(PC) Kahaku v. Wallace

• Court: District Court, E.D. California
• Decided: June 28, 2022
• Docket: 2:20-cv-01807
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL KAHAKU, No. 2:20-cv-1807 KJN P 12 Plaintiff, 13 v. ORDER 14 K. WALLACE, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se, in an action brought under 42 U.S.C. 18 § 1983. Plaintiff’s motion to compel production of documents, fully briefed, is now before the 19 court. As set forth below, the undersigned partially grants plaintiff’s motion, grants the motion to 20 modify the scheduling order, and denies plaintiff’s motion for a copy of his deposition transcript. 21 I. Plaintiff’s Complaint 22 Plaintiff alleges the following took place while he was housed at Mule Creek State Prison. 23 Defendants K. Wallace, A. Bustamante, T. Freitas, J. Vina, E. Speer, J. Canela, N. Hang, and G. 24 Ellis conspired to retaliate against plaintiff for filing lawsuits in which plaintiff received monetary 25 settlements by engaging in a retaliatory cell search on August 9, 2019, during which plaintiff’s 26 cell was trashed and his authorized radio was confiscated.1 Plaintiff was previously subjected to 27 1 Plaintiff also refers to the alleged planting of evidence and false reports. However, plaintiff 28 was not charged with possession of the syringe; only his cellmate was charged with a rules 1 retaliatory cell searches on February 17, 2018, and May 18, 2019, and he and his cellmate Oscar 2 Machado pursued civil rights litigation concerning both prior incidents.2 (ECF No. 8 at 6.) Such 3 retaliatory cell searches began after plaintiff received legal mail containing a settlement check 4 that should have been removed and deposited into plaintiff’s trust account, and plaintiff took the 5 check to defendant Bustamante on or about February 10, 2018, to have the check deposited.3 6 (ECF No. 8 at 5.) Plaintiff seeks, inter alia, money damages as well as injunctive relief 7 prohibiting defendants and their agents from retaliating and harassing plaintiff for his court 8 litigation. (ECF No. 8 at 16.) 9 II. Elements of Plaintiff’s Underlying Claims 10 “Prisoners have a First Amendment right to file grievances against prison officials and to 11 be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) 12 (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). A viable retaliation claim in the 13 prison context has five elements: “(1) An assertion that a state actor took some adverse action 14 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) 15 chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably 16 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 17 2005). 18 //// 19 violation. Therefore, plaintiff does not have standing to challenge either the alleged planting of 20 the syringe or the subsequent rules violation report issued solely to plaintiff’s cellmate Oscar Machado. 21 2 In Kahaku v. Bustamante, No. 2:18-cv-3001 (E.D. Cal.), plaintiff sued defendant Bustamante 22 and nonparty K. Young concerning the retaliatory cell search of February 17, 2018. Id. In 23 Kahaku v. Clays, No. 2:20-cv-0032 AC (E.D. Cal.), plaintiff sued nonparties Clay, Aguilar, and Winkler, as well as defendants Bustamante and Wallace concerning the retaliatory cell search of 24 May 18, 2019. Id. Both searches took place at Mule Creek State Prison, and both cases were settled by the parties in March of 2020. 25

3 The settlement proceeds were received from Kahaku v. Chamberlain, No. 2:16-cv-2395 DB 26 (E.D. Cal.). Although the incidents at issue in Chamberlain occurred at Mule Creek State Prison 27 and included allegations of retaliation, plaintiff did not allege retaliatory cell searches, and none of the defendants named in the instant action were named as defendants in No. 2:16-cv-2395 DB. 28 Id. (ECF No. 10.) 1 “To state a claim for conspiracy to violate one’s constitutional rights under section 1983, 2 the plaintiff must state specific acts to support the existence of the claimed conspiracy.” Burns v. 3 Cnty. of King, 883 F.2d 819, 821 (9th Cir. 1989). Such conspiracy claim requires proof of “‘an 4 agreement or meeting of the minds to violate constitutional rights,’” Franklin v. Fox, 312 F.3d 5 423, 441 (9th Cir. 2002) (quoting United Steel Workers of Am. v. Phelps Dodge Corp., 865 F.2d 6 1539, 1540-41 (9th Cir. 1989) (en banc) (citation omitted)), and an actual deprivation of 7 constitutional rights, Hart v. Parks, 450 F.3d 1059, 1071 (9th Cir. 2006) (quoting Woodrum v. 8 Woodward County, Oklahoma, 866 F.2d 1121, 1126 (9th Cir. 1989)). “To be liable, each 9 participant in the conspiracy need not know the exact details of the plan, but each participant must 10 share at least the common objective of the conspiracy.” Crowe v. Cnty. of San Diego, 608 F.3d 11 406, 440 (9th Cir. 2010), (quoting United Steel Workers, 865 F.2d at 1541). 12 III. Motion to Compel Discovery 13 A. Applicable Legal Standards Governing Discovery Disputes 14 Under Rule 37 of the Federal Rules of Civil Procedure, “a party seeking discovery may 15 move for an order compelling an answer, designation, production, or inspection.” Fed. R. Civ. P. 16 37(a)(3)(B). Such “motion may be made if: (i) a deponent fails to answer a question asked under 17 Rule 30 or 31; (ii) a corporation or other entity fails to make a designation under Rule 30(b)(6) or 18 31(a)(4); (iii) a party fails to answer an interrogatory submitted under Rule 33; or (iv) a party fails 19 to produce documents or fails to respond that inspection will be permitted -- or fails to permit 20 inspection -- as requested under Rule 34.” Fed. R. Civ. P. 37(a)(3)(B). An “evasive or 21 incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or 22 respond.” Fed. R. Civ. P. 37(a)(4). “District courts have ‘broad discretion to manage discovery 23 and to control the course of litigation under Federal Rule of Civil Procedure 16.’” Hunt v. Cnty. 24 of Orange, 672 F.3d 606, 616 (9th Cir. 2012) (quoting Avila v. Willits Envtl. Remediation Trust, 25 633 F.3d 828, 833 (9th Cir. 2011)). 26 Plaintiff bears the burden of informing the court (1) which discovery requests are the 27 subject of his motion to compel, (2) which of the responses are disputed, (3) why he believes the 28 response is deficient, (4) why defendants’ objections are not justified, and (5) why the 1 information he seeks through discovery is relevant to the prosecution of this action. McCoy v. 2 Ramirez, 2016 WL 3196738 at *1 (E.D. Cal. 2016); Ellis v. Cambra, 2008 WL 860523, at *4 3 (E.D. Cal. 2008) (“Plaintiff must inform the court which discovery requests are the subject of his 4 motion to compel, and, for each disputed response, inform the court why the information sought 5 is relevant and why defendant’s objections are not justified.”). However, the undersigned is 6 vested with broad discretion to manage discovery; despite the discovery procedures discussed 7 herein, plaintiff is entitled to leniency as a pro se litigant. Thus, to the extent possible, the 8 undersigned attempts to resolve plaintiff’s motion to compel on the merits. Hunt v. County of 9 Orange, 672 F.3d 606, 616 (9th Cir. 2012); Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). 