(PC) Cortinas v. Vasquez

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY WILLIAM CORTINAS, Case No. 1:19-cv-00367-JLT-SKO (PC)

12 Plaintiff, ORDER DENYING REQUEST FOR 13 v. SUBPOENA DUCES TECUM (Doc. 100)

14 VASQUEZ, et al., ORDER DENYING EX PARTE REQUEST 15 Defendants. FOR SERVICE OF SUBPOENA DUCES TECUM FOR RECORDS AND DENYING 16 REQUEST TO REOPEN DISCOVERY (Doc. 111) 17

ORDER DENYING PLAINTIFF’S 18 RENEWED REQUEST FOR DISCOVERY 19 (Doc. 112)

20 21 Plaintiff, Larry William Cortinas, is proceeding pro se and in forma pauperis in this civil 22 rights action pursuant to 42 U.S.C. § 1983. 23 I. INTRODUCTION 24 This matter is currently scheduled for an evidentiary hearing on August 2, 2022, at 10:00 25 a.m. Pending before the Court are three requests by Plaintiff concerning discovery he contends is 26 necessary and relevant to the evidentiary hearing. 27 On April 4, 2022, Plaintiff filed an “Ex Parte Request for Subpoena Duce[s] Tecum for April 19, 2022 at 10:30 a.m. upon the Corcoran Appeals Coordinator D. Gore Jr. Records Only 1 Request” (“Request”) (Doc. 100). The Court construed Plaintiff’s filing as a request for issuance 2 of a subpoena to D. Gore Jr., to produce documents at the evidentiary hearing, and in an order 3 issued April 8, 2022, Defendants were directed to file a response to Plaintiff’s request no later 4 than April 15, 2022. (Doc. 105.) 5 On April 15, 2022, Defendants filed their response. (Doc. 109.) On April 29, 2022, 6 Plaintiff filed a reply. (Doc. 113.) Before filing his reply, on April 18, 2022, Plaintiff also filed an 7 “Ex Parte Request for Service of Subpoena Duce Tecum for Records in Preparation of 8 Evidentiary Hearing Scheduled for June 22, 2022, or Opening of Discovery for the Hearing on a 9 Limited Scope until May 30, 2022” (Doc. 111) and a document titled “Plaintiff Renews His 10 Request for Discovery as the Evidentiary Hearing Has Been Moved to June 22, 2022. Said Order 11 was Denied April 4, 2022” (Doc. 112). 12 For the reasons stated below, the Court denies Plaintiff’s requests. 13 II. DISCUSSION 14 A. Request Filed April 4, 2022 (Doc. 100) 15 i. Plaintiff’s Request 16 As he has done previously, Plaintiff seeks records from D. Gore, Jr., Appeals Coordinator, 17 regarding a physical and sexual assault of April 30, 2018. (Doc. 100 at 1.) Plaintiff contends “all 18 communications,” including “all E-mails … and interviews . . . The timing of those materials and 19 how and when they were gathered.” (Id.) Plaintiff states the records are “essential to [his] ability 20 to show that CDCR made the administrative remedy unavailable” by withholding a “response for 21 16 months.” (Id.) Plaintiff contends officials “intentionally used an CDCR 1824 form as an 22 appeal and never addressed sergeant Vasquez’s threat to kill” Plaintiff and his family. (Id.) 23 Plaintiff “believe[s] that E-mails will reveal exactly how dirty this appeal process was made in an 24 effort to protect” corrupt CDCR officers; he contends “Defendants have lied to their attorney 25 from the beginning.” (Id at 2.) Plaintiff concludes the issuance of the subpoena “will force their 26 hand in this issue.” (Id.) 27 // 1 ii. Defendants’ Response 2 Defendants contend the Court should deny Plaintiff’s request because (1) the documents 3 are not relevant to whether the appeals process was unavailable, (2) defense counsel has already 4 agreed to provide Plaintiff with certain documents via informal discovery, and (3) Defendants 5 intend to call the current Appeals Coordinator to testify at the evidentiary hearing and Plaintiff 6 will be afforded an opportunity to cross-examine at that time. (Doc. 109.) 