 226 (3d Cir. 1980) (quoting United States v. Reynolds, 345 U.S. 1, 7-8, 73 S.Ct. 528, 532 (1953)). The procedural prerequisites apply to all forms of "executive" privilege. See, e.g.,Yang v. Reno, 157 F.R.D. 625, 632 (M.D. Pa. 1994) (state secrets and deliberative process privileges); Martin v. Albany Business Journal, Inc., 780 F. Supp. 927, 932 (N.D.N.Y. 1992) (finding "informant's privilege" to be a governmental privilege). The claim should be made by a person in an executive policy position. See Reynolds 345 U.S. at 8 n. 20, 73 S.Ct. at 532 n. 20 ("[t]he essential matter is that the decision to object should be taken by the minister who is the political head of the department, and that he or she should have seen and considered the contents of the documents and himself have formed the view that on grounds of public interest they ought not to be produced..."). See also Scott Paper Co., 943 F. Supp. at 501-03 (1996) (requiring IRS Commissioner to invoke deliberative process privilege); Yang, 157 F.R.D. at 632-34 & n.4 (1994) (considering official status necessary to invoke privilege, collecting cases, and finding executive secretary of National Security Council could not invoke governmental privileges); Mobil Oil Corp. v. Department of Energy, 102 F.R.D. 1, 6 (N.D.N.Y. 1983) (official invoking the privilege may be an agency head or a subordinate with high authority). Some jurisdictions do not allow the agency head to delegate the authority to claim the privilege. Scott, 943 F. Supp. at 502. Other jurisdictions which allow the authority to be delegated require the delegation to be accompanied by detailed guidelines regarding the use of the privilege. Id. at 503. For purposes of prisoner litigation, the warden, assistant warden or appropriately delegated prison officials should be sufficient.
Regardless of who invokes the privilege, "the information for which the privilege is claimed must be specified, with an explanation why it properly falls within the scope of the privilege." In re Sealed Case, 856 F.2d 268, 271 (D.C. Cir. 1988) (law enforcement privilege) (emphasis added). An official cannot invoke a privilege without personally considering the material for which the privilege is sought. Yang, 157 F.R.D. at 634.
Requests Directed to Defendant Adams
In production request no. 9, plaintiff seeks "a complete unredacted/unedited copy of plaintiff's complete inmate housing assignment at Corcoran State Prison from December 17, 2004 to March 21, 2006."
Defendant Adams objects to this request as "vague, overly broad, and unduly burdensome." Defendant goes on to assert that, although not waiving the objections, "after reasonable inquiry, Defendant does not have any responsive documents in his possession, custody, or control." Plaintiff's declaration in support of MTC1, Exhibits (Exs.) A & B, pp. 19, 28. In opposition to the motion, defendant claims that he does not have possession, custody or control because even though he is the warden at Corcoran, he is being sued in his individual capacity and as such does "not have a legal right on demand" to the documents sought. Opp1, pp. 4-5; defendant Adams' Declaration in support of Opp., Ex. A, ¶ 4. The court disagrees.
"Control is defined as the legal right to obtain documents upon demand." U.S. v. International Union of Petroleum and Indus. Workers, AFL-CIO, 870 F.2d 1450, 1451 (9th Cir. 1989); accord In re Citric Acid Litigation, 191 F.3d 1090, 1107 (9th Cir. 1999). While the defendant 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. The California Department of Corrections and Rehabilitation (CDCR) has not posited an objection as a third party. Defendant Adams has not shown that he does not have access to the documents and it is clear that he may obtain from CDCR whatever record there may be with regard to plaintiff's housing assignment while at Corcoran from 12/17/04 to 3/21/06. This information could be highly relevant to plaintiff's claim that he received his housing assignment solely with African Americans and only on the basis of his race in violation of his rights under the Fourteenth Amendment. If he has the ability to acquire the documents, defendant Adams must produce them. See In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir. 1995). Defendant Adams will produce the prison's records of plaintiff's housing assignments at Corcoran from 12/17/04 to 3/21/06, to the extent that they currently exist, within twenty days of the date of this order.
In request no. 10, plaintiff seeks a complete and unredacted copy of the Facility B "operational procedure" in Corcoran State Prison (CSP) from 12/17/04 to 3/21/06, to which defendant Adams objected "as calling for confidential documents, the release of which would endanger institutional safety and security," as well as on grounds of being vague, overbroad and unduly burdensome; defendant states that no responsive documents will be produced and that generally CSP does not have operational procedures "specific to particular housing units for general population inmates." Plaintiff's Dec., MTC1, Exs. A & B, pp. 11, 28.
The relevance of this request is not readily apparent insofar as the "operational procedure" may well encompass procedures not at all at issue in this case. Plaintiff contends that he needs the CSP Facility B operational procedure for the dates he was incarcerated there, 12/17/04-3/21/06, to show that the CSP defendants did not follow policy or procedure with regard to cell housing and integration and with regard to inmate contraband, by which he means confiscated or destroyed legal documents. MTC1, p. 10; reply, pp. 2-3. However, the inmate housing policy or procedure at Corcoran may well have relevance and the request so construed is at least reasonably calculated to lead to the discovery of admissible evidence. The procedure could itself arguably be problematic and plaintiff would be entitled to attempt to demonstrate that, or, if the procedure is appropriate, plaintiff could seek to demonstrate that the Corcoran defendants did not comply with it. Defendant's claims that release of documents related to the prison's operational procedure will implicate institutional security because, for example, an inmate in possession of the procedures could anticipate the timing and location of cell searches (Opp., p. 2), do not appear to be in any manner at issue if plaintiff is provided with any documentation for the relevant period, 12/17/04 - 3/21/06, that sets forth the policies and procedures for housing inmates at CSP, and, as modified, defendant Adams is to produce any such documentation within twenty days.
Plaintiff asks defendant Adams to produce the sign-in and sign-out sheets for the period from 11/12/05 to 3/21/06 for the following defendants: defendant Morrison (request no. 13); defendant Hill (request no. 15); defendants Galaviz, Streeter, Daviega, J.A. Diaz, and Chatham (request no. 17). Plaintiff's Dec., MTC1, Exs. A & B, pp. 11-12, 29-30. Defendant Adams, refusing to produce the documents, objects that these requests call for confidential documents, the release of which would endanger institutional safety and security and violate the defendants' right to privacy, and further objects that the requests are vague, overly broad and burdensome. Id., at 29-30.
Claiming that the time sheets are "public record," plaintiff, in somewhat vague and circular reasoning, contends that he seeks this documentation as to these defendants to support his allegations insofar as they will show that the defendants at issue were present "on the days in question" related to his allegations. MTC1, pp. 12, 15, 19. To shore up his contention that such records are not confidential, plaintiff attaches to his reply, as Ex. A to an additional declaration, copies of two pages of time sheets he apparently received in discovery from defendants in an unrelated prisoner pro se case wherein he states he is (or was) the plaintiff, Mitchell v. Branham, Case No. O4-CV-0550 WQH (WMC). In opposition, defendant continues to maintain that these requests violate the defendants' privacy rights and are overly broad. Opp1, p. 3.
