Manago v. Martinez
Manago v. Martinez
2022 WL 17363901 (C.D. Cal. 2022)
August 30, 2022

Scott, Karen E.,  United States Magistrate Judge

Medical Records
Sanctions
Mobile Device
Attorney Work-Product
Third Party Subpoena
Failure to Produce
Initial Disclosures
Protective Order
Download PDF
To Cite List
Summary
The Court directed defense counsel to contact the litigation coordinator or law librarian for Plaintiff's CDCR institution to ascertain the status of the USB drive and the boxes containing audio/video recordings relating to the November 11, 2020 incident. The Court also instructed defense counsel to file a status report with the Court no later than September 12, 2022, which should include a copy of any privilege log produced by Defendant.
STEWART MANAGO
v.
M. MARTINEZ, et al
Case No. 5:21-cv-01939-MCS-KES
United States District Court, C.D. California
Filed August 30, 2022

Counsel

Stewart Manago, Vacaville, CA, Pro Se.
John M. Fujii, Silver and Wright LLP, Irvine, CA, for M. Martinez.
Scott, Karen E., United States Magistrate Judge

PROCEEDINGS (IN CHAMBERS): ORDER DENYING Plaintiff's Discovery Motions [Dkt. 22, 23, 24]

I. BACKGROUND.
*1 Pro se inmate Stewart Manago (“Plaintiff”) is pursuing this § 1983 action for excessive force against Sheriff Deputy A. Prince (“Defendant”) alleging Defendant fired 108 pepper spray balls at Plaintiff on November 11, 2020, after Plaintiff refused to close his cell door in “peaceful protest” of prison housing practices. (Dkt. 7 [First Amended Complaint] Dkt. 13 [voluntary dismissal of all other defendants].)
The pepper ball incident is the same use of force at issue in Brint Clark v. Lt. M. Martinez, et al., case no. 5:21-cv-00340-MCS-PD, a lawsuit filed by the inmate in the cell next to Plaintiff's. Defendant Prince and the Clark defendants are represented by the same law firm.
In May 2022, the Court issued a Case Management and Scheduling Order (“CMO”) directing, among other things, that defense counsel produce to Plaintiff by July 7, 2022, as initial disclosures: (1) his relevant medical records, (2) relevant documents about the pepper ball incident, and (3) relevant documents already produced in the Clark case. (Dkt. 21.) The Court also instructed that Defendant provide a privilege log identifying relevant documents withheld on the basis of privilege. (Id.) The Court directed the parties to file a status report by August 26, 2022. (Id.)
II. RECENT FILINGS.
In August 2022, the Court received the following filings from the parties:
(1) Plaintiff's Motion to Compel Discovery (Dkt. 22) and Defendant's opposition (Dkt. 25);
(2) Plaintiff's Motion for a Protective Order (Dkt. 23) and Defendant's opposition (Dkt. 26);
(3) Plaintiff's Motion for Subpoenas (Dkt. 24) and Defendant's opposition (Dkt. 28); and
(4) Defendant's status report (Dkt. 27).
The Court discusses each filing below.
III. DISCUSSION.
A. Defendant's Status Report.
Regarding document production, Defendant states, “Defendant has produced over 1,700 pages of documents and a USB flash drive containing audio/video recordings relating to the November 11, 2020 incident” per the CMO. (Dkt. 22 at 2-3.) Defendant also notes that Plaintiff served written discovery, including “two sets of requests for production of documents, [to] which Defendant has responded.” (Id.)
B. Plaintiff's Motion to Compel Discovery (Dkt. 22).
Plaintiff argues that Defendant's production of Clark documents, per the CMO, is deficient. He admits that received the USB flash drive, however. (Dkt. 22 at 7.) He also admits that he received two boxes of documents, labeled 1 of 2 and 2 of 2. (Id. at 11.)
Regarding the USB drive, Plaintiff alleges that on August 2, 2022, two California Department of Corrections and Rehabilitation (“CDCR”) staff members confiscated it from him in the law library. (Id. at 7.) They allegedly did this because they knew that if Plaintiff reviewed the flash drive, he would be able to prove that defense counsel had not included all the Clark documents. (Id. at 9-11.)
*2 Defendant argues that the motion should be denied because he complied with the CMO and mailed the responsive discovery on July 7, 2022.[1] (Dkt. 25 at 5.)
The preponderance of the evidence shows that Defendant did send Plaintiff a USB drive and two boxes of documents. While prison officials may have confiscated the USB drive, that does not reflect a failure by Defendant to provide discovery. Moreover, the Court would not expect those materials to include everything produced in Clark, because some of the Clark documents would not be relevant to Plaintiff's lawsuit. For example, Mr. Clark's medical records showing whether he was injured by the pepper balls are irrelevant to Plaintiff's own alleged injuries.
With regard to the USB drive, inmate plaintiffs generally have a right to review discovery materials relevant to their case, although the law librarian often retains custody of items that could pose a security risk and only permits litigants to review their content in the law library. It is unclear to the Court whether Plaintiff lost the ability to review the items on the USB drive when it was confiscated. The Court therefore directs defense counsel to contact the litigation coordinator or law librarian for Plaintiff's CDCR institution, ascertain the status of the USB drive and the boxes, and file a status report with the Court no later than September 12, 2022. The status report should also advise whether Defendant produced a privilege log and, if so, attach a copy.