7 As to Defendants’ first basis for denial of the request, Defendants contend the documents 8 are not relevant because Defendants provided Plaintiff with notices informing him of delay during 9 the period in question, and, therefore, remedies remained available despite the reason for delay. 10 (Id. at 3.) Defendants acknowledge Plaintiff contends he never received notices of delay, but 11 contend Plaintiff’s requests for the issuance of a subpoena are not relevant because they simply 12 speculate regarding the reason for the delay. (Id.) Defendants contend the “only dispute is 13 whether Plaintiff received the notices prison officials sent him informing him of the delay.” (Id.) 14 Defendants further contend they have “already provided evidence that the appeal response 15 was delayed,” citing to their statement of undisputed facts in support of the motion for summary 16 judgment. (Id. at 3-4.) Defendants also assert Plaintiff’s request for “’E-Mails’” is 17 disproportionate to the needs of the case considering the burden outweighs the likely benefit – as 18 such a request would “require identifying custodians, requesting their electronic emails, and 19 reviewing emails for potentially responsive information and privileged materials.” (Id. at 4.) 20 As to Defendants’ second contention, defense counsel has already agreed to provide 21 Plaintiff with certain documents via informal discovery, if available and not otherwise privileged. 22 (Doc. 109 at 4.) 23 As to Defendants’ third basis for denial of the request, Defendants contend Plaintiff’s 24 request is unnecessary because Plaintiff will have an opportunity to cross-examine the Appeals 25 Coordinator at the evidentiary hearing. (Doc. 109 at 4.) 26 iii. Plaintiff’s Reply 27 In his reply, Plaintiff contends the records he seeks are necessary and proposes an in 1 information necessary to impeach and or dispute the records which the appeal coordinator who 2 ‘DID NOT’ prepare the records at issue can only testify as to what is in the computer…Not to the 3 materials that were used to prepare the appeal.” (Id.) He further contends the current Appeals 4 Coordinator cannot “testify to E-MAILS related to” his appeal “and the other attempted cancelled 5 appeals which were appealed.” (Id.) Plaintiff contends Defendants’ claims that they followed 6 procedures, particularly “title 15 section 3084.9 subsection 5 & 6” are incorrect because those 7 sections “clearly state that after 180 days or 160 days of exceptional delays . . . the appeals is 8 considered DENIED and claimant should proceed to the next Level.” (Id at 1-2.) 9 In his supporting points and authorities, Plaintiff contends that “when the coordinator 10 failed to ensure that their notices were received VIA LEGAL MAIL … or even U.S. MAIL they 11 failed to provide[] proper notification.” (Doc. 113 at 2.) Plaintiff contends Defendants “failed to 12 allow the administrative appeal regarding the sexual assault to be filed [M]ay 1, 2018” and 13 “[t]hey turned a 1824 A.D.A. complaint into a grievance . . when it clearly states NOT AN 14 APPEAL on the form.” (Id.) Plaintiff states: 15 I believe there are E-MAIL(S) and other records which will prove that C.D.C.R. was well aware of the problem. .and entered into a 16 cover up mode of protection for the defendants. . . ONLY THE SUBPOENA’D duces Tecum record will force this to the LIGHT. . 