10 The reach of Rule 34 of the Federal Rules of Civil Procedure, which governs requests for 11 production, “extends to all relevant documents, tangible things and entry upon designated land or 12 other property.” Clark v. Vega Wholesale Inc., 181 F.R.D. 470, 472-73 (D. Nev. 1998), citing 8A 13 C. Wright & A. Miller, Federal Practice and Procedure § 2206, at 381. “For each item or 14 category, the response must either state that inspection and related activities will be permitted as 15 requested or state with specificity the grounds for objecting to the request, including the reasons.” 16 Fed. R. Civ. P. 34(b)(2)(B). The responding party is responsible for all items in “the responding 17 party’s possession, custody, or control.” Fed. R. Civ. P. 34(a)(1). Actual possession, custody or 18 control is not required. Rather, “[a] party may be ordered to produce a document in the 19 possession of a non-party entity if that party has a legal right to obtain the document or has 20 control over the entity who is in possession of the document.” Soto v. City of Concord, 162 21 F.R.D. 603, 619 (N.D. Cal. 1995). “The party seeking production of the documents bears the 22 burden of proving that the documents are in the other party’s possession, custody, or control.” 23 Philippe Charriol Int’l Ltd. v. A’lor Int’l Ltd., 2016 WL 7634440, at *2 (S.D. Cal. Mar. 10, 2016) 24 (citing United States v. Int’l Union of Petroleum & Indus. Workers, AFL-CIO, 870 F.2d 1450, 25 1452 (9th Cir. 1989)). 26 The purpose of discovery is to “remove surprise from trial preparation so the parties can 27 obtain evidence necessary to evaluate and resolve their dispute.” U.S. ex rel. O’Connell v. 28 Chapman University, 245 F.R.D. 646, 648 (C.D. Cal. 2007) (quotation and citation omitted). 1 Rule 26(b)(1) of the Federal Rules of Civil Procedure offers guidance on the scope of discovery 2 permitted: 3 Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the 4 needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access 5 to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense 6 of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to 7 be discoverable. 8 Id. “Relevance for purposes of discovery is defined very broadly.” Garneau v. City of Seattle, 9 147 F.3d 802, 812 (9th Cir. 1998). “The party seeking to compel discovery has the burden of 10 establishing that its request satisfies the relevancy requirements of Rule 26(b)(1). Thereafter, the 11 party opposing discovery has the burden of showing that the discovery should be prohibited, and 12 the burden of clarifying, explaining or supporting its objections.” Bryant v. Ochoa, 2009 WL 13 1390794 at *1 (S.D. Cal. May 14, 2009) (internal citation omitted). 14 That said, “[t]he 2015 amendments to Rule 26(b)(1) emphasize the need to impose 15 ‘reasonable limits on discovery through increased reliance on the common-sense concept of 16 proportionality.’” Roberts v. Clark County Sch. Dist., 312 F.R.D. 594, 603 (D. Nev. 2016). The 17 fundamental principle of amended Rule 26(b)(1) is “that lawyers must size and shape their 18 discovery requests to the requisites of a case.” Id. Discovery and Rule 26 is intended to provide 19 parties with “efficient access to what is needed to prove a claim or defense, but eliminate 20 unnecessary or wasteful discovery.” Id. This requires active involvement of federal judges to 21 make decisions regarding the scope of discovery. Id. To the extent that the discovery sought is 22 “unreasonably cumulative or duplicative, or is obtainable from some other source that is more 23 convenient, less burdensome, or less expensive,” the court is directed to limit the scope of the 24 request. Fed. R. Civ. P. 26(b)(2). Limits should also be imposed where the burden or expense 25 outweighs the likely benefits. Id. How and when to so limit discovery, or to “issue an order to 26 protect a party or person from annoyance, embarrassment, oppression, or undue burden or 27 expense,” remains in the court’s discretion. Fed. R. Civ. P. 26(c)(1). 28 //// 1 Official Information Privilege 2 Federal common law recognizes a qualified privilege for official information. See Kerr v. 3 U.S. Dist. Court for the N. Dist. of Cal., 511 F.2d 192, 197-98 (9th Cir. 1975), aff’d 426 U.S. 394 4 (1976). To determine whether the official information privilege applies, the court must balance 5 the interests of the party seeking discovery and the interests of the government entity asserting the 6 privilege. Soto, 162 F.R.D. at 613. In the context of a civil rights action, “this balancing 7 approach is moderately ‘pre-weight[ed] in favor of disclosure.’” Bryant v. Armstrong, 285 8 F.R.D. 596, 605 (S.D. Cal. June 14, 2012) (quoting Kelly v. City of San Jose, 114 F.R.D. 653, 9 661 (N.D. Cal. 1987)). 10 This court’s duty to balance the parties’ interests in disclosure are triggered when the 11 party opposing disclosure makes a “substantial threshold showing.” Soto, 162 F.R.D. at 613 12 (quoting Kelly, 114 F.R.D. at 669). The party opposing disclosure “must submit a declaration or 13 affidavit from a responsible official with personal knowledge of the matters to be attested to in 14 the affidavit.” Soto, 162 F.R.D. at 613; see also Stevenson v. Blake, 2012 WL 3282892, at *2 15 (S.D. Cal. Aug. 10, 2012). The declaration must include: “(1) an affirmation that the agency has 16 maintained the confidentiality of the documents at issue; (2) a statement that the official has 17 personally reviewed the documents; (3) a specific identification of the governmental or privacy 18 interests that would be compromised by production; (4) a description of how disclosure subject to 19 a carefully crafted protective order would create a substantial risk of harm to these interests; and 20 (5) a projection of how much harm would be done to these interests if disclosure were made.” 21 Soto, 162 F.R.D. at 613 (citing Kelly, 114 F.R.D. at 670). “A strong affidavit would also 22 describe how the plaintiff could acquire information of equivalent value from other sources 23 without undue economic burden.” Soto, 162 F.R.D. at 613. 24 If the objecting party does not meet the requirements for invoking the privilege, a court 25 will typically overrule the privilege objection and order full disclosure. Bryant v. Armstrong, 285 26 F.R.D. at 605. “[I]f the party meets this burden, courts generally conduct an in camera review of 27 the material and balances each party’s interests.” Davis v. Schneider, 2020 WL 9074713 at *7 28 (C.D. Cal. Dec. 18, 2020) (citing Soto, 162 F.R.D. at 613; Kelly, 114 F.R.D. at 671). 1 Local Rule 251 2 As set forth in the court’s scheduling order, “unless otherwise ordered, Local Rule 251 3 shall not apply.” (ECF No. 22 at 5.) 4 B. Discussion 5 1. Failure to Meet and Confer 6 Defendants demonstrated their efforts to meet and confer, despite plaintiff’s bald claim 7 that “defendants failed to respond to [plaintiff’s] letter and an agreement could not be reached.” 8 (ECF No. 33 at 2.) In his reply, plaintiff failed to address defendants’ detailed efforts they took to 9 meet and confer, including discussing discovery at plaintiff’s deposition. (ECF No. 34 at 11-12.) 10 Rather, plaintiff appears to claim that he did not believe defendants would meet and confer 11 because “they never intended to produce any of the discovery demanded by plaintiff.” (ECF No. 12 35 at 2.) But such speculation is insufficient to support plaintiff’s failure to respond to 13 defendants’ efforts. More importantly, such speculation does not give plaintiff license to misstate 14 the facts in his motion. Plaintiff is cautioned that making untrue statements in court filings may 15 result in the imposition of sanctions. That said, while plaintiff failed to properly follow the meet 16 and confer process under Rule 37(a), defendants’ objections are overruled.4 The court relieved 17 the parties of the meet and confer requirement under Local Rule 251 because plaintiff is 18 incarcerated, making it difficult for the parties to engage in face to face conferences. 19 The court now turns to the merits of plaintiff’s motion. 20 2. California Senate Bill 1421 21 In response to defendants’ claim of privilege, plaintiff argues that SB 14215 entitles him to