Plaintiff's rationale for seeking these documents appears thin. The court agrees with defendants that the requests are unduly burdensome and overly broad. Moreover, plaintiff does not really demonstrate how time sheets of these defendants are reasonably calculated to lead to admissible evidence in support his allegations. As defendant Adams asserts, if plaintiff was present for the conversations with the various defendants he alleges that he had for certain times which he does not adequately specify either in the motion or the requests by providing only a broad time frame, he does not need to substantiate the conversations by way of defendants' time sheets, which in any case, could not of themselves verify the conversations. The motion as to these requests will be denied.
Similarly, in his requests numbered 14, 16, and 18, directed to defendant Adams, plaintiff asks for copies of the unredacted "post orders" for the period of 11/12/05 to 3/21/06 for defendant Morrison (request no. 14); defendant Hill (request no. 16); and defendants Galaviz, Streeter, Daviega, J.A. Diaz, and Chatham (request no. 18). MTC1, pp. 11-20; plaintiff's Dec., MTC1, Exs. A & B, pp. 11-12, 30-31. Once again, defendant Adams objected to these requests on the grounds that they call for confidential documents the release of which would pose a danger to institutional safety and security and as violative of the defendants' right to privacy, further objecting that the requests are vague, overly broad and burdensome. Id., at 30-31.
In his motion plaintiff once again asserts that these documents are public record, are not confidential, would not jeopardize institutional security and "are routinely given to prisoner pro se litigants." MTC1, pp. 14, 17, 21. In his reply to the opposition in which essentially the same objections are posited (Opp., pp. 3-4), to shore up his reference to the claimed routine production of prisoner of pro se litigants, plaintiff attaches an exhibit to demonstrate he has previously received such documents. Reply, Ex. B, pp. 14-22. Post orders evidently set forth the daily duties and responsibilities of prison staff and, among other information, according to defendant Adams, "detail the institutional emergency response procedures and protocols for specific incidents, such as escapes and assaults." Defendant Adams' Dec. in support of Opp1, Ex. A, ¶ 3. Plaintiff contends that his requests are sufficiently specific as they are aimed at the period of time in which he was incarcerated at CSP, although this covers a period of months. Such documents could only be arguably relevant to the degree to which they relate to the defendants' assigned duties and responsibilities regarding inmate housing. Plaintiff does not allege in his motion that the prison practices or policies are at issue, indeed, he appears to contend the reverse in asserting that the documents requested will support his claims by showing how defendants failed to comply with their assigned procedures and responsibilities. Notwithstanding the defendant's generalized assertions of confidentiality and privacy, the court will require production in response to these requests but only insofar as the "post orders" requested set forth any duties or responsibilities related to inmate housing assignments. Defendant need not produce duties/responsibilities related to emergency response procedures and protocols for specific incidents, an issue of concern to defendant Adams as implicating institutional security, and should such procedures be included in post orders that include responsibilities related to inmate housing assignments, defendant may redact such information. The motion as to these requests, nos. 14, 16, and 18, as modified, will be granted.
In request no. 19, plaintiff asks for the Corcoran memorandum entitled "Fact Finding" relating to 602 inmate appeal log numbers CSPC-3-06-00652, CSPC-3-06-0015*fn8 and CSPC-3-06-01022." MTC1, p. 20; plaintiff's Dec. Exs. A & B, pp. 21, 31. In response to this request, defendant objects that the request calls for confidential documents that would violate the right to privacy and the release of which would put at risk institutional safety and security, in addition to asserting that the request is "vague, overly broad, and unduly burdensome." MTC1; plaintiff's Dec. Ex. B, p. 31.
As plaintiff has claimed that he was retaliated against for having filed grievances in violation of his First Amendment rights and has identified these specific grievances as ones about which he was subjected to questionable treatment by some of defendants, a request for a memorandum tracking the history/progress of these grievances is at least arguably reasonably calculated to lead to the discovery of admissible evidence. Defendant Adams does not provide any support in the opposition for their confidentiality, privacy, and safety risk objections and by no means meets his burden in positing such objections. Nor is a request as specific as this one even arguably vague or unduly burdensome. Simply asserting that the request does not come within this defendant's possession, custody or control is also unavailing, as addressed elsewhere. The motion will be granted as to this request and defendant Adams must produce any documentation responsive to this request within twenty days.
In request no. 20, plaintiff asks that defendant Adams produce "a complete, unredacted/unedited copy of the Corcoran State Prison Memorandum titled 'Custody Staff Complaint Litigation Tracking Log Numbers' relating to 602 inmate appeal log numbers CSPC-3-06-00652, CSPC-3-06-0015 and CSPC-3-06-01022." MTC1, p. 23; plaintiff's Dec. Exs. A & B, pp. 21, 31. In response, defendant posits the following: "[d]efendant objects to this request as being vague, overly broad, and unduly burdensome. Without waiving these objections, after a reasonable inquiry, defendant does not have any responsive documents in his possession, custody or control." Plaintiff's Dec., MTC1, Ex. B, p. 32. In a declaration attached to his opposition, defendant Adams states that he does not have documents concerning inmate appeals within his possession, custody or control. Opp., p. 5, Adams Dec., ¶ 4. His representation in this regard appears to be premised on his averment that he does not "have a legal right" to demand such documents. Id.
Plaintiff's motion appears to be well-taken as to defendant's response to this request. While on the face of it, this court could not require a defendant to produce that to which he asserts he has no custody, possession or control, in this instance defendant Adams, who is the warden, fails to demonstrate, as noted above, that he does not have access to documents responsive to the requests and may not rely on the fact that he is sued only in his individual capacity to abjure that which is well within his capacity to produce. Nor does plaintiff here fall short of any claim that the production sought is not reasonably calculated to lead to the discovery of admissible evidence, and defendant does not make any such argument. Plaintiff seeks production of information surrounding any investigation as to the manner of processing specific grievances or complaints he filed at Corcoran, a subject arguably closely related to his claims of having been retaliated against for the filing of grievances. Defendant will be required to produce any documents responsive to this request that exists within CDCR or Corcoran State Prison records and the motion is granted as to this request.