17 . Which will prove the availability of the administrative remedy was not available. . . INTENTIONALLY. . therefore the motion for 18 plaintiff must be granted to ensure JUSTICE and the TRUTH come to light. 19 20 (Id. at 2.) 21 Plaintiff also objects to Defendants’ response because Plaintiff did not receive it until 22 April 22, 2022, at 4 p.m. and believes it to be “yet another attempt to sandbag” him. (Doc. 113 at 23 3.) Plaintiff repeats his contentions that the requested documentation is relevant, that if there is a 24 question as to relevance the documents can be reviewed in camera, that the materials “are 25 necessary to impeach the appeal coordinator and go directly to the unavailability of exhaustion of 26 the administrative remedy,” and that the present coordinator “WILL NOT HAVE DIRECT 27 KNOWLEDGE,” “WILL NOT BE ABLE TO TELL US HOW, WHEN, WHY THE appeal was st 1 exact same worded document…,” leaving Plaintiff “unable to impeach” the Appeals Coordinator. 2 (Id. at 3-4.) 3 iv. Analysis 4 The documents Plaintiff seeks are not relevant because the availability of the 5 administrative remedy can be resolved at the evidentiary hearing without additional 6 documentation. Plaintiff’s contentions to the contrary are nothing more than speculation. 7 Whether the administrative remedy was available to Plaintiff can be resolved by 8 consideration of the evidence Plaintiff may offer–that he did not receive notice of the delays 9 associated with CSPC-7-18-02210–and consideration of the evidence Defendants intend to offer– 10 that Plaintiff did receive notice of the delays.1 And, whether prison officials complied with the 11 applicable regulations can also be resolved without the information Plaintiff seeks. If the 12 regulation requires notice as Plaintiff contends – via “LEGAL MAIL” or U.S. Mail2 – emails and 13 interviews regarding the “timing” or how the materials were gathered are not relevant. Resolution 14 of the issue will turn on the testimony offered by Plaintiff that he did not receive the notices of 15 delay and defense witness testimony that Plaintiff did receive such notice. Plaintiff will have an 16 opportunity to cross-examine Defendants’ witnesses–and Plaintiff may inquire into the manner in 17 which the notices were purportedly delivered to him–and to potentially impeach this testimony. 18 Plaintiff takes issue with Defendants’ stated intent to call the current Appeals Coordinator 19 at California State Prison, Corcoran, J. Mendez, as a witness at the evidentiary hearing, 20 contending Mendez lacks personal knowledge. Plaintiff cannot dictate who Defendants call as 21 witnesses at the evidentiary hearing. As Plaintiff has been previously advised, if he wishes D. 22 Gore Jr.3 to testify at the evidentiary hearing, it is Plaintiff’s responsibility to seek issuance of a 23 1 In their motion for summary judgment, Defendants argue “twelve notices were provided to Plaintiff ….” 24 (Doc. 61 at 10.)