22 4 Federal Rule of Civil Procedure 37(a) contains a requirement that the movant attempt to resolve 23 any disputes prior to seeking court intervention. However, while compliance with that rule has not been explicitly excused and the court encourages parties to attempt to resolve disputes prior to 24 seeking court intervention, because plaintiff is incarcerated and proceeding pro se, it is not enforced here and does not provide grounds for denying the motion. 25

5 California Senate Bill No. 1421 (“SB 1421”) “revised the state’s law on privilege and 26 confidentiality of peace officer personnel records,” Washington v. Hicks, 2021 WL 5967906 at 27 *6 (E.D. Cal. Dec. 16, 2021), by amending “California Penal Code Section 832.7 to allow disclosure under the California Public Records Act (CPRA) of records” relating to, among other 28 things, serious use of force or serious dishonesty. Ventura County Deputy Sheriffs’ Assn., v. 1 production of the requested documents. However, in section 1983 cases, federal law, not state 2 law, applies to resolve questions of privilege. Kerr, 511 F.2d at 197. “Questions of privilege that 3 arise in the course of the adjudication of federal rights are governed by the principles of common 4 law as they may be interpreted by the courts of the United States in light of reason and 5 experience.” U.S. v. Zolin, 491 U.S. 554, 562 (1989) (citing Fed. Rule Evid. 501). 6 Thus, because California law plays no part in construing the Federal Rules of Evidence, 7 there is no need to consider state law in determining privilege questions. Miller v. Panucci, 141 8 F.R.D. 292, 299 (C.D. Cal. Jan. 21, 1992). 9 3. California Penal Code Section 832.7 10 California Penal Code Section 832.7 is not applicable on its face (ECF No. 34 at 14), and 11 plaintiff fails to explain why such code should apply. Similarly, defendants, who objected on 12 such grounds in response to RPD No. 2 (ECF No. 34-2 at 7), do not explain why such code 13 should apply. In any event, “federal courts do not recognize section 832.7 as relevant in 14 evaluating discovery disputes in 42 U.S.C. § 1983 cases.” See Medina v. County of San Diego, 15 2014 WL 4793026, at *7 (S.D. Cal., Sept. 25, 2014). 16 4. Discovery Requests at Issue 17 Plaintiff propounded the same requests for production to all of the named defendants, with 18 the exception of defendant Wallace, to whom plaintiff propounded additional requests. 19 Specifically, plaintiff challenges defendants’ responses to requests for production numbers one 20 and two, which were identical as to all defendants, as well as defendant Wallace’s responses to 21 requests for production numbers three and five. (ECF No. 33 at 3-5.) The undersigned now 22 addresses the challenged responses. 23 RPD NO. 1: Produce any document logged within defendants’ personnel file for similar acts of retaliation, any notice of progressive 24 discipline, adverse personnel action, counseling, reprimand, remedial training for misconduct, for dishonesty, willful 25 disobedience, inexcusable neglect of duty, insubordination, and code of silence. 26 27 County of Ventura, 61 Cal. App. 5th 585, 589 (2021). Defendants provided a copy of SB 1421. 28 (ECF No. 34-2 at 113-19.) 1 RESPONSE TO RPD NO. 1: Defendant objects on the grounds that this request is compound, vague, and overbroad. Defendant objects 2 on the grounds that the request calls for speculation. Defendant objects on the grounds that this request seeks information that is not 3 relevant to any party’s claims or defenses, and therefore is not proportional to the needs to the case. Defendant objects on the 4 ground that the request assumes facts not in evidence. Defendant objects to this request on the grounds that it seeks information that is 5 part of Defendant’s personnel information and is therefore protected from disclosure by the official information privilege, constitutional 6 right to privacy, and various state and federal statutes governing the confidentiality of peace officer records, California Government Code 7 section 6254, and California Evidence Code sections 1040, 1041, and 1043. See Declaration of D. Santos asserting official-information 8 privilege. 9 (ECF No. 34-2 at 5-6.) 10 The Parties’ Arguments 11 Plaintiff contends that RPD No. 1 would lead to the discovery of admissible evidence. 12 (ECF No. 33 at 8.) He argues that supervisory staff allow defendants to act with impunity to 13 retaliate against inmates who file civil suits, and plaintiff’s claims are not limited to the August 9 14 cell search; rather, his cell has been “trashed” four times. (Id.) Plaintiff asks that if he cannot 15 review defendants’ personnel files, the court should review them in camera. Further, plaintiff 16 contended defendants’ response is deficient because defendants’ personnel files are relevant 17 under Federal Rules of Evidence 404(b) in that they may demonstrate intent, motive and plan to 18 subvert prison procedures to retaliate against inmates in violation of their constitutional rights to 19 file grievances against staff for misconduct, citing multiple Ninth Circuit cases. (ECF No. 33 at 20 96.) Plaintiff argues that similar acts are relevant and admissible regardless of whether they 21 occurred before or after the incident at issue, may be admitted to prove a correctional officer’s 22 intent where, as here, they deny violating an inmate’s constitutional rights, and may also be 23 admissible to prove a correctional officer’s pattern or plan to intentionally abuse inmates under 24 the guise of carrying out prison procedures (as alleged here). Finally, plaintiff argues that the 25 circumstances of defendants’ prior retaliatory acts are admissible for impeachment purposes. Fed 26 R. Evid. 608(b). (ECF No. 33 at 97.) Plaintiff contends he is also entitled to discover 27 information about complaints against the defendants because they are relevant to punitive 28 damages. (ECF No. 33 at 97.) Plaintiff also objected that he had not yet received the declaration 1 of D. Santos asserting the official-information privilege.6 2 Defendants counter that plaintiff failed to show why the documents are relevant, failed to 3 identify any specific objection or privilege asserted that were problematic, and failed to 4 demonstrate defendants’ objections or asserted privileges were unjustified. As to RPD No. 1, 5 defendants disagree with plaintiff’s claim that such documents demonstrate defendants’ intent and 6 motive, arguing that plaintiff appears to be seeking collateral and not relevant propensity 7 evidence of defendants’ character which is generally not admissible in civil rights actions. (ECF 8 No. 34 at 13.) Defendants contend that plaintiff’s reliance on the cited Ninth Circuit cases is 9 misplaced because neither case is similar factually or as to causes of action, and do not involve 10 inmate claims or evidence of CDCR personnel files. (ECF No. 34 at 13.) In addition, the cases 11 that do involve correctional officers are out of circuit district court cases from Georgia and New 12 York, neither of which involves retaliation, similar allegations or privileges. (ECF No. 34 at 13.) 