Requests Directed to Defendant Vanderville
Plaintiff moves for an order to compel production by defendant Vanderville, in response to request no. 9, wherein he asks for "a complete unredacted/unedited copy of plaintiff's complete inmate housing assignment at High Desert State Prison (HDSP) from March 26, 2006 to December 5, 2007." MTC1, p. 25. To this request, defendant Vanderville objected that the request was "vague, overly broad, and unduly burdensome," going on to assert that, although not waiving the objections, "after reasonable inquiry, Defendant does not have any responsive documents in his possession, custody, or control." Plaintiff's Dec., MTC1, Ex B, p. 34. In opposition, defendant Vanderville, much like defendant Adams in identical objections to a similar request put to him (see above) declares that he does "not have a legal right on demand to" such documents. Defendant Vanderville's Declaration in support of Opp., Ex. B, ¶ 4. He also contends that being sued in his individual capacity forecloses his "legal right on demand" as to the requested material. Opp., p. 5. Defendant Vanderville states that he is a Correctional Counselor II at HDSP. Id., at ¶ 1. In the reply, plaintiff identifies Vanderville's Correctional Counselor II position as a supervisory position that makes him third in the chain of command, after the warden and associate warden. Reply, p. 6.
Defendant Vanderville's contention that he does not have possession, custody or control as to responsive documents is as unavailing as that of defendant Adams and for the same reason. The motion will be granted as to this request and defendant Vanderville will be directed to produce the prison's records of plaintiff's housing assignments at High Desert State Prison from 3/26/06 to 12/05/07, to the extent that they currently exist, within twenty days of the date of this order.
Request no. 10 directed to defendant Vanderville mirrors the request of the same number directed to defendant Adams and invokes the same arguments by the parties. In the request directed to defendant Vanderville, plaintiff seeks an unredacted copy of HDSP's Facility C operational procedure for the period of time from 3/21/06 to 12/05/07. MTC1, plaintiff's Dec., Exs. A & B, pp. 20, 36. Because the same analysis applies herein, the court will modify the request directed to defendant Vanderville for that defendant to provide plaintiff with any documentation for the relevant period, 3/21/06 to 12/05/07, that sets forth the policies and procedures for housing inmates at HDSP, and, as modified, will direct him to produce any such documentation within twenty days.
In request no. 11, plaintiff asks defendant Vanderville for a complete and unredacted copy of HDSP's Facility C operational procedure relating to Receiving and Release from 3/21/06 to 12/05/07, to which defendant objects and refuses to produce any documentation on the grounds that the request is "vague, overly broad, and unduly burdensome." MTC1, plaintiff's Dec., Exs. A & B, pp. 20, 37. Among the allegations of plaintiff's complaint is the alleged discriminatory and retaliatory treatment to which he was subjected at HDSP's Receiving and Release by defendants Vanderville, Hellwig, and Owen with regard to where he was to be housed. These defendants allegedly told plaintiff the other inmates who were sent to be housed on the 270 design yard were not black and did not file complaints and lawsuits against staff and that at HDSP, "everything is done according to race" and black inmates who sue correctional staff do not receive clerk assignments. Complaint, pp. 33-34.
In the previous request, the court has directed that defendant Vanderville provide documentation that sets forth the policies and procedures for housing inmates at HDSP from 3/21/06 to 12/05/07; that direction is intended to include all HDSP housing procedures, including those implemented related to Receiving and Release. Thus, the motion will be denied as moot as to this request on that point and, to the extent that it seeks further operational procedure, it will be denied as irrelevant.
In request no. 13, plaintiff asks for a complete and unredacted copy of his housing assignment in Facility C at HDSP for 3/21/06 to 12/05/07. The court believes this request is encompassed within the documents the court has directed to be provided in response to request no. 9, directed to defendant Vanderville, and will deny the request as duplicative and moot.
As to request no. 14, plaintiff asks that Vanderville produce an unredacted copy of HDSP's Facility C "inmate 270 eligibility list for B Facility inmate housing" for the period of time from 3/21/06 to 12/05/07. MTC1, plaintiff's Dec., Ex. A, p. 20. Defendant interposes generalized objections based on confidentiality, the right to privacy and concerns about institutional security and objects to the request "as vague, overly broad, and unduly burdensome," but goes on to aver, without waiving objections, that following a reasonable inquiry, defendant had no responsive documents within his possession, custody or control.
While plaintiff objects to defendant's objections at some length (MTC1, pp. 3-32), he does not adequately clarify why he seeks the putative list that he unclearly identifies, nor how it could be reasonably calculated to lead to the discovery of admissible evidence with regard to his claims. The motion as to this request will be denied.
In request no. 15, plaintiff asks defendant Vanderville to produce the sign-in sheet for defendant Epperson for April 6, 2006; in request no. 16, he asks for Epperson's post orders for the same date, to which the defendant interposes objections identical to those asserted as to request no. 14, above. MTC1, plaintiff's Dec., Ex. A & B, pp. 20, 38. Although these requests at least have the merit of specificity as to date, they do not appear to be particularly germane. Within the allegations of his complaint, plaintiff states that defendant Epperson escorted plaintiff to R&R on 4/06/06, where plaintiff found much of his legal and personal property had been confiscated and damaged. Complaint, pp. 36-37. There does not appear on the face of it to be any need for plaintiff to further prove by way of documentation that defendant Epperson did actually escort him on that date, as this does not appear to be a point on which there would be any contention otherwise.
In request nos. 17 through 19, plaintiff asks for complete and unredacted copies of HDSP's "'Daily Record of Housing and Assignment Changes CDC Form 117," pursuant to CDCR Operations Manual section 52020.5.3 for Receiving and Release ('R&R') to 'B' Facility, and 'C' Facility to 'B' Facility'" from 3/21/06 to 12/05/07 (request no. 17); complete copies of HDSP's "'Inmate Transfers G A Form 154, pursuant to CDCR Operations Manual section 52020.5.4 for Receiving and Release ('R&R') to 'B' Facility, and 'C' Facility to 'B' Facility'" from 3/21/06 to 12/05/07 (request no. 18); and complete copies of HDSP's "'Inmate Daily Movement Sheet (DMS) pursuant to CDCR Operations Manual section 52020.5.5 for Receiving and Release ('R&R') to 'B' Facility and 'C' Facility to 'B' Facility'" from 3/21/06 to 12/05/07 (request no. 19). MTC1, plaintiff's Dec., Ex. A, p. 21. As to request no. 20, plaintiff also seeks, for the period from 3/21/06 to 12/05/07, a complete and unredacted copy of HDSP's CDC Forms 134 and 135, relating to departures and arrivals from Receiving and Release ('R&R') to 'B' Facility, and 'C' Facility to 'B' Facility.'" Id. To all of these requests, defendant again objects on the same grounds as set forth with respect to request no. 14, i.e., generally raising confidentiality, privacy and safety and security concerns, objecting to the vagueness, overbreadth and burdensomeness of the requests, and nevertheless averring, without waiver of objections, that defendant has no responsive documents within his possession, custody or control.