Plaintiff asks for copies of grievances filed by Inmates Clark, Lerma, or any others who witnessed the pepper ball incident. (Dkt. 24 at 4.) Defendant's status report should also address whether such documents exist, whether they have been produced (in redacted or unredacted form), and if not, why not. Generally, documents identifying witnesses to an incident and their statements about what happened immediately before or during the incident are relevant.
The Court DENIES the motion, without prejudice to Plaintiff's later renewing it if necessary. Plaintiff shall review Defendant's status report (as described in the prior paragraphs). If, after that, Plaintiff believes that he has still not received specific, relevant, non-privileged documents (like records from his own medical appointments that he remembers, or statements from inmate witnesses whom he knows provided written statements) then he can send a “meet and confer” letter to defense counsel specifically identifying those documents, stating why he believes they exist, and explaining what he reviewed before concluding that he did not receive them. If that does not resolve the matter, then he can renew his motion.
The Court DENIES both parties' request for sanctions in connection with this motion. Fed. R. Civ. P. 37(a)(5)(A)(iii).
C. Plaintiff's Motion for a Protective Order (Dkt. 23).
*3 Plaintiff says that when he asked the law librarian to make copies of the document files on the USB drive, she told him that there were no document files (as opposed to audio or video files) on the drive. (Dkt. 23 at 3.) But the lack of document files on the drive has been explained. Per defense counsel, his office mailed “Plaintiff over 1,700 pages of documents in two banker boxes and a USB flash drive containing audio/video recordings.” (Dkt. 25-1 ¶ 2.)
To the extent Plaintiff asks the Court to order CDCR staff not to open his mail, look at his “work product,” or remove discovery materials from his presence (Dkt. 23 at 3), the Court DENIES the motion. As a pro se litigant, Plaintiff's correspondence and court filings are not protected by the attorney work-product privilege. State prison officials generally have discretion to manage matters of security, so long as they do not unreasonably deprive inmate litigants of the opportunity to review discovery materials.
Defendant asks that the Court sanction Plaintiff for making misrepresentations about a purported conspiracy between counsel, Defendant, and CDCR staff to interfere with Plaintiff's litigation efforts. (Dkt. 26 at 4.) The Court declines to impose sanctions but instructs Plaintiff that his litigation efforts should be aimed at identifying and obtaining relevant discovery to support his claims. That would include, for example, evidence of (1) what was happening immediately before the use of the pepper balls; (2) who witnessed the incident and their statements about it; (3) what circumstances existed that suggest Defendant's use of force was reasonable or unreasonable; and (4) what resulting harm Plaintiff suffered. Allegations of conspiracy and intentional misconduct by opposing counsel usually only detract from legitimate, discovery-related arguments.
D. Plaintiff's Motion for Subpoenas (Dkt. 24).
In the CMO, the Court instructed, “Parties proceeding pro se can apply to the Court to issue subpoenas to obtain documents and/or deposition testimony from non-parties following the procedures set forth in FRCP 45.” (Dkt. 21 at 6-7.)
Plaintiff asks the Court to authorize two subpoenas to the San Bernardino County Sheriff's Internal Affairs Department to get documents including (1) Plaintiff's prior complaints against West Valley Detention Center (“WVDC”) deputies for allegedly fostering inmate-on-inmate violence through housing policies and in other ways; and (2) prior complaints against Defendant for using excessive force at the West Valley Detention Center.
As to the first request, the Court DENIES it as irrelevant. Plaintiff's prior personnel complaints about these topics do not inform whether Defendant's use of force on November 11, 2020, was reasonable. It also appears likely to the Court that Plaintiff would have copies of his own complaints.
As for the second request, correctional officers accused of excessive force typically produce discovery about prior complaints, if any, similar to the incident at issue in the lawsuit. In his September 12, 2022 status report, Defendant shall advise the Court whether he has provided discovery about prior complaints of excessive force arising from other pepper ball incidents at WVDC. If not, then Defendant shall advise the Court (1) whether Defendant deployed pepper balls at WVDC in 2019 or 2020 other than during the November 11, 2020 incident with Plaintiff; (2) if so, when; and (3) for each incident, was there an inmate complaint or grievance alleging that the use of pepper balls constituted excessive force? If so, (4) how were those complaints/grievances resolved?
IV. CONCLUSION.
*4 For the reasons stated above, Plaintiff's pending discovery motions are DENIED. (Dkt. 23, 24, 25.) Any hearing dates noticed by Plaintiff are ordered OFF CALENDAR. In the future, Defendant need not oppose Plaintiff's discovery motions unless invited by the Court to do so.

Footnotes

Defendant also argues that the motion should be denied because Plaintiff failed to meet and confer. (Dkt. 25 at 4.) Per the CMO, the parties are required to meet and confer prior to filing discovery motions. (Dkt. 21 at 8.) It appears, however, that Plaintiff sent counsel one or more letters which the Court liberally construes as an attempt to meet and confer over this discovery dispute.