13 Defendants point out that plaintiff failed to respond to any of the other asserted objections 14 or the assertion of the official information privilege. As to confidentiality, plaintiff relies on 15 California Penal Code Section 832.7 which defendants contend is inapplicable on its face. (ECF 16 No. 34 at 14.) 17 In reply, plaintiff argues that defendants’ personnel files are relevant to demonstrate 18 intent, motive and plan because defendants subverted prison procedures to retaliate against 19 plaintiff and other inmates, citing inmate grievances filed by inmates Ruben Garcia and Lenis 20 Garcia. (ECF No. 35 at 2.) Plaintiff argues that such files may also disclose witnesses who 21 would testify as to the defendants’ misconduct. 22 Further, plaintiff claims that defendants’ reliance on the official information privilege is 23 improper to hide their misconduct and deny plaintiff evidence to substantiate his claims. (ECF 24 No. 35 at 3.) He contends that defendants have a lengthy history of misconduct against the 25

6 In the January 11, 2022 letter from defense counsel to plaintiff, counsel noted that per the 26 included proof of service, the declaration was mailed to plaintiff on November 15, 2021, but a 27 courtesy copy of the declaration was provided with defense counsel’s letter. (ECF No. 34-2 at 128.) Because plaintiff was provided another copy of the declaration, plaintiff’s subsequent 28 objections concerning such nonreceipt are omitted herein. 1 inmate population at Mule Creek State Prison where they engage in misconduct with impunity. 2 As to the Santos declaration, plaintiff contends that defendants’ claim of “doom and gloom are 3 unsupported.” (ECF No. 35 at 3.) Plaintiff needs the records, which are both material and 4 relevant, to support his case before the jury, and argues he has made more than a mere prima facie 5 showing of his entitlement to this important information. He contends that if defendants’ concern 6 with confidentiality and the threat posed by disclosure are problematic, the court should 7 reconsider plaintiff’s request for appointment of counsel. 8 In addition, plaintiff’s complaint alleges that the following defendants have significant 9 histories of misconduct, including retaliatory conduct, toward the inmate population at MCSP: 10 Wallace and Canela. Plaintiff alleges the following defendants are subject to several internal 11 appeals/complaints by inmates at MCSP: Wallace, Bustamante, Freitas, Vina, and Canela. 12 Plaintiff also alleges the following defendants made verbal remarks suggesting a retaliatory 13 motive for the cell searches: Bustamante and Wallace. 14 Discussion 15 Overbreadth 16 The undersigned agrees that plaintiff’s RPD No. 1 is overbroad in that it is not limited in 17 time or in the scope of the documents sought. That said, plaintiff is entitled to certain discovery 18 materials related to his retaliatory cell search claims. “Other courts have found that prior 19 complaints of misconduct made against a defendant are discoverable when sufficiently similar to 20 the claims brought in the instant suit.” Henderson v. Lizzaraga, 2020 WL 6820775 (E.D. Cal. 21 Nov. 20, 2020), citing Centeno v. City of Fresno, 2016 WL 7491634, at *7 (E.D. Cal. Dec. 29, 22 2016) (citation omitted) (narrowing Henderson’s request for production because the action did 23 not proceed on any claims of excessive force). Therefore, if narrowly defined, certain documents 24 contained in defendants’ personnel files may be relevant to plaintiff’s claims in this action. See 25 Zackery v. Stockton Police Dept., 2007 WL 1655634, at *2 (in excessive force cases, the officers’ 26 “personnel file information has been found to be quite relevant because they may reveal the 27 defendant officers’ credibility, motive and patterns of behavior”); see Harris v. German, 2019 WL 28 4640503 at *8 (E.D. Cal. Sept. 24, 2019) (citations omitted) (“In an excessive force case such as 1 this, the relevance and discoverability of officers’ disciplinary records, including unfounded 2 complaints and allegations of misconduct, are widely recognized.”). While defendants argue 3 plaintiff seeks inadmissible character evidence by RPD No. 1, plaintiff contends the documents 4 are admissible to prove intent, motive, pattern or plan; in any event, the ultimate admissibility of 5 evidence is not pertinent under Rule 26(b)(1). 6 Thus, plaintiff’s RPD No. 1 is hereby narrowed to all documents in the personnel files of 7 each defendant, including notices of progressive discipline, adverse personnel action, counseling, 8 reprimands, and remedial training, related to inmate complaints against any defendant alleging 9 retaliatory cell searches due to the inmate’s litigation activity. Further, the time frame for 10 responses to RPD No. 1 is limited to February 17, 2017, one year prior to February 17, 2018, the 11 date of the first alleged retaliatory cell search, through September 8, 2021, one year after plaintiff 12 filed the instant action. 13 Official Information Privilege 14 In support of their assertion that defendants’ personnel files are privileged, defendants 15 provided a privilege log and the declaration of D. Santos, Litigation Coordinator at Mule Creek 16 State Prison. (ECF Nos. 34-2 at 57-59 (privilege log); 61-69 (decl.).) In the declaration, Santos 17 states that he has reviewed or is familiar with the documents and information that may be 18 responsive to plaintiff’s document requests which include confidential memorandums contained 19 in defendants’ personnel files. (ECF No. 34-2 at 64.) Santos states that such “documents contain 20 information . . . classified as confidential under Code of Regulations, Title 15, Section 3321(a)(1) 21 and (2), and would endanger the safety of persons within the prison and jeopardize the security of 22 the institution if disclosed.” (ECF No. 34-2 at 65.) With respect to plaintiff’s request for 23 documents from defendants’ personnel files, Santos declares that: 24 • “disclosure of personnel material reveals investigative-technique information,” and 25 providing such information to an inmate would enable him to devise a plan to falsify 26 misconduct accusations; 27 • CDCR considers personnel documents to be confidential, which allows CDCR to freely 28 evaluate and investigate without apprehension that such internal checks and balances 1 might be used against the CDCR and its personnel, promoting honesty and cooperation 2 from witnesses which assists the CDCR in correcting personnel problems and 3 maintaining the institution’s safety and security; 4 • disclosure of staff personnel information is strictly prohibited to protect staff and their 5 families from assault, harassment, retaliation or other harm; disclosure could impair staff 6 authority and effectiveness, undermine staff’s ability to control violent disturbances 7 effectively and with minimal force, and could result in further investigations by staff, 8 disrupting normal prison activity and redirecting staff, undermine staff’s ability to do 9 their job, and could put plaintiff at risk from other inmates who may use force to obtain 10 such confidential information, endangering the safety and security of the prison; and 11 • responsive personnel material may contain information about inmates other than plaintiff, 12 which could allow the other inmate to be targeted or allow plaintiff to be targeted for 13 harassment, assaults or death, which all jeopardize the safety and security of the staff and 14 the institution, and violates California Code of Regulations, title 15, section 3370(b) (“no 15 inmate . . . shall have access to another’s case records file, unit health records, or 16 component thereof.”). 