In his motion, plaintiff once again argues vociferously that defendant's objections are not well-grounded. MTC1, pp. 37-45. Plaintiff, however, other than contending generally, as he has almost exclusively throughout his motion, that production of the documents will support the allegations of his complaint, offers no substantive basis for a need for production of what may well be voluminous CDCR documents for a period of more than a year and a half. For the court to have determined the question of any relevance whatever, the undersigned has frequently reviewed the plaintiff's allegations because he simply makes no specific argument in the context of his requests for how the production he seeks is not unduly burdensome and, most important, is reasonably calculated to lead to the discovery of admissible evidence with respect to his claims. As it is not readily apparent to the court how these forms and documents could support his allegations, and as plaintiff fails to clarify how each might do so, the court will deny the motion as to these requests.
Second Motion
Plaintiff seeks further response/production as to his second set of requests for production of documents, served on defendant Adams and Vanderville. Second motion to compel (MTC2).
As to defendant Adams, plaintiff identifies the following of his second set of requests for documents as the subject of this motion: requests numbered 1, 2, 5, 6, 7, 8. MTC2, pp. 9-17, 32.
As to request nos. 1, 2, 5, 6, 7 and 8, no order compelling production is warranted. In these requests, each linked to, and dependent on, a separate interrogatory propounded by plaintiff, defendant has asserted that, as to each, no documents were identified in response to the interrogatory. For example, in the convolutions attendant to request no. 1, plaintiff asks for unredacted documents identified in response to interrogatory 2; Interrogatory 2 asked for documents that were identified in response to Interrogatory 1, which, in turn, sought a detailed description of every fact that defendants at Corcoran, from 12/17/04 to 3/21/06, "were acting in accordance with department policy/procedure related to cell housing integration of African American inmates with Caucasian and/or Hispanic inmates on Facility 3B." Plaintiff's declaration in support of MTC2, Exs. A & B, pp. 8, 17, 49. In response, after asserting objections as to form (vagueness) and on claimed privileges, such as attorney-client and work product, defendant states: "[w]ithout waiving the objections, responding party responds that there are no documents identified in response to Interrogatory no. 2." MTC2, p. 9; plaintiff's Dec., Ex. B, p. 49. By this motion, plaintiff puts only the document production requests at issue. In his motion, plaintiff appears to be saying that, as an example, his request is meant to reference his "complete inmate housing assignment, CSP Daily Record of Housing and Assignment Changes, pursuant to CDC operations manual sections 52020.5.3 and inmate transfers GA-Form 154 CDC operations Manual Section 520205.4." MTC2, p. 10. If plaintiff had such specific documents in mind, he could have requested them and not engaged in circumlocution. More to the point is defendant Adams' argument that as to the interrogatories cross-referenced in the request for production, defendant does not contend that defendants at Corcoran for the period identified were acting in accordance with department policy with respect to integrating African American inmates with Caucasian or Hispanic inmates. Opp., p. 2. That being the case, defendant did not identify any documents that would support such a contention and thus produced no documents.
In arguing so vehemently for production, plaintiff may be not be seeing the forests for the trees, in that by the response and the opposition as to this request, defendant Adams could be construed as making an admission that defendants were not in compliance with departmental policy with respect to integrating inmates. This analysis applies as well to defendant's responses to the other requests for production at issue where defendant Adams does not make the contention in response to the interrogatory for which plaintiff demands documentary support, i.e., that plaintiff lived in integrated housing at Corcoran. See, Opp., p. 3. That is, this reasoning could be applied with respect to plaintiff's set two requests for production served upon defendant Adams, i.e., regarding a claimed lack of information to support the contention that plaintiff lived in integrated housing at Corcoran from 12/17/04 to 3/21/06 (related to request no. 2); or insufficient information to support the contention that the Corcoran defendants forwarded plaintiff's specified appeals to plaintiff at HDSP or complied with procedure in this regard (related to request nos. 5 & 8); or insufficient information to support the contention that plaintiff's "confiscated documents" were disposed of per procedure (requests nos. 6 & 7). MTC2; plaintiff's Dec., Ex. B, pp. 39-45, 49-51. In any event, defendant Adams cannot be required to produce documents to support contentions that he does not make and, therefore, for which he does not identify supporting documents.
The motion as to each of these requests will be denied.
Requests Directed to Defendant Vanderville As to defendant Vanderville, plaintiff identifies the following of the second set of requests for production as the subject of his second motion to compel: 1 through 10. MTC2, pp. 17-32.
In his requests for production of documents no. 1, plaintiff asks defendant Vanderville to produce the documents identified in Interrogatory 2, wherein defendant identified the waiting lists of 270-eligible inmates following the response to Interrogatory 1, which asked for factual support for the claim in a first level appeal response to plaintiff's appeal log no. HDSP-C-06-00807, that HDSP Facility C program supervisors continually maintain a list of inmates eligible and approved for 270-design housing. MTC2, plaintiff's Dec., Ex. A & B, pp. 33, 54. In the response to the objections, on grounds of vagueness and various privileges including attorney-client and work product, defendant, without waiving objections, asserts that he does not have any responsive documents within his possession, custody or control. Id., at 64. In request no.2, plaintiff seeks documentary support (cross-referencing Interrogatories 3 & 4) for the first level appeal response to HDSP-C-06-00807, wherein it was set forth that the transfer of inmates to Facility B was done "on a seniority date of eligibility, meaning first come first moved based on bed space availability, ethnic balance and overall security and program needs." Id., at 54, 64. In response to Interrogatory no. 3, defendant, following objections, asserted that "inmates were transferred to 270-housing based on bed space availability and compatibility of potential cell-mates," and in Interrogatory response, no. 4, identified as the supporting documentation, the 270-eligible inmates waiting lists. Id., at 54-55. In request no. 3, plaintiff asks for documents that identified in Interrogatory no. 6, which again identifies as supporting documentation, the 270-eligible inmates waiting lists. Id., at 55, 64. This response relates to Interrogatory no. 5, which asks for the factual support of the first level response, again in HDSP-C-06-00807, wherein it was stated that plaintiff's "request to be placed in the 270-design housing unit at HDSP (Facility B) is partially granted in that you are on an approved waiting list to be moved to Facility B when bed space is available." Id., at 55. As to each of the requests for production, request nos. 1, 2 and 3, wherein the identified supporting document is the same, defendant asserts that the request is vague, protected by attorney-client and work-product and "other" privileges, but concludes that without waiving the objections, and after a reasonable inquiry, defendant does not have any responsive document in his possession, custody or control. Id., at 64.
Plaintiff has done a better job, at least as to these requests and this portion of his second motion, in demonstrating with adequate clarity the relevance of the discovery that he seeks from defendant Vanderville than he did in the first. The 270-design eligibility lists cannot be withheld on a claim of privilege where defendant fails so completely to meet his burden to invoke such a privilege. Defendants fail to provide an adequate basis for objection on grounds of privacy or confidentiality or security concerns to withhold the document or documents at issue.
