1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 EDMOND PAUL PRICE, No. 1:20-cv-00131-JLT-EPG (PC) 11 Plaintiff, ORDER (1) DENYING PLAINTIFF’S MOTION TO COMPEL THE IDENTITIES OF 12 v. INMATES; (2) DENYING PLAINTIFF’S MOTION TO IDENTIFY JOHN DOE 13 ALVARADO, et al., WITNESSES; AND (3) DENYING, WITHOUT PREJUDICE, DEFENDANTS’ 14 Defendants. MOTION TO EXCLUDE UNDISCLOSED DOCUMENTS 15 (ECF Nos. 77, 84, 88) 16 17 I. INTRODUCTION 18 Plaintiff Edmond Paul Price is a Nevada state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action filed under 42 U.S.C. § 1983. This case proceeds on Plaintiff’s Eighth Amendment claims against: (1) Defendant Alvarado, for excessive force and deliberate 20 indifference to serious medical needs, each in violation of the Eighth Amendment; conspiracy to 21 violate the Eighth Amendment; violation of the First Amendment; and violation of the Fourth 22 Amendment for an unreasonable search; (2) Defendant Carivao, for excessive force and 23 deliberate indifference to serious medical needs, each in violation of the Eighth Amendment; 24 conspiracy to violate the Eighth Amendment; and violation of the First Amendment; and (3) 25 Defendant Martinez, for failure to protect in violation of the Eighth Amendment and conspiracy 26 to violate the Eighth Amendment. (ECF Nos. 11, 14, 19). 27 After Plaintiff failed to participate in this case, the Court held a hearing on Defendants’ 28 1 motion for sanctions on March 1, 2023, during which Plaintiff made an oral motion to compel the 2 identities of inmates who gave statements as part of a prison investigation concerning the claims 3 in this case. (ECF No. 77). The Court issued findings and recommendations to deny the motion 4 for sanctions, which the District Judge adopted. (ECF Nos. 79, 81). Within the findings and recommendations, the Court issued an order setting various deadlines related to the completion of 5 discovery, including requiring Defendants to respond to Plaintiff’s motion to compel. (ECF No. 6 79). 7 Thereafter, Plaintiff filed a motion for an order requiring Defendants to identify John Doe 8 witnesses contained in his list of witnesses (ECF No. 84), and Defendants filed a motion to 9 exclude any documents that Plaintiff failed to provide during discovery (ECF No. 88).1 The time 10 for briefing on all the pending motions has concluded, and the motions are ripe for decision. For 11 the reasons given below, the Court will (1) deny Plaintiff’s motion to compel the identities of 12 inmates; (2) deny Plaintiff’s motion to identify John Doe witnesses; and (3) deny, without 13 prejudice, Defendants’ motion to exclude undisclosed documents. 14 II. MOTIONS 15 A. Plaintiff’s Motion to Compel the Identities of Inmates 16 At the hearing on the motion for sanctions, Plaintiff orally moved to compel the identities 17 of inmates who gave statements as part of a prison investigation concerning the claims in this 18 case. (ECF No. 77). The Court ordered Defendants to submit a copy of the unredacted report 19 containing the statements at issue for in camera review, which Defendants provided. (ECF No. 20 80). 21 On April 7, 2023, Defendants filed their opposition raising three main arguments to deny 22 the motion: (1) the report is privileged and the inmates’ security could be jeopardized if their 23 identities were disclosed due to the danger of other inmates labelling them as “snitches” for cooperating with an investigation; (2) Plaintiff was provided a redacted version of the statements, 24 none of which support his claims, and also a list of relevant inmates in the area where the 25 incidents occurred so that Plaintiff could conduct his own investigation; and (3) the motion is 26 27 1 While these filings were submitted as “requests,” the Court construes them as motions because they seek 28 a court order. Fed. R. Civ. P. 7(b)(1) (noting that “[a] request for a court order must be made by motion”). 1 untimely. (ECF No. 87). In support of the opposition, Defendants provide the declaration of a 2 CDCR litigation coordinator, J. Barba, who generally discusses the dangers posed to inmates who 3 cooperate with prison staff. (ECF No. 87). 4 On April 18, 2023, Plaintiff filed a reply arguing that (1) he does not have the influence nor motivation to threaten the safety of the involved inmates; (2) Plaintiff believes the statements 5 are fabricated or made under duress and he wishes to question the inmates himself; and (3) 6 Plaintiff tried to file the motion earlier but was unsuccessful.2 (ECF No. 90). 