17 Santos declares that the risk is enhanced due to plaintiff’s case factors, which include a history of 18 committing violent crimes, including attempted murder committed after he was incarcerated. 19 Indeed, since his 1999 commitment offense of kidnapping, plaintiff has sustained multiple serious 20 rules violation reports and other lesser rules violation reports, is committed to the highest security 21 level facility (IV) in California, and is suspected of being a gang member. (ECF No. 34-2 at 68.) 22 If plaintiff or another inmate obtains information as to investigative practices, he could 23 manipulate situations and affect operations; the threat posed by disclosure is substantial. (Id. at 24 69.) 25 Finally, Santos declares that there is no way for a protective order to guarantee that the 26 information will not make its way into the inmate population, where the potential harm -- 27 “assault, harassment, and retaliation on staff and witnesses, and institutional disruption -- is too 28 severe to risk.” (ECF No. 34-2 at 69.) The threat of civil or criminal contempt or sanctions are 1 unlikely to deter an inmate who has demonstrated a proclivity to violate the law. A protective 2 order is inadequate to ensure the information will not be deliberately or inadvertently disclosed to 3 inmates who will use it for an improper purpose. 4 In addition, in the alternative, defendants argue that the court first conduct an in camera 5 review of any documents deemed responsive and provide defendants an opportunity to submit 6 additional supporting material for the privilege assertion, reiterating their position that the 7 benefits of disclosure to plaintiff do not outweigh the purposes of maintaining security and 8 confidentiality within the facility. (ECF No. 34 at 17.) In the event the undersigned overrules 9 defendants’ assertion of privilege and finds disclosure is warranted, defendants seek a protective 10 order with proper redactions, and ask that the protective order provide that plaintiff may only 11 review the documents and not be permitted to retain the documents in his cell to prevent 12 dissemination of confidential documents. (Id.) 13 Discussion 14 Initially, the undersigned observes that it is unclear how the plaintiff could otherwise 15 acquire information of equivalent value from other sources absent substantial expense. As to the 16 Santos declaration, Santos confirmed he “reviewed” or was “familiar” with the requested 17 documents, including personnel files, meeting the second element, and identified interests 18 defendants believe would be compromised by production. The undersigned agrees that disclosure 19 of investigative techniques poses a substantial risk. Defendants also raise some legitimate 20 concerns about releasing personnel information into a prison population. But it is unclear how 21 the disclosure of discipline or reprimands resulting from complaints of retaliatory cell searches 22 would pose such a substantial risk. Accordingly, defendants are provided an opportunity to 23 submit additional supporting material for their privilege assertions which the court will take into 24 consideration in balancing plaintiff’s need for such documents against the defendants’ need to 25 maintain security and confidentiality within the facility, and taking into account plaintiff’s 26 personal case factors. Defendants shall produce any responsive documents to the court for in 27 camera review, and provide another set of responsive documents with proposed redactions, and 28 are granted leave to file a supplemental brief, and, if appropriate, a revised privilege log or its 1 equivalent pursuant to Federal Rule of Civil Procedure 26(b)(5). 2 RPD NO. 2: Produce all inmate appeals kept within the Inmate Appeals Tracking System (IATS) and third level appeals at 3 Sacramento against defendant by inmates at MCSP for similar acts claimed in Plaintiff’s lawsuit, specifically retaliation and filing false 4 reports (e.g. Rule Violation Reports, Criminal Reports, etc.). 5 RESPONSE TO RPD NO. 2: Defendant objects to this request on the grounds that it is vague, ambiguous, overbroad in time and 6 subject matter, and compound. Defendant objects to this request on the grounds that it seeks information that is not relevant to any party’s 7 claims or defense, and therefore it is not proportional to the needs of the case. Defendant objects to the request on the grounds that of its 8 overbreadth and unlimited scope, in that it seeks “all inmate appeals.” Defendant objects to the request on the grounds of the 9 request’s overbreadth and unlimited scope, in that it may apply to a wide variety of situations or conduct that have no bearing on this 10 lawsuit. Due to subject matter overbreadth, documents deemed confidential may be responsive, the disclosure of which would create 11 a hazard to the safety and security of the institution, prison officials, and inmates, and violate privacy rights afforded to prison officials 12 and inmates. Defendant objects to this request on the grounds that is seeks documents that have no relation to the claims in this case, and 13 retrieval of such documents would be unduly burdensome. Defendant objects to the request to the extent it seeks documents 14 protected under state and federal law, including the official- information privilege and Penal Code sections 832.7 and 832.8. See 15 Declaration of D. Santos asserting official-information privilege. Defendant objects to the request to the extent it seeks documents 16 protected by the attorney-client privilege or work-product doctrine. Defendant objects on the basis that the request assumes facts not in 17 evidence. 18 (ECF No. 34-2 at 6-7.) 19 The Parties’ Arguments 20 Plaintiff argues that RPD No. 2 is reasonably calculated to lead to the discovery of 21 admissible evidence because several complaints/grievances have been filed against the defendants 22 alleging misconduct against inmates. (ECF No. 33 at 8.) Plaintiff asks that if he cannot review 23 such appeals, the court should review them in camera. (ECF No. 33 at 8, 98.) Plaintiff also 24 argues that the appeals are relevant to punitive damages. (ECF No. 33 at 99.) 25 Defendants counter plaintiff’s claim that such documents demonstrate defendants’ intent 26 and motive, arguing that plaintiff appears to be seeking collateral and not relevant propensity 27 evidence of defendants’ character which is generally not admissible in civil rights actions. (ECF 28 No. 34 at 13.) Defendants contend that plaintiff’s reliance on the cited Ninth Circuit cases is 1 misplaced because neither case is similar factually or as to causes of action, and do not involve 2 inmate claims or evidence of CDCR personnel files. (ECF No. 34 at 13.) They argue that the 3 two cases that do involve correctional officers are out of circuit district court cases from Georgia 4 and New York, neither of which involves retaliation, similar allegations or privileges. (ECF No. 5 34 at 13.) 