The Ninth Circuit, while rejecting a per se waiver rule that would deem a privilege waived for failure to produce a privilege log within the thirty-day time limit of Fed. R. Civ. P. 34, has held that "boilerplate objections or blanket refusals inserted into a response to a Rule 34 request for production of documents are insufficient to assert a privilege." Burlington Northern & Santa Fe etc. v. U.S.D.C. Montana (Kapsner), 408 F.3d 1142, 1149 (9th Cir. 2005). "Whether a responding party states a general objection to an entire discovery document... or generally asserts a privilege objection within an individual discovery response, the resulting 'blanket objection' is decidedly improper." Eureka Financial v. Hartford Acc. and Index., 136 F.R.D. 179, 182 (E.D. Cal. 1991). "[Blanket assertions of the privileges] are 'extremely disfavored.'... The privileges] must ordinarily be raised as to each record sought to allow the court to rule with specificity." Clarke v. American Commerce Nat. Bank, 974 F.2d 127, 129 (9th Cir.1992) (referring to the attorney client privilege) (citation omitted). The party asserting the privilege has the burden to establish each element. Id. "[T]his burden can be met only by an evidentiary showing based on competent evidence, and cannot be 'discharged by mere conclusory or ipse dixit assertions.' " Bowne of New York City, Inc. v. AmBase Corp., 150 F.R.D. 465, 470 (S.D.N.Y.1993) (quoting von Bulow by Auersperg v. von Bulow, 811 F.2d 136, 144 (2d Cir.1987)). See also In re Grand Jury Investigation, 974 F.2d 1068, 1070-71 (9th Cir.1992) (finding privilege log and affidavits met burden).
In his opposition, defendant Vanderville declares that he has produced all documents that he has in his possession, custody and control in response to the second set of requests, but specifically as to request nos. 1 through 3 of the second set of document production requests did not produce the waiting lists of 270-eligible inmates in 2006 because he no longer has the documents, does not know if they still exist or where to find them as he is not the custodian of those records. Opp., Ex. E, Vanderville Dec., ¶ 3. The implication is that the lists at issue may still exist within the control of a custodian of records. These lists are germane to plaintiff's claims that he was retaliated and discriminated against in the manner of his housing at HDSP. Defendant, who this court finds to be in constructive possession of any such documents, will be required to do more than simply assert that they may not exist and that he is not the custodian. In re Bankers Trust Co., 61 F.3d at 469 ("legal ownership of the document is not determinative"). If such records are within the custody of the CDCR, production must be made within twenty days.
As to request no. 4, no further production will be required. The court's review of the request and defendant's supplemental production of the September 1, 2005, memorandum at issue therein is sufficient to moot this portion of the motion.*fn9 Opp., Ex. E, Vanderville Dec., ¶ 4.
As to plaintiff's requests for production numbers 5 through 10, no production will be required. Defendant Vanderville correctly asserts that plaintiff is not entitled to production as to requests which correspond to interrogatories that exceed the 25-interrogatory limit. Opp., p. 3. The court has no record of plaintiff seeking leave to exceed the limit. See Fed. R. Civ. P. 33(a)(1). Plaintiff does not dispute that his interrogatories to defendant Vanderville exceed the interrogatory limit, but contends in his reply to the opposition that he has good cause for doing so because they are relevant and relate to material facts. Reply, p. 24. However, the court will not retroactively grant leave to exceed the interrogatory limit, leave to which plaintiff too easily presumes he is entitled. Moreover, the court's review of these requests' responses demonstrate that, notwithstanding defendant's objections to the related interrogatories on the basis, inter alia, that plaintiff had exceeded the number of interrogatories, defendant went on to assert in related interrogatory answers that defendant did not make the contention at issue and therefore identified no supporting documentation. MTC2, plaintiff's Dec., Exs. A & B, pp. 24-26, pp. 56-60, 65-67; Opp., Exs. C & D, pp. 39-41, 47-51. The court cannot order production of documents to support a contention which the defendant does not make. The motion to compel production as to request nos. 5 through 10 will be denied.
Accordingly, IT IS ORDERED that:
1. Plaintiff's motion to compel production in response to his first set of requests for production, filed on 6/06/08 (docket # 47), is granted in part and denied in part, as follows:
A) As to defendant Adams: i) Granted as to his request nos. 9, 19 and 20, and also, but only as modified above, to request nos. 10, 14, 16 and 18;
ii) Denied as to request nos. 13, 15, and 17.
B) As to defendant Vanderville:
i) Granted as to request no. 9, and also, but only as modified above, to request no. 10;
ii) Denied as to request nos. 11, 13 through 20.
2. Plaintiff's motion to compel further production in response to his second set of requests for production, filed on 7/24/08 (# 54), is denied as to defendant Adams, and, as to defendant Vanderville, it is granted as to request nos. 1, 2, and 3, and otherwise denied; and
3. Defendants must provide the discovery compelled herein, and file in this court proof of service thereof, within twenty days of the date this order is filed.
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Phil Hands by Phil Hands
- June 04, 2014
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Comments (4) (Please sign in to comment)
Like this worked so well in Germany and Denmark….
Still just a minor step to solve a major problem. But hey, don't worry, those export terminals to ship our coal to China (who's implementing stricter standards than ours, and more effort on alternatives as well) is a good way to lower prices here at home as "the market" demand sets higher prices.
Night, electricity is a luxury good in Germany and Denmark. In Germany it costs the equivalent of about .35 cents a KwH compared to .11 cents in America.
People pay literally hundreds of euros a month for tiny quantities.
Alaska is in the USA and electricity is .29 per KWH and we have more coal than any other single state.
Perhaps there is some misunderstanding on your part about how pricing is set.
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subset: commoncrawl


text:
Burglar locks up homeowner in gun closet, gets shot
One of the three thieves was shot in the shoulder and leg, falling in front of the house as the other two took off
By Snejana Farberov
The Daily Mail
HOUSTON, Texas — The victim of an armed home invasion in Houston has turned the tables on the brazen intruders after they stuffed him into a closet that turned out to be the place where he stores his gun.
Police say it all started at around 2pm Tuesday when three men broke into a home in the 8200 block of Braeburn Valley Drive and assaulted the resident. After a brief scuffle, the hapless perpetrators shoved the man into a closet, not knowing that there was a gun in there.
On the first floor, the man confronted one of his assailant and the two exchanged gunfire, according to police. The resident, who shares the house with his parents, escaped unharmed, but the armed suspect was struck in the shoulder and leg. He fled on foot down the street, but did not get far before he collapsed. His two suspected accomplices took off from the scene in a Chevrolet Tahoe.
Full Story: 'Dumb' house burglar shot after locking homeowner inside his own GUN CLOSET
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text:
Analysts and investors will be looking forward to the next earnings release from Regal Entertainment Group (NYSE:RGC) which is scheduled to be on or around 2016-10-27 for the period ending 2016-09-30. Covering sell-side analysts have a current quarter earnings per share estimate of $0.25. In the same quarter last year, the company posted EPS of $0.18.