25 2 In their motion for summary judgment, Defendants have provided copies of the June 19, 2018, August 2, 26 2018, September 11, 2018, October 24, 2018, December 7, 2018, and January 24, 2019, March 8, 2019, April 19, 2019, June 4, 2019, July 12, 2019, August 28, 2019, and October 10, 2019 notices of exceptional 27 delay, citing complexity of the decision, action, or policy, in the form of Memorandum directed to “Cortinas, P09908.” (See Doc. 64-1 at 16-28, Ex. D.) 3 D. Gore Jr. has apparently retired or resigned from the California Department of Corrections and 1 subpoena for Gore’s testimony and to pay any witness fees or costs. (See Doc. 93 at 4 [Order 2 dated 3/21/22].) 3 B. Request Filed April 18, 2022 (Doc. 111) 4 Plaintiff seeks issuance of a subpoena for “records only,” or, alternatively, he asks the 5 Court to “OPEN[] BACK UP THE DISCOVERY PERIOD FOR THE ITEMS SOUGHT IN 6 THE SUBPOENA.” (Doc. 111 at 1.) Plaintiff contends good cause exists because from 7 “November 15, 2021” until “MARCH 4th 2022” he was in quarantine and, therefore, had no law 8 library access. (Id.) Plaintiff asks “for a fee waiver for sheriff’s service or in the alternative for the 9 COURT CLERK TO E-MAIL or FAX the subpoena to the prison litigation coordinator” at 10 Corcoran State Prison, who can then “gather the records and e-mail or fax them to the prison 11 litigation coordinator” at his present facility. (Id. at 2.) Plaintiff contends the alternative “poses no 12 undue hardship” “as they contact each others office and assist each other in the course of monthly 13 bus[i]ness.” (Id.) 14 Plaintiff appended a subpoena form directed to “D. GORE Jr” at “CALIFORNIA STATE 15 PRISON CORCORAN APPEALS COORDINATOR” seeking production of the following: 16 ALL E-MAIL(S) COMMUNICATIONS, RECORDS, INTERVIEWS HOWEVER PRESERVED ON LOG NUMBERS 17 18-2210, 18-2208, 18-2286, ALL MATERIAL REL[]ATED TO THESE ADMINISTRATIVE APPEALS up through 2022 APRIL 18 30 19 (Id. at 3.) 20 i. Analysis 21 For the reasons explained below, discovery will not be “reopened.” The documentary 22 evidence Plaintiff seeks–email communications, records, and interviews–will not resolve the 23 issue of whether Plaintiff received notice of the delays, thus making the administrative remedy 24 unavailable to him. These matters can be resolved by testimony of the current Appeals 25 Coordinator at the evidentiary hearing. Additionally, as discussed above, if Plaintiff wishes to 26 offer the testimony of D. Gore Jr., he may follow the proper process for doing so as previously 27 addressed by this Court. (See Doc. 93 at 4 [Order dated 3/21/22].) 1 (Doc. 51.) The order included a discovery cut-off deadline of October 6, 2021. (Id. at 3.) Plaintiff 2 propounded written discovery on May 9, 2021 (Request for Radio Traffic), May 26, 2021 3 (Interrogatories to Vasquez & Washington/Requests for Production of Documents to Vasquez & 4 Washington/Request for Admissions to Vasquez & Washington), May 31, 2021 (Admission to 5 Washington), June 7, 2021 (Request for Production of DOM 2021) and June 17, 2021 6 (Interrogatories to Washington). (See Doc. 53 at 3.)4 7 On August 30, 2021, Defendants’ motion to modify the Discovery and Scheduling Order 8 (Docs. 55, 58) was granted. (Doc. 59.) The deadline for filing motions challenging the exhaustion 9 of administrative remedies was extended to October 5, 2021;5 all merits-based discovery was then 10 stayed pending the outcome of Defendants’ motion for summary judgment. (Id. at 2.) 11 On December 2, 2021, the Court granted Plaintiff’s motion for leave to conduct limited 12 discovery. (See Doc. 72 at 1.) The Court ruled, in pertinent part: “Plaintiff’s motion for leave to 13 conduct limited discovery (Doc. 69) is GRANTED. Between the date of this order and February 14 18, 2022, the parties may conduct discovery on the issue of whether the appeals office of 15 California State Prison, Corcoran, provided Plaintiff with notice(s) of the delay in processing his 16 administrative appeal (Log. No. CSPC-7-18-02210) at the second level of review.” (Id. at 3, 17 underline in original.) 18 During the period between December 2, 2021 and February 18, 2022, Plaintiff did not 19 seek any extension of time of the deadline for conducting limited discovery. 20 On February 18, 2022, Plaintiff filed a motion for a court order to access the law library, 21 referencing his January 7, 2022, transfer to the California Medical Facility and his subsequent 22 quarantine. (Doc. 79 at 1.) Plaintiff made no mention of a quarantine in effect that prohibited his 23 access prior to that date. One can readily discern from Plaintiff’s concluding sentence that he did 24 in fact have access to the law library before the move: “Perhaps the transfer from a NON-COVID 25 facility was apart of their plan to escape accountability.” (Id.) Therefore, at a minimum, Plaintiff 26