6 Defendants point out that plaintiff fails to respond to any of the other asserted objections 7 or the assertion of the official information privilege. As to confidentiality, plaintiff relies on 8 California Penal Code Section 832.7 which is inapplicable on its face. (ECF No. 34 at 14.) 9 Defendants raise the same alternative arguments set forth above concerning an in camera 10 review and protective order. 11 In reply, plaintiff reiterates that the grievances sought are relevant to demonstrate intent, 12 motive and plan to show defendants subverted prison procedures to retaliate with impunity 13 against plaintiff and other inmates. Plaintiff claims the following inmate appeals MCSP-A-19- 14 01172; MCSP-A-19-00817; MCSP-A-19-00041; MCSP-A-18-05098, filed by inmate Ruben 15 Garcia, CDCR No. J73373, and Lenis Garcia, CDCR No. J12590, alleged that defendant Wallace 16 conducted retaliatory cell searches for filing grievances against him for misconduct, including 17 breaking prescription glasses. Plaintiff states that supervisors substantiated Ruben Garcia’s 18 retaliation claims against defendant Wallace, which Garcia is pursuing in Case No. 2:20-cv-1453 19 DMC (E.D. Cal.). (ECF No. 35 at 2-3.) Also, plaintiff argues that such appeals may also disclose 20 witnesses who would testify as to the defendants’ misconduct. 21 Discussion 22 As discussed above, the scope of discovery is broad, and the admissibility of evidence is 23 not determinative to the issue of its discoverability. See Fed. R. Civ. P. 26(b) (“[i]nformation 24 within this scope of discovery need not be admissible in evidence to be discoverable.”) The 25 undersigned finds that plaintiff’s request for documents involving false reports are not 26 discoverable as no rules violation report was issued against plaintiff based on the alleged planting 27 of evidence. See note 1, infra. On the other hand, documents within IATS regarding appeals 28 made by nonparty inmates against defendants involving similar acts claimed in plaintiff’s lawsuit, 1 specifically retaliatory cell searches based on the nonparty inmate’s litigation activity, appears to 2 be potentially relevant to plaintiff’s claims. See Tate v. Andres, 2020 WL 1984151 at *3 (E.D. 3 Cal. April 27, 2020) (“Although instances of misconduct related to other inmates would not 4 directly prove that defendant retaliated against plaintiff, used excessive force, or was deliberately 5 indifferent to his medical needs, sufficient similarities in complaints could potentially 6 demonstrate a pattern of conduct by defendant that would speak to his intent, which is a necessary 7 component to each of the claims against him.”). 8 Defendants’ objection that the request is overbroad in time and subject matter is sustained. 9 That said, the request can be narrowly tailored to all appeals in IATS submitted by nonparty 10 inmates claiming retaliatory cell searches based on the inmate’s litigation activity conducted by 11 any of the defendants herein, and can also be limited in time. See Taylor v. O’Hanneson, 2014 12 WL 2696585, at *5 (E.D. Cal. June 13, 2014) (although prisoner’s motion to compel grievances 13 pertaining to “mistreatment of prisoners by defendants” was denied as overbroad, prisoner 14 granted leave to properly phrase a request specifically tailored to his claim of excessive force, 15 adding that legitimate privacy interests must be weighed against other competing interests.) 16 “Other complaints about conduct similar to that alleged in the complaint may lead to the 17 discovery of admissible evidence that could bear on plaintiff’s claims, regardless of when the 18 complaints were made.” Garcia v. Cluck, 2013 WL 6441474, at *2 (S.D. Cal. Dec. 9, 2013) 19 (finding complaints by inmates about conduct similar to the plaintiff’s allegations of retaliation 20 are relevant, and directing production of same with redactions based on potential privacy 21 concerns); see Houston v. Eldridge, 2018 WL 1014459, at *5 (E.D. Cal. Feb. 22, 2018) (finding 22 pro se prisoner entitled to discovery of grievances filed by other inmates against defendants for 23 similar claims, despite relevancy objection). In the interest of proportionality, the time frame for 24 responding to RPD No. 2 should be limited to February 17, 2017, one year prior to February 17, 25 2018, the date of the first alleged retaliatory cell search, through September 8, 2021, one year 26 after plaintiff filed the instant action. Such production should include the administrative appeals 27 identified by plaintiff in his complaint as alleging defendant Wallace conducted retaliatory cell 28 searches based on the inmates’ exercise of their First Amendment rights: Log Nos. MCSP-A-19- 1 01172; MCSP-A-19-00817; MCSP-A-19-00041; MCSP-A-18-05098, filed by inmate Ruben 2 Garcia, CDCR No. J73373, and Log Nos. MCSP-A-19-00039 and MCSP-A-118-05053, filed by 3 Lenin Garcia, CDCR No. J12590.7 (ECF No. 8 at 12; see also ECF No. 35 at 2-3.) Such 4 production should also include grievances filed by Oscar Machado alleging retaliatory cell 5 searches by defendants Bustamante or Wallace: Log Nos. MCSP-A-19-02006 and MCSP-A-19- 6 03375. (ECF No. 8 at 12; ECF No. 35 at 3.) 7 That said, the production of such nonparty inmate appeals implicates third party privacy 8 interests. It is difficult to balance the privacy interests at issue with plaintiff’s need for disclosure 9 because it is unclear whether any responsive documents exist as to any defendant except 10 defendants Wallace and Bustamante, further no specific document was identified in the privilege 11 log,8 and the undersigned has not had an opportunity to inspect any responsive document in 12 camera. See Sinegal v. Duarte, 2014 WL 988572 (S.D. Cal. Mar. 10, 2014) (conducting in 13 camera review to evaluate privacy interests and assertion of official information privilege). Thus, 14 to the extent additional nonparty inmate appeals challenging retaliatory cell searches by any 15 defendant exist responsive to RPD No. 2, defendants shall lodge with the court copies of such 16 documents (as well as the appeals identified by log number above) from IATS for an in camera 17 review. As set forth above, the time frame for responses to RPD No. 1 is limited to February 17, 18 2017, through September 8, 2021. Defendants shall produce to the court for in camera review a 19 set of responsive documents, and another set of responsive documents with proposed redactions. 20 7 In his complaint, plaintiff also claims defendant Speer retaliated against inmate Johnson by 21 conducting a retaliatory cell search. (ECF No. 8 at 13.) (citing Johnson v. Clays, 2015 U.S. Dist. LEXIS 122323 (E.D. Cal. Sept. 11, 2015). In Johnson, the prisoner challenged cell searches that 22 took place in 2010, alleging retaliation. Id. The undersigned finds Johnson’s complaint is not 23 relevant because the searches are too remote in time, and defendants were granted summary judgment in that case. Specifically, the court found that Johnson failed to adduce evidence that 24 defendant Speers was aware that Johnson had engaged in protected conduct. Id. at *15. Plaintiff’s reference to grievances filed by Eladio Rodriguez and Juanita Machado are not 25 relevant because they did not involve alleged retaliatory cell searches. (ECF No. 8 at 13, 14.)