7 Federal Rule of Civil Procedure 26(b)(1) provides for the discovery of “any nonprivileged 8 matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” 9 Here, Defendants generally assert the qualified privilege for “official information” regarding the 10 report at issue. Discussing this privilege, the Ninth Circuit has stated as follows: 11 Federal common law recognizes a qualified privilege for official information. Kerr 12 v. United States Dist. Ct. for N.D. Cal., 511 F.2d 192, 198 (9th Cir.1975), aff’d, 426 U.S. 394, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976). . . . To determine whether the 13 information sought is privileged, courts must weigh the potential benefits of disclosure against the potential disadvantages. If the latter is greater, the privilege 14 bars discovery. Jepsen v. Florida Bd. of Regents, 610 F.2d 1379, 1384-85 (5th 15 Cir.1980); [Zaustinsky v. Univ. of California, 96 F.R.D. 622, 625 (N.D. Cal. 1983), aff’d, 782 F.2d 1055 (9th Cir. 1985)]. 16 Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033–34 (9th Cir. 1990), as amended on denial of 17 reh’g (Feb. 27, 1991), as amended on denial of reh’g (May 24, 1991). Likewise, “[w]hen 18 discoverable information may give rise to institutional safety and security concerns, courts 19 balance the need for the information and the extent the information compromises security to 20 determine whether disclosure is warranted.” Rogers v. Giurbino, 288 F.R.D. 469, 480 (S.D. Cal. 21 2012). 22 In considering these interests, the Court first concludes that the potential benefit of 23 Plaintiff receiving this information is low. Defendants have already provided Plaintiff with a 24 redacted version of the report, which omits most inmate names and prison identification numbers, 25 but contains the unredacted statements of each inmate. In those statements, the inmates all claim not to have witnessed the alleged assault. Moreover, Defendants do not intend to call any of the 26 27 2 Minor alterations, such as changing capitalization, have been made to some of Plaintiff’s quotations 28 without indicating each change. 1 inmates as witnesses at trial.3 While Plaintiff asserts that these statements must be fabricated or 2 made under duress, he provides no evidence or developed argument to support this assertion. In 3 any event, given that Defendants do not plan to call the inmates as witnesses, their credibility will 4 not be at issue during the trial.
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 EDMOND PAUL PRICE, No. 1:20-cv-00131-JLT-EPG (PC) 11 Plaintiff, ORDER (1) DENYING PLAINTIFF’S MOTION TO COMPEL THE IDENTITIES OF 12 v. INMATES; (2) DENYING PLAINTIFF’S MOTION TO IDENTIFY JOHN DOE 13 ALVARADO, et al., WITNESSES; AND (3) DENYING, WITHOUT PREJUDICE, DEFENDANTS’ 14 Defendants. MOTION TO EXCLUDE UNDISCLOSED DOCUMENTS 15 (ECF Nos. 77, 84, 88) 16 17 I. INTRODUCTION 18 Plaintiff Edmond Paul Price is a Nevada state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action filed under 42 U.S.C. § 1983. This case proceeds on Plaintiff’s Eighth Amendment claims against: (1) Defendant Alvarado, for excessive force and deliberate 20 indifference to serious medical needs, each in violation of the Eighth Amendment; conspiracy to 21 violate the Eighth Amendment; violation of the First Amendment; and violation of the Fourth 22 Amendment for an unreasonable search; (2) Defendant Carivao, for excessive force and 23 deliberate indifference to serious medical needs, each in violation of the Eighth Amendment; 24 conspiracy to violate the Eighth Amendment; and violation of the First Amendment; and (3) 25 Defendant Martinez, for failure to protect in violation of the Eighth Amendment and conspiracy 26 to violate the Eighth Amendment. (ECF Nos. 11, 14, 19). 27 After Plaintiff failed to participate in this case, the Court held a hearing on Defendants’ 28 1 motion for sanctions on March 1, 2023, during which Plaintiff made an oral motion to compel the 2 identities of inmates who gave statements as part of a prison investigation concerning the claims 3 in this case. (ECF No. 77). The Court issued findings and recommendations to deny the motion 4 for sanctions, which the District Judge adopted. (ECF Nos. 79, 81). Within the findings and recommendations, the Court issued an order setting various deadlines related to the completion of 5 discovery, including requiring Defendants to respond to Plaintiff’s motion to compel. (ECF No. 6 79). 7 Thereafter, Plaintiff filed a motion for an order requiring Defendants to identify John Doe 8 witnesses contained in his list of witnesses (ECF No. 84), and Defendants filed a motion to 9 exclude any documents that Plaintiff failed to provide during discovery (ECF No. 88).1 The time 10 for briefing on all the pending motions has concluded, and the motions are ripe for decision. For 11 the reasons given below, the Court will (1) deny Plaintiff’s motion to compel the identities of 12 inmates; (2) deny Plaintiff’s motion to identify John Doe witnesses; and (3) deny, without 13 prejudice, Defendants’ motion to exclude undisclosed documents. 14 II. MOTIONS 15 A. Plaintiff’s Motion to Compel the Identities of Inmates 16 At the hearing on the motion for sanctions, Plaintiff orally moved to compel the identities 17 of inmates who gave statements as part of a prison investigation concerning the claims in this 18 case. (ECF No. 77). The Court ordered Defendants to submit a copy of the unredacted report 19 containing the statements at issue for in camera review, which Defendants provided. (ECF No. 20 80). 