Before and after the earnings report, covering Wall Street analysts often make updates to their projections. Analysts taken into consideration by Zacks Research have a current mean target price of $24.104 on shares of Regal Entertainment Group (NYSE:RGC). This target consists of 13 research analysts polled by Zacks Research. Analysts may have different stances on where they see the stock headed in the future.
Among the polled analysts, the highest estimate sees the stock going to 31 in the next year. The analyst with the lowest target price views shares reaching $19 within the same period. In looking at the standard deviation of all estimates, we arrive at 3.353. Zacks Research also compiles analyst ratings using a scale that ranges from 1 to 5. If the company has a ratings score of 1, this would represent a Strong Buy. If the company has a 5 rating, this would signify a Strong Sell. Combining all the ratings on Regal Entertainment Group (NYSE:RGC), the current mean stands at 2.33. Breaking those down we see that the ratings are as follows: 6 Strong Buy, 0 Rated Buy, 8 Rated Hold and 0 Rated Sell.
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Analyst recommendations and estimates are for informational purposes only and should be used along with a number of other factors when considering an investment position. Part of the data in this report is derived from Zacks Research and FactSet. Ratings and estimates change daily and thus the numbers may differ slightly if a new report has been issued within the last 24-hours. The consensus numbers take into account the reports from over 160 brokerage firms. The job of analysts is to issue recommendations for their clients, and not typically for the general public. Analyst forecasts, earnings estimates and price target projections are issued to help their clients make money through stock investments. We in no way are suggesting that readers make any decision on Regal Entertainment Group (NYSE:RGC) based on the information in this report.


text:
blackboardnoun [ C ]uk /ˈblæk.bɔːd/ us /-bɔːrd/ US also chalkboard
- Alice rubbed the blackboard clean for the teacher.
- She rubbed the sums off the blackboard for the teacher.
- I hate the scrape of chalk on a blackboard.
- The lecturer illustrated his point with a diagram on the blackboard.
- My daughter has a blackboard in her bedroom.
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text:
The National Park List
July 30, 2009
Filed under Feature Stories
In our opinion, Yellowstone should be at the top of the list, but here are 10 more units of the National Park Service we think should follow it. You couldn't go wrong if these made up your next decade of vacations.
Island Park
The rugged coast of Maine is the setting for this marine-environment jewel. Acadia National Park has a historic side with its 19th Century carriage roads (leftovers from prior private ownership) now filled with bicycles; but also includes the tallest mountain on the U.S. Atlantic coast, scenic rocky shorelines, and spectacular ocean views from hiking trails and roads that ring the park. Acadia NP: 207/288-3338; nps.gov/acad.
2000 Arches
Within its borders, you'll fine the highest density of natural arches in the world. This fantastic sandstone landscape is the result of millions of years of exposure to the forces of nature, resulting in a collection of colors and forms in Arches National Park, Utah. While you're there, make sure to spend some time in Canyonlands National Park right next door. Spring and fall are best. Arches NP: 435/719-2299; nps.gov/arch. Canyonlands NP: 435/719-2313; nps.gov/cany.
The Bigs
Denali National Park not only features the Big One, the tallest mountain in North America (Mount McKinley) at 20,320 feet, but also offers the Big Five (grizzly bear, wolf, Dall sheep, moose and caribou) of mammals. Birds and wildflowers are also abundant during Alaska's summer months. Summer and fall are best seasons to visit, but it has been known to snow in July, so be prepared with cold-weather clothing at all times. Denali NP: 907/683-2294; nps.gov/dena.
'Gator World
The largest subtropical wilderness in the U.S., Florida's Everglades harbor many rare and endangered species. You'll find everything from alligator to anhinga; and 156 miles of canoe/kayak or walking trails that allow visitors to explore deep into the park. The Ten Thousand Islands area of the park is part of the largest stand of protected mangrove forest in the Western Hemisphere. Everglades NP: 305/242-7700; nps.gov/ever.
Ice Palace
Often referred to as the Crown of the Continent, Montana's Glacier National Park delivers thick forests, sublime meadows, jagged mountains and crystalline lakes. And then there are the beautiful glistening glaciers—26 of them. You have to drive Going-to-the-Sun Road. Completed in 1932 after 11 years of labor, it's considered one of the most scenic drives in America and is a registered National Historic Landmark. Glacier NP: 406/888-7800; nps.gov/glac.
Grandest Grand
Standing next to the edge of the Grand Canyon overwhelms many first-time visitors. It's a mile deep. But it's not just the depth. It stretches across northern Arizona for 277 river miles, and at one point, is 18 miles wide. The North and South Rim are almost different worlds. The south side is semi-arid and populated by stunted juniper, while much of the north side is alpine-like and forested with tall pines. Grand Canyon NP: 928/638-7888; nps.gov/grca.
Mountains Majestic
Straddling the backbone of the Appalachians between Tennessee and North Carolina, Great Smoky Mountains National Park is a hiker's paradise with more than 800 miles of maintained trails. America's most visited park, it offers a diverse set of flora and fauna, ancient mountain ridges, and the well-preserved vestiges of a bygone Southern Appalachian lifestyle. Some 1500 black bears live in the park, too. Great Smoky Mountains NP: 865/436-1200; nps.gov/grsm.
Wet and Green
Olympic National Park in Washington features windy Pacific Ocean beaches, glacier-rimmed peaks, and cool coniferous forests. It holds the largest remaining sections of old growth forest and temperate rain forest in the lower 48 states. The north-south oriented mountain range that splits the park creates a "rain shadow" and two climates, wet rain forests in west-facing valleys and much drier landscapes on the eastern side. Olympic NP: 360/565-3130; nps.gov/olym.
Rocky Range
Within its borders, Rocky Mountain National Park ranges from lush valleys filled with elk to weather-beaten peaks more than 14,000 feet high where bighorn sheep scramble about. Mule deer, moose, black bear, coyote, cougar, hawk and eagle also inhabit this Colorado park. June and July bring wildflowers; autumn renders the park's aspen in golden hues. The Continental Divide splits the park. Rocky Mountain NP: 970/586-1206; nps.gov/room.
So close, it would be a shame to not see both during the same trip to California. Yosemite National Park showcases a collection of granite monoliths surrounding a valley that no words can accurately describe. Sequoia/Kings Canyon National Park holds the largest tree on Earth, "General Sherman" at 276 feet tall and 36.5 feet wide at the base, and the highest mountain in the continental U.S., Mount Whitney at 14,494 feet. Yosemite NP: 209/372-0200; nps.gov/yose. Sequoia/Kings Canyon NP: 559/565-3341; nps.gov/seki.