26 8 Indeed, defendants refer to appeals by non-party inmates kept within IATS, but do not address 27 plaintiff’s request for third level appeals and given plaintiff’s separate reference to such third level appeals, it is unclear whether such appeals are also contained in IATS. Defendants should 28 address this issue in their supplemental brief. 1 Defendants are granted leave to file a supplemental brief, and, if appropriate, a revised privilege 2 log or its equivalent pursuant to Federal Rule of Civil Procedure 26(b)(5). Following the in 3 camera review, the court will address the privacy interests as well as defendants’ assertion of the 4 official information privilege. 5 Defendant Wallace 6 The following two requests were directed solely to defendant Wallace. 7 RPD NO. 3: Produce anonymous note reflecting Plaintiff had a weapon within assigned housing on August 9, 2019. 8 RESPONSE TO RPD NO. 3: Defendant objects on the grounds that 9 the request speculative and assumes facts not in evidence. Defendant objects to this request on the grounds that it seeks information that is 10 not relevant to any party’s claims or defense, and therefore it is not proportional to the needs of the case. Due to the subject matter of 11 the request, documents deemed confidential may be responsive, the disclosure of which would create a hazard to the safety and security 12 of the institution, prison officials, and inmates, and violate privacy rights afforded to prison officials and inmates, and violate privacy 13 rights afforded to prison officials and inmates. See Declaration of D. Santos asserting official-information privilege. 14 15 (ECF No. 34-2 at 7.) 16 RPD NO. 5: Produce all documents supporting Sergeant G. Junes’ allegations Plaintiff had a weapon within assigned housing on 17 August 9, 2019. 18 RESPONSE TO RPD NO. 5: Defendant objects on the grounds that the request is speculative and assumes facts not in evidence. 19 Defendant objects to this request on the grounds that it seeks information that is not relevant to any party’s claims or defense, and 20 therefore it is not proportional to the needs of the case. Defendant objects on the ground that Plaintiff assumes that a non-party has 21 made such “allegations.” Due to the subject matter of the request, documents deemed confidential may be responsive, the disclosure of 22 which would create a hazard to the safety and security of the institution, prison officials, and inmates, and violate privacy rights 23 afforded to prison officials and inmates, and violate privacy rights afforded to prison officials and inmates. See Declaration of D. 24 Santos asserting official-information privilege. 25 (ECF No. 34-2 at 8.) 26 The Parties’ Arguments 27 Plaintiff states that during a hearing for a grievance submitted by plaintiff’s cellmate, 28 Oscar Machado, log no. MCSP-A-19-02006, Sgt. G. Junes stated that the August 9 cell search 1 occurred because of an anonymous note received by staff claiming that plaintiff and his cellmate 2 had weapons in assigned housing. (ECF No. 33 at 9.) The note has not been produced. (Id.) 3 Plaintiff claims the anonymous note is “very relevant” because defendants used the anonymous 4 note as a pretext to enter plaintiff’s cell and conduct a search to deflect plaintiff’s contentions that 5 the cell search was retaliatory in nature. (ECF No. 33 at 99.) Because the note is “anonymous,” 6 plaintiff argues that confidentiality cannot apply. Plaintiff argues that an objection that a 7 discovery request is overly broad, burdensome, oppressive, and irrelevant is not an adequate 8 objection; the party resisting discovery must show specifically how “each” discovery request is 9 not relevant or how each question is overly broad, burdensome, or oppressive. (Id.) 10 Defendants argue that plaintiff provided no specific argument as to either request, and 11 failed to discuss why documents supporting an allegation by a non-party are material to this 12 action. In addition, plaintiff again failed to discuss why the official information privilege or 13 assertion of third-party confidentiality do not apply. 14 In reply, plaintiff argues that it is hard to understand defendants’ claim of confidentiality 15 based on an anonymous note where the author is unknown, and there is no provision in Title 15 16 providing for the confidentiality of anonymous information. (ECF No. 35 at 3.) Plaintiff also 17 intends to call Oscar Machado as a witness. 18 Discussion 19 The undersigned finds plaintiff’s argument persuasive. If defendants relied on an 20 anonymous note to conduct the search at issue herein, then plaintiff is entitled to see the note 21 based on the last element of the retaliation claim: whether or not the cell search advanced a 22 legitimate correctional goal. It is difficult to imagine how security would be implicated by the 23 disclosure of an anonymous note. However, in light of defendants’ request that the court first 24 review such documents in camera prior to ordering disclosure, defendants shall submit the 25 anonymous note to the court for in camera review. If defendants propose any redaction of the 26 note, defendants shall provide a redacted version as well as the unredacted note, and address such 27 redaction in their supplemental brief. If no such note exists, defendants shall provide the 28 appropriate response confirming the same. 1 Similarly, if there are documents supporting Sgt. Junes’ allegations that plaintiff had 2 contraband in plaintiff’s cell on August 9, 2019, such documents would also be relevant to the 3 question of whether or not the cell search advanced a legitimate correctional goal. It appears 4 unlikely that third party privacy issues are implicated because plaintiff was celled with Machado 5 and is already aware of what happened to Machado after the cell search. However, security 6 concerns may be implicated by such documents if they divulge investigative techniques, 7 confidential informants, etc. Therefore, in response to RPD No. 5, defendants shall produce such 8 documents, if they exist, for in camera review. If no such documents exist, defendants shall so 9 respond. 10 IV. Motion for Counsel 11 Plaintiff requests that the court appoint counsel. District courts lack authority to require 12 counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. 13 Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney 14 to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 15 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 16 When determining whether “exceptional circumstances” exist, the court must consider plaintiff’s 17 likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro 18 se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 19 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The 20 burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances 21 common to most prisoners, such as lack of legal education and limited law library access, do not 22 establish exceptional circumstances that warrant a request for voluntary assistance of counsel. 23 Having considered the factors under Palmer, the court finds that plaintiff failed to meet his 24 burden of demonstrating exceptional circumstances warranting the appointment of counsel at this 25 time. 26 V. Motion to Modify Scheduling Order 27 Defendants seek an extension of the dispositive motions deadline in light of the pending 28 motion to compel discovery, and because additional time is needed to investigate whether there is 1 a sufficient basis for filing a dispositive motion, including to conduct a site visit of Mule Creek 2 State Prison, and to conduct interviews of the eight defendants. At present, site visits at Mule 3 Creek State Prison have been delayed due to staffing shortages. 