27 4 Defendants were granted an extension of time within which to file responses to Plaintiff’s written discovery requests. (Doc. 56.) 1 had between December 2, 2021, and January 7, 2022, within which to seek additional discovery. 2 Thus, to the degree Plaintiff contends good cause exists to reopen discovery because he was 3 quarantined and without access to the law library between November 15, 2021, and March 4, 4 2022, a review of the docket in this matter reveals Plaintiff’s contention lacks merit. 5 As to Plaintiff’s request for a “fee waiver,” as this Court has previously explained (see 6 Doc. 104 at 4 [Order dated 4/7/22]), pursuant to 28 U.S.C. § 1915(d), “[t]he officers of the court 7 shall issue and serve all process, and perform all duties in such cases. Witnesses shall attend as in 8 other cases, and the same remedies shall be available as are provided for by law in other cases.” 9 28 U.S.C. § 1915(d). This provision requires the United States Marshals Service (“USMS”) to 10 serve an indigent party’s subpoena duces tecum, including by personal service. See Modica v. 11 Russell, No. 2:15-cv-00057, 2015 WL 13653879, at *2 (E.D. Cal. Sept. 18, 2015) (a plaintiff 12 proceeding IFP is entitled to obtain personal service of an authorized subpoena by the USMS 13 because Fed. R. Civ. P. 45 requires a subpoena to be personally served); James v. Scribner, No. 14 1:04-CV-5878 LJO DLB P, 2008 WL 3318879, at *1 (E.D. Cal. Aug. 11, 2008) (“As plaintiff is 15 proceeding pro se and in forma pauperis, he is entitled to service of the subpoena by the United 16 States Marshal [pursuant to 28 U.S.C. § 1915(d) ]”). Briefly stated, service of a properly issued 17 subpoena duces tecum in a civil rights action brought by a pro se prisoner proceeding IFP will be 18 served at no expense to the prisoner by the USMS. However, if the subpoena involves the 19 testimony of a witness, rather than the production of documents, the prisoner plaintiff must pay 20 any associated witness fees and costs and provide those fees and costs prior to service. Witness 21 fees cannot be waived. Tedder v. Odel, 890 F.3d 210, 211-212 (9th Cir. 1989); see also Doc. 93 at 22 4 [Order dated 3/21/22].) 23 In any event, because Plaintiff’s request for a subpoena duces tecum will be denied, his 24 request is disregarded. 25 C. Request Filed April 18, 2022 (Doc. 112) 26 Finally, Plaintiff seeks to “open Discovery for the LIMITED PURPOSE of the 27 EVIDENTIARY HEARING.” (Doc. 112 at 1.) Plaintiff contends he could “submit to the deputy 1 2022, order. (Id.) Plaintiff contends the subpoena is “for the records only. No one would have to 2 travel to the hearing.” (Id.) Plaintiff appended a copy of the Order Denying Plaintiff’s Motion 3 Compel Discovery (Doc. 98) and Order Denying Miscellaneous Relief by Plaintiff (Doc. 99). 4 (Doc. 112 at 2-8.) 5 As noted above, Plaintiff was previously afforded an opportunity to conduct additional 6 discovery, limited to the issue associated with the evidentiary hearing. Plaintiff waited until the 7 final day of the limited discovery period–February 18, 2021–before moving for a court order for 8 access to the law library. (Doc. 79.) Plaintiff did not seek an extension of the deadline. 9 As discussed in this order, the materials Plaintiff seeks are also not relevant to the issues at 10 the evidentiary hearing. Additionally, defense counsel has indicated she will provide Plaintiff 11 with some of the information he seeks by way of informal discovery, assuming it exists and is not 12 otherwise privileged. (See Doc. 109 at 6, ¶ 2.) 13 III. CONCLUSION AND ORDER 14 For the reasons stated above, IT IS HEREBY ORDERED that: 15 1. Plaintiff’s request filed April 4, 2022 (Doc. 100) is DENIED; 16 2. Plaintiff’s request filed April 18, 2022 (Doc. 111) is DENIED; and 17 3. Plaintiff request filed April 18, 2022 (Doc. 112) is DENIED. 18 No further discovery concerning the subject of the exhaustion of administrative remedies 19 and whether the remedy was unavailable is necessary. The Court will not entertain any future 20 requests for “reopening” discovery or the issuance of a subpoena to produce documents as it has 21 addressed these matters several times and any further similar requests by Plaintiff would be futile 22 for the reasons explained above. 23 At the Evidentiary Hearing of August 2, 2022, Plaintiff will have an opportunity to 24 present evidence and will have an opportunity to cross-examine any witnesses called by 25 Defendants. Should Plaintiff elect to call D. Gore Jr. as a witness at the evidentiary hearing, it is 26 Plaintiff’s responsibility to present a properly prepared subpoena to the Court for consideration, 27 well in advance of August 2, 2022, that, if issued, would allow for service by the USMS. The 1 fees can be provided at the time of service. 2 The parties will continue to follow the deadlines identified in this Court’s April 18, 2022, 3 order concerning arrangements for Plaintiff’s participation via Zoom videoconference, meet and 4 confer efforts concerning documentary evidence, identifying documentary evidence, and 5 providing an exhibit list. (See Doc. 110 at 2.) 6 IT IS SO ORDERED. 7

8 Dated: May 11, 2022 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 9

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