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BY TRISHA SAKHUJA Staff Writer What started as a guerilla community garden on an abandoned lot in Long Island City is now seeking approval from the Metropolitan Transportation Authority to b... Read more
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Monday, May 05, 2008
ooohhh. . .aaaahhhh. . .
aren't these cute? i couldn't pass them up on my quick trip to michael's for last minute mother's day gift and teacher appreciation items.
now to find something to go with them. . .
catch you soon -
Written By: Hillary Chybinski
I'm Hillary - a wife, mom, Lifestyle Blogger, Social Media Strategist, crafter, reader and dreamer. This is my slice of the web where I share ideas and inspiration for living a simple, casual life. Find posts about adventure, family, food, home, style and more.
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Get Tutoring Info Now
I have taught young people the Spanish language and culture for 33 years. I enjoy watching students understand and create in Spanish in all formats, including videos, audios, writing original episodes of superheroes, performing plays, and any way to express themselves with the newly learned language. I look forward to working with students to enhance their appreciation and love for the Spanish language and culture!
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Price $2,899.99
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Truly something right out of 'Better Homes and Gardens', Spring Cottage Edition. Custom builder's own 1,700 square foot, beautifully and colorfully decorated with tasteful cottage decor. Perched high on a hill, directly across from Torch lake on gorgeous Northwest Torch Lake Drive. Located nine miles north of Elk Rapids and 22 miles south of Charlevoix, home backs up to Ag-a-ming Golf Course. Fully furnished with new everything, mattresses, furniture, dishes, microwave, coffee maker, toaster, TV, DVD/VCR player, washer and dryer. Two car garage underneath main level and small private deck with view off master bedroom. Gas fireplace. For the musically inclined, there is a tuned, Baldwin upright piano. No smoking, no pets. Two bedrooms with two baths. Comfortably sleeps six. Bike for eight miles along Torch Lake and experience virtually no traffic. Boat launch 1/5 mile to the north and 300 feet DNR frontage 1/5 miles to the south. Conveniently located to hiking, Lake Michigan beaches, golf, fishing, skiing and much more.
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Does this attraction provide visitors with a taste of the local culture?
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Would this be a good hot day activity?
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Is this attraction a good place to visit on a honeymoon?
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If you have only 3 hrs in islamabad .... and you want to have a look of whole... please go here... You will enjoy
This the best place where you can have the best view of the twin Cities. Very pleasant environment and quality good is also available here
wao it is excellent place where i can see Faisal mosque and islamabad view ,saw monkey at the road side it is very best
There was a lot of fog but still the views were beautiful! Drive is very comfortable and a lot of natural beauty...
A well worth seeing. Amazing views of the city from different heights. Nice and enjoyable place for kids.
Dama e Koh is a must-visit-place in Islamabad. I used to go there via a trail near to Faisal Mosque. Beautiful place!!
This is an extremely beautiful place to visit with family. Lots of things to do. Lovely nature walks up the mountains. Stalls which sell souvenirs and other goods. There are 2 restUrants at the peak of daman e koh. Very nice food, fries burgers, ice cream etc. sit down to eat and watch monkeys swing above you in the trees....
Well Daman-e-Koh is actually a bit lower than the image in the picture. About 2 kilometers lower than the point in this display picture here. It is sort of a jogging track cum park for sky line views, sunsets, sunrises and more. Best for a walk with your better half.
The best food i ate in pakistan was in this place, from the starters to the mains, loved the grill and great service too, loved the experience
Amazing place to visit specially at night it is very romantic, breathtaking scenery, a great restaurant to enjoy grilled BBQ


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United States District Court, N.D. Illinois, Eastern Division
May 1, 2015
LaSHONDA PEEBLES, Plaintiff,v.CHICAGO STATE UNIVERSITY, et al., Defendants.
HARRY D. LEINENWEBER, District Judge.
Plaintiff LaShondra Peebles ("Peebles") initially filed this lawsuit in the Circuit Court of Cook County, Illinois alleging a single cause of action under the Illinois State Officials and Employees Ethics Act (the "Ethics Act"), 5 ILCS 430/15-5, et seq. On March 25, 2015, Defendants removed the action to the Northern District of Illinois. Before the Court is Peebles' Motion to Remand the Case to State Court and for Attorneys' Fees and Costs [ECF No. 11]. For the reasons stated herein, Peebles' Motion to Remand is granted, and her Motion for Attorneys' Fees and Costs is denied.
The allegations of Peebles' Complaint are briefly summarized below. Prior to her termination on June 2, 2014, Peebles served as Interim Vice President of Enrollment and Student Affairs for Defendant Chicago State University ("CSU"). Peebles' Ethics Act claim is premised on three incidents that allegedly occurred during her employment and gave rise to her wrongful termination.
The first incident involves Peebles' disclosure of certain information to the United States Department of Education (the "DOE"). In April 2012, Peebles was charged with renewing the Participation Agreement between CSU and the DOE, which enables CSU to receive Title IV federal student financial aid. When Peebles discovered that CSU's prior Participation Agreement falsely stated that CSU did not offer off-site classes, she contacted the DOE. Ultimately, the DOE conducted a review and provisionally approved a renewed Participation Agreement. However, CSU administrators prevented Peebles from reporting the university's provisional status to the CSU board.
The second incident involves Peebles' refusal to authorize payments to a university food vendor in the absence of a contract. Although Peebles asked for a copy of the contract between CSU and the vendor, CSU administrators failed to produce one and urged Peebles to sign off on the payments anyway. Peebles threatened to call the Illinois Auditor General.
The final incident involves Peebles' failure to file a sexual harassment claim against a CSU professor who was critical of the CSU administration. Although Peebles repeatedly denied that she had been sexually harassed by the professor, CSU administrators urged her to lodge a complaint. Peebles refused.
On June 2, 2014, without the pre-termination hearing required under university regulations, CSU terminated Peebles' employment.
Under 28 U.S.C. § 1441, a defendant may remove a case from state court to federal court if the federal district court would have original subject matter jurisdiction over the action. Disher v. Citigroup Global Markets Inc., 419 F.3d 649, 653 (7th Cir. 2005), vacated on other grounds, 548 U.S. 901 (2006). The party seeking to invoke federal subject matter jurisdiction bears the burden of showing that removal is proper. Boyd v. Phoenix Funding Corp., 366 F.3d 524, 529 (7th Cir. 2004).
Defendants seek to invoke federal jurisdiction under 28 U.S.C. § 1331, which provides federal district courts with original jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States." Most often, a case arises under federal law "when federal law creates the cause of action asserted." Evergreen Square of Cudahy v. Wis. Hous. & Econ. Dev. Auth., 776 F.3d 463, 465 (7th Cir. 2015) (citation and internal quotations omitted). However, in a small category of cases, federal question jurisdiction may arise "even when a claim finds its origins in state rather than federal law." Gunn v. Minton, 133 S.Ct. 1059, 1064 (2013). Federal jurisdiction over a state-law claim is proper when a federal issue is: "(1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress." Id. at 1065.