4 Plaintiff did not oppose the motion. 5 Governing Standards 6 “The district court is given broad discretion in supervising the pretrial phase of litigation.” 7 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) (citation and internal 8 quotation marks omitted). Rule 16(b) provides that “[a] schedule may be modified only for good 9 cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). “The schedule may be modified 10 ‘if it cannot reasonably be met despite the diligence of the party seeking the extension.’” 11 Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (quoting 12 Johnson, 975 F.2d at 607). 13 Discussion 14 In light of this order partially granting plaintiff’s motion to compel discovery and 15 providing for an in camera review, as well as the difficulties counsel for defendants has 16 encountered in scheduling a site visit at Mule Creek State Prison, as well as conducting multiple 17 interviews and completing investigation, the undersigned finds good cause to modify the 18 scheduling order. Moreover, if plaintiff is provided additional discovery following the in camera 19 review, he will need additional time to review any documents provided. 20 Good cause appearing, discovery is extended to September 30, 2022, for the sole purpose 21 of resolving the discovery requests at issue herein; the dispositive motions deadline is extended to 22 November 30, 2022; in all other respects the terms of the March 15, 2021 discovery and 23 scheduling order remain in full force and effect. 24 VI. Request for Deposition Transcript 25 Plaintiff requests that defendants provide plaintiff with a copy of his deposition transcript. 26 Rule 30(f)(3) of the Federal Rules of Civil Procedure provides that: “When paid 27 reasonable charges, the officer [court reporter] must furnish a copy of the transcript or recording 28 to any party or the deponent.” Id. 1 Plaintiff contends that he is “entitled to a copy of the deposition transcript.” (ECF No. 38 2 at 2.) Plaintiff does not indicate why he thinks he is so entitled, but to the extent plaintiff believes 3 that because he is proceeding in forma pauperis, he would be provided a deposition transcript 4 without charge, plaintiff is mistaken. 5 Nothing in the Federal Rules entitles plaintiff to a free copy of his deposition transcript. If 6 plaintiff wishes to obtain a copy for his own records, he must pay for it, pursuant to Rule 30(f)(3) 7 of the Federal Rules of Civil Procedure. Moreover, there is no provision under the Federal Rules 8 or the Local Rules for free copies of deposition transcripts. Finally, the expenditure of public 9 funds on behalf of an indigent litigant is proper only when authorized by Congress, and the in 10 forma pauperis statute does not authorize the expenditure of public funds for the purpose sought 11 by plaintiff in the instant motion. See Tedder v. Odel, 890 F.2d 210 (9th Cir. 1989) (citations 12 omitted). Therefore, plaintiff’s request for a copy of his deposition transcript at the expense of 13 defendants or at government expense is denied. However, if defendants rely on any portion of 14 plaintiff’s deposition transcript in support of a dispositive motion, defendants are required to 15 provide plaintiff with copies of pertinent pages of the deposition transcript. 16 VII. Settlement Conference 17 On January 5, 2021, defendants’ request to opt out of the initial ADR settlement 18 conference was granted. (ECF No. 19.) However, on January 16, 2022, plaintiff wrote a letter to 19 defense counsel offering to settle the case. (ECF No. 34-2 at 147.) If the parties now believe that 20 a settlement conference would be fruitful, the parties may request one by completing the 21 appended election form. If each party waives disqualification, the undersigned will hold the 22 settlement conference, or the parties may request that the settlement conference be assigned to a 23 different judge for settlement conference. If the parties agree that a settlement conference is 24 warranted, after the election form is completed and signed by the parties, the assigned Deputy 25 Attorney General shall contact the Courtroom Deputy, Alexandra Waldrop, at (916) 930-4187, to 26 schedule the settlement conference. 27 Accordingly, IT IS HEREBY ORDERED that: 28 1. Plaintiff’s motion to compel (ECF No. 33) is partially granted. Within sixty days from 1 the date of this order, in response to: 2 (a) RPD No. 1, from each defendant’s personnel files, defendants shall produce to 3 the court for in camera review all responsive documents as described above, from February 17, 4 2017, through September 8, 2021, related to whether such defendant engaged in retaliatory cell 5 searches based on the complaining nonparty inmate’s litigation activity. 6 (b) RPD No. 2, defendants shall produce to the court for in camera review all 7 nonparty inmate appeals in IATS for Mule Creek State Prison alleging a retaliatory cell search by 8 any of the defendants based on the nonparty inmate’s litigation activity from February 17, 2017, 9 through September 8, 2021. 10 (c) RPD No. 3, defendant Wallace shall produce to the court for in camera review 11 the anonymous note referred to by Sgt. G. Junes in connection with the grievance submitted by 12 Oscar Machado, log no. MCSP-A-19-02006. If no such note exists, defendant Wallace shall so 13 state. 14 (d) RPD No. 5, defendant Wallace shall produce such document(s), if any exist, 15 for in camera review. If no such documents exist, defendant Wallace shall so state. 16 Where no responsive document exists, defendants shall serve plaintiff with a supplemental 17 response and file a certification with the court. 18 Defendants are granted leave to file a supplemental brief, and, if appropriate, a revised 19 privilege log or its equivalent pursuant to Federal Rule of Civil Procedure 26(b)(5). 20 For all documents submitted for in camera review, defendants shall provide one set of 21 unredacted documents and another set of documents bearing proposed redactions, and submit 22 such documents to kjnorders@caed.uscourts.gov. 23 2. Plaintiff’s motion to appoint counsel (ECF No. 36) is denied without prejudice. 24 3. Defendants’ motion to modify the scheduling order (ECF No. 37) is granted. 25 4. Discovery is extended to September 30, 2022, for the sole purpose of resolving the 26 discovery requests at issue herein; the dispositive motions deadline is extended to November 30, 27 2022; in all other respects the terms of the March 15, 2021 discovery and scheduling order (ECF 28 No. 22) remain in full force and effect. 1 5. Plaintiff's request for deposition transcript (ECF No. 38) is denied. 2 || Dated: June 28, 2022 ; Foci) Aharon 4 KENDALL J. NE ; /kahal 807 mte UNITED STATES MAGISTRATE JUDGE 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL KAHAKU, No. 2:20-cv-1807 KJN P 12 Plaintiff, 13 v. Election re Waiver of Disqualification 14 K. WALLACE, et al., 15 Defendants. 16 17 The parties identified below wish to schedule a settlement conference and notify the court 18 of the following election: 19 ____ Pursuant to Local Rule 270(b) of the Eastern District of California, the party signing 20 below affirmatively requests that the assigned Magistrate Judge participate in the settlement 21 conference and further, the parties waive any claim of disqualification to the assigned Magistrate 22 Judge trying the case thereafter. 23 OR 24 ____ The party signing below requests that a different judge hold the settlement 25 conference. 26 DATED:

27 ____________________________________ By: 28