21 On April 7, 2023, Defendants filed their opposition raising three main arguments to deny 22 the motion: (1) the report is privileged and the inmates’ security could be jeopardized if their 23 identities were disclosed due to the danger of other inmates labelling them as “snitches” for cooperating with an investigation; (2) Plaintiff was provided a redacted version of the statements, 24 none of which support his claims, and also a list of relevant inmates in the area where the 25 incidents occurred so that Plaintiff could conduct his own investigation; and (3) the motion is 26 27 1 While these filings were submitted as “requests,” the Court construes them as motions because they seek 28 a court order. Fed. R. Civ. P. 7(b)(1) (noting that “[a] request for a court order must be made by motion”). 1 untimely. (ECF No. 87). In support of the opposition, Defendants provide the declaration of a 2 CDCR litigation coordinator, J. Barba, who generally discusses the dangers posed to inmates who 3 cooperate with prison staff. (ECF No. 87). 4 On April 18, 2023, Plaintiff filed a reply arguing that (1) he does not have the influence nor motivation to threaten the safety of the involved inmates; (2) Plaintiff believes the statements 5 are fabricated or made under duress and he wishes to question the inmates himself; and (3) 6 Plaintiff tried to file the motion earlier but was unsuccessful.2 (ECF No. 90). 7 Federal Rule of Civil Procedure 26(b)(1) provides for the discovery of “any nonprivileged 8 matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” 9 Here, Defendants generally assert the qualified privilege for “official information” regarding the 10 report at issue. Discussing this privilege, the Ninth Circuit has stated as follows: 11 Federal common law recognizes a qualified privilege for official information. Kerr 12 v. United States Dist. Ct. for N.D. Cal., 511 F.2d 192, 198 (9th Cir.1975), aff’d, 426 U.S. 394, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976). . . . To determine whether the 13 information sought is privileged, courts must weigh the potential benefits of disclosure against the potential disadvantages. If the latter is greater, the privilege 14 bars discovery. Jepsen v. Florida Bd. of Regents, 610 F.2d 1379, 1384-85 (5th 15 Cir.1980); [Zaustinsky v. Univ. of California, 96 F.R.D. 622, 625 (N.D. Cal. 1983), aff’d, 782 F.2d 1055 (9th Cir. 1985)]. 16 Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033–34 (9th Cir. 1990), as amended on denial of 17 reh’g (Feb. 27, 1991), as amended on denial of reh’g (May 24, 1991). Likewise, “[w]hen 18 discoverable information may give rise to institutional safety and security concerns, courts 19 balance the need for the information and the extent the information compromises security to 20 determine whether disclosure is warranted.” Rogers v. Giurbino, 288 F.R.D. 469, 480 (S.D. Cal. 21 2012). 22 In considering these interests, the Court first concludes that the potential benefit of 23 Plaintiff receiving this information is low. Defendants have already provided Plaintiff with a 24 redacted version of the report, which omits most inmate names and prison identification numbers, 25 but contains the unredacted statements of each inmate. In those statements, the inmates all claim not to have witnessed the alleged assault. Moreover, Defendants do not intend to call any of the 26 27 2 Minor alterations, such as changing capitalization, have been made to some of Plaintiff’s quotations 28 without indicating each change. 1 inmates as witnesses at trial.3 While Plaintiff asserts that these statements must be fabricated or 2 made under duress, he provides no evidence or developed argument to support this assertion. In 3 any event, given that Defendants do not plan to call the inmates as witnesses, their credibility will 4 not be at issue during the trial. As for the potential disadvantages of disclosure, there is some safety concern that the 5 inmates who made statements as part of the investigation could be subject to retaliation for 6 cooperating with a prison investigation. Specifically, the declaration of J. Barba states that 7 inmates are assured during investigations that their identities will remain confidential and that 8 inmates who are known to cooperate with prison officials may be labeled “snitches” and thus put 9 in danger of retaliation or harassment from fellow inmates, in additional to the risk of inmates not 10 cooperating in the future. (ECF No. 87, pp. 21-22). 