Peebles seeks to remand the case for lack of subject matter jurisdiction. Defendants argue this Court has jurisdiction, and removal is proper, because Peebles' complaint (1) contains claims arising under federal law, and (2) presents substantial questions of federal law.
A. Federal Claims
Defendants first contend that removal is appropriate because several federal claims are buried in Peebles' Complaint, including a federal whistleblower retaliation claim under the American Recovery and Reinvestment Act of 2009 (the "ARRA") and § 1983 claims based on violations of Peebles' due process and free speech rights.
The "artful pleading doctrine" is a corollary to the well-pleaded complaint rule. Burda v. M. Ecker Co., 954 F.2d 434, 438 (7th Cir. 1992). Under the artful pleading doctrine, "[a] plaintiff may not frame his action under state law and omit federal questions that are essential to recovery." Id. Although plaintiffs may omit federal claims from their complaints to avoid federal jurisdiction, "they may not omit necessary federal elements of an included claim." Ne. Rural Elec. Membership Corp. v. Wabash Valley Power Ass'n, Inc., 707 F.3d 883, 890 (7th Cir. 2013). Removal is also proper where "federal law completely preempts a plaintiff's state-law claim." Rivet v. Regions Bank of La., 522 U.S. 470, 475 (1998).
The Court turns first to the potential ARRA claim. Even if Peebles could state a claim under ARRA, removal is not proper on this basis because Defendants have not established that ARRA completely preempts state whistleblower actions. In fact, the section of ARRA governing state whistleblowers explicitly provides that "[n]othing in this section may be construed to preempt, preclude, or limit the protections provided for public or private employees under State whistleblower laws." Pub. L. 115-5, § 1553(f)(2), 123 Stat. 115, 301 (2009).
The Court now turns to the due process and speech issues embedded in Peebles' Complaint and assesses whether they are "necessary federal elements" of her Ethics Act claim. The Ethics Act prohibits retaliatory action against state employees who (1) disclose to a supervisor or public body "an activity, policy, or practice of any officer, member, State agency, or other State employee that the State employee reasonably believes is in violation of a law, rule, or regulation, " or (2) provide information to a public body "conducting an investigation, hearing, or inquiry into any violation of a law, rule, or regulation by any officer, member, State agency, or other State employee." 5 ILCS 430/15-10(1)-(2).
Neither of the constitutional violations Defendants point to is a "necessary federal element" of Peebles' claim. A violation of due process is not an essential element, although, as Peebles correctly points out, failure to provide a pre-termination hearing may serve as indirect evidence of retaliatory intent or pretext. See, Irick v. Ill. Human Rights Comm'n, 726 N.E.2d 167, 173 (2000). A First Amendment violation is not an essential element either. Defendants assert a First Amendment violation without attempting to establish that Peebles' speech was, in fact, protected. As the Supreme Court has held, "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).
Because federal law does not preempt Peebles' claim, and no federal claims constitute an essential element of her claim, removal on this basis is improper.
B. Substantial Questions of Federal Law
Defendants next argue that removal is proper because Peebles' Ethics Act Claim necessitates the resolution of several substantial questions of federal law, particularly with respect to Peebles' disclosure of CSU's alleged misstatements to the DOE. The Ethics Act requires Peebles to show that she was retaliated against for disclosing what she reasonably believed to be a violation of a law or regulation, or that she provided information to a public body that was investigating a violation of a law or regulation. See, 5 ILCS 430/15-10. To determine whether violation of a law or regulation took place, Defendants argue, the Court will have to assess whether Title IV required CSU to amend its prior DOE applications and whether CSU's off-site locations violated the Participation Agreement, among other substantial issues of federal law. ( See, Defs.' Opp. ECF No. 15, at 5.)
"[T]he mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction." Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 813 (1986). Turning to the four-part test identified in Gunn, the Court finds that the federal issues Defendants point to are neither "substantial" nor "necessarily raised" by Peebles' complaint. An issue of federal law is substantial when it is important to the federal system as a whole, not merely when it is "significant to the particular parties in the immediate suit." Gunn, 133 S.Ct. at 1066. In Gunn, the Supreme Court held that removal of a legal malpractice case to federal court was improper, even though analysis of the plaintiff's malpractice claim hinged upon a question of federal patent law. Id. at 1065. The Court found that the federal issue - whether an inventor's infringement claims would have failed had his attorneys raised an experimental-use argument - was not substantial because it had no broader effects reaching beyond the malpractice case itself. Id. at 1068. Here, the Ethics Act does not require Peebles to establish that a federal law was actually violated. See, 5 ILCS 430/15-10. Whether she can establish that she "reasonably believed" CSU violated DOE regulations will not impact other litigation involving Title IV federal financial aid.
Moreover, the Court finds that federal questions are not "necessarily raised" by Peebles' claim. A federal question is not "necessarily raised" when a federal issue is not an essential element of a plaintiff's state-law claim. See, Ill. AFL-CIO v. Rauner, No. 15-CV-271-SMY-SCW, 2015 WL 1639637, at *2 (S.D. Ill. Mar. 23, 2015). Here, it is not necessary for Peebles to address the federal questions Defendants identify to state a claim under the Ethics Act. Her claim is premised on three incidents that took place during her employment, only one of which involves the alleged violation of federal law. The Court therefore finds that federal questions are not "necessarily raised" by Peebles' Complaint.
Because no substantial federal questions are necessarily raised by Peebles' claim, and no "necessary federal elements" are omitted from it, Peebles' Motion to Remand is granted.
C. Plaintiff's Request for Attorneys' Fees and Costs
Under 28 U.S.C. § 1447(c), a court may award attorneys' fees and costs incurred as a result of removal. An award of fees and costs is appropriate "only where the removing party lacked an objectively reasonable basis for seeking removal." Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). In determining whether to award attorneys' fees under § 1447(c), courts must balance the policy objectives of the removal statute and its fee-shifting provision, protecting the right to remove while deterring removals brought for improper purposes. Micrometl Corp. v. Tranzact Techs., Inc., 656 F.3d 467, 470 (7th Cir. 2011). Whether to award attorneys' fees and costs rests within the sound discretion of the district court. Tenner v. Zurek, 168 F.3d 328, 330 (7th Cir. 1999).
Although the Court concludes that remand is appropriate, it does not find that Defendants lacked an "objectively reasonable basis" for seeking removal. Defendants advanced reasonable legal arguments in their effort to show that federal claims - and substantial questions of federal law - were part and parcel of Peebles' Ethics Act claim. It does not appear that Defendants sought to remove this case to delay the litigation or for any other improper purpose. Peebles' request for attorneys' fees and costs is therefore denied.
For the reasons stated herein, Peebles' Motion to Remand the Action to State Court [ECF No. 11] is granted. The Court denies Peebles' request for attorneys' fees and costs. The case is remanded to the Circuit Court of Cook County, Illinois.
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