11 When balancing this potential risk against the low benefit from Plaintiff obtaining the 12 identities of the inmates, the Court will deny Plaintiff’s motion to compel the inmates’ identities.4 13 B. Plaintiff’s Motion to Identify John Doe Witnesses 14 In his list of witnesses, filed on March 29, 2023, Plaintiff lists some John Does, e.g., 15 officers working the floor of a certain prison facility, and lists two prison officials with the last 16 name of Smith. (ECF No. 84). Within this filing, Plaintiff moves for “an order directing 17 Defendants to disclose the names of all John and Jane Does that ha[ve] been listed as a witness 18 herein and to provide a first name [for] both Smiths listed as witnesses.” (Id. at 5). Defendants’ 19 opposition argues that Plaintiff failed to request any names for these persons during discovery and 20 thus his motion is untimely. (ECF No. 89). Plaintiff has not filed a reply, and the time to do so has 21 expired. See Local Rule 230(l). 22 The Court agrees that the motion is untimely. The Court opened discovery on November 23 24, 2020, setting a non-expert discovery deadline of July 23, 2021. (ECF No. 28). On December 24 3 Defendants would be precluded from relying on undisclosed information. Fed. R. Civ. P. 37(c)(1) (“If a 25 party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless 26 the failure was substantially justified or is harmless.”). Specifically, Defendants cannot withhold the inmate names and then call them as witnesses at trial. However, given Defendants’ representation that they 27 will not call the inmates at trial, this is not an issue in this case. 4 Having concluded that the inmates’ identities should not be disclosed under the balancing test, the Court 28 need not reach Defendants’ timeliness argument. 1 4, 2020, the Court appointed counsel for the limited purpose of conducting discovery and 2 participating in a settlement conference. (ECF No. 30). After counsel’s appointment ended, the 3 non-expert discovery deadline was continued to March 11, 2022, with a deadline to file a motion 4 to compel by May 20, 2022. (ECF No. 62). While Plaintiff claimed in an unrelated filing that he attempted to file a motion to compel “certain names and things” by the deadline, he did not 5 specify whether this purported motion concerned the John Does at issue here. (ECF No. 71, p. 4). 6 Moreover, Plaintiff has not filed a reply addressing Defendants’ argument that he could have 7 moved for this information during the discovery period. 8 Given these circumstances, Plaintiff’s motion is untimely and will be denied on that basis. 9 Correa v. Braudrick, No. 1:19-CV-00369-ADA-BAK (GSA) (PC), 2022 WL 3704216, at *1 10 (E.D. Cal. Aug. 26, 2022), objections overruled, 2022 WL 14122776 (E.D. Cal. Oct. 22, 2022) 11 (internal citation and quotation marks omitted) (“Thus, the untimeliness of a motion to compel is 12 sufficient ground, standing alone, to deny a discovery motion.”). 13 C. Defendants’ Motion to Exclude Undisclosed Documents 14 In providing a list of documents, Plaintiff stated in the conclusion as follows: “These 15 documents may not be the only documents Plaintiff has obtained thus far but at this point it is 16 Plaintiff’s belief that this disclosure will make Defendants aware of all documents Plaintiff now 17 has.” (ECF No. 83, p. 6). Plaintiff then states that he anticipates receiving more “J-Pay emails” 18 and any email provided to him in the future should not require disclosure because they are 19 documents that are available to Defendants. 20 In response, Defendants filed a motion on April 14, 2023, arguing that Plaintiff has failed 21 to provide all documents supporting his claims and “request[ing] that this Court issue an order 22 precluding Plaintiff from offering any documents at summary judgment or trial that were not 23 provided in his March 29, 2023, filings or that are otherwise already in the defense’s possession.” (ECF No. 88, p. 2). On April 26, 2023, Plaintiff filed a response stating: 24 Despite the fact that Plaintiff did not provide every document he has to the Court, 25 Plaintiff does contend that every document he currently has are documents that 26 have been disclosed to Defendants, by Defendants or documents Defendants have direct access to (such as J-Pay emails from inmates housed at the prison). 27 (ECF No. 91). 28 1 Defendants have not filed any reply, and the time to do so has expired. See Local Rule 2 | 230d). 3 Upon review, the Court will deny Defendants’ motion without prejudice. While the Court 4 || recognizes the general rule that undisclosed information cannot be used later in a case, see Fed. R. 5 | Civ. P. 37(c)(1), Plaintiff does not say that he plans to rely on any undisclosed documents. 6 However, if he attempts to do so later, Defendants may raise the issue with an appropriate motion 7 and before the appropriate judge.* 8 I. CONCLUSION AND ORDER
9 For the reasons given above, IT IS ORDERED as follows: 1. Plaintiff's oral motion to compel the identities of inmates (ECF No. 77) is denied. 2. Plaintiffs motion to identify John Doe witnesses (ECF No. 84) is denied. 3. Defendants’ motion to exclude undisclosed documents (ECF No. 88) is denied without 2 prejudice. 13 14 | ITIS SO ORDERED. | pated: _May 16, 2023 [se hey □ 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 | > For example, if Plaintiff seeks to introduce an undisclosed document at trial, any objection will 28 | be heard by the presiding District Judge.