(PC) Spence v. Johnson

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA GERALD SPENCE, No. 2:21-cv-0692 AC P 12 Plaintiff, 13 v. ORDER B. JOHNSON, et al., 15 Defendants.

17 Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to this court pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

20 Plaintiff has filed a motion to produce custodial officer’s personnel records and a motion to extend the discovery deadline date. ECF Nos. 34, 36. The motion is fully briefed (see ECF Nos. 34, 37, 38) (plaintiff’s motion; defendants’ opposition; plaintiff’s reply, respectively), and defendants have not filed an objection to plaintiff’s request for an extension of his date to respond to discovery.

25 The court construes plaintiff’s motion to produce custodial officer’s personnel records as a motion to compel. For the reasons stated below, the motion to compel will be denied and the motion for an extension of time to respond to discovery will be granted.

28 //// 1 I. MOTION TO COMPEL 2 A. Parties’ Arguments 3 Plaintiff asks the court to direct defendants to produce the personnel records of defendant correctional officer E. Garcia. ECF No. 34 at 1-3; 6-9. Plaintiff states that these and other requested materials are necessary so that he may properly prepare for trial. Id. at 17.

6 Defendants oppose the motion on the grounds that it is premature. ECF No. 37 at 2.

7 Referencing the court’s discovery and scheduling order, they contend that plaintiff served his requests for production of documents on them on October 31, 2022, and that the court’s scheduling order allows defendants forty-five days from that date to respond to them. Id. This, defendants assert, makes their response to plaintiff’s requests for production of documents due December 15, 2022. Id. 12 In plaintiff’s reply to defendants’ opposition, he states that the motion is not a motion to compel; it is a Pitchess1 motion, and it is part of his discovery requests for defendants. ECF No. 38 at 1. Plaintiff asks that the court rule on it after defendants’ responses to his discovery requests have been served. Id. at 2.

16 B. Discussion 17 Plaintiff’s motion must be denied. To the extent that it is construed as a motion to compel, it is premature. Plaintiff does not dispute defendants’ assertion that he served his written discovery requests on them on October 31, 2022. See generally ECF No. 38 (plaintiff’s reply).

20 Therefore, consistent with the court’s discovery and scheduling order, defendants have until December 15, 2022, to respond to plaintiff’s requests for production of documents. See ECF No. 29 at 5 (discovery and scheduling order). Assuming plaintiff has made requests for the personnel records of defendant Garcia in his discovery documents and that defendants’ responses are sent to plaintiff on that date, until plaintiff has received defendants’ discovery responses and reviewed them, he will not know whether the personnel information he seeks from defendants has been provided to him. Plaintiff as much as acknowledges this fact when he asks the court not to rule 1 Pitchess v. Los Angeles County Superior Court, 11 Cal.3d 531 (1974). See ECF No. 34 at 4.

1 on the motion to compel until defendants have served him with their responses to his discovery requests. See ECF No. 38 at 2.

3 The parties have until February 3, 2023, to complete discovery and to file motions to compel. ECF No. 29 at 5. If, closer to that date, plaintiff believes defendants have not provided discovery he believes he is entitled to receive, and he has made the proper formal requests for it of defendants with no success, he may file another motion to compel. When doing so, however, he must follow the federal rules governing discovery and motions to compel. See, e.g., Fed. R. Civ. P. 37.

9 Finally, to the extent plaintiff argues that the motion should not be denied as premature because it is a Pitchess motion and not a motion to compel (see ECF No. 38 at-1 2), this argument also fails. Pitchess motions are for use by defendants in state criminal trials, not by plaintiffs in federal civil rights actions. See generally Turner v. Spence, No. CIV S 07-0022 GGH P, 2008 13 WL 927709 at *9 (E.D. Cal. Apr. 4, 2008) (citing City of Santa Cruz v. Municipal Court, 49 14 Cal.3d 74, 86 (1989); Pitchess v. Superior Court, 11 Cal.3d 531, 537 (1974)). For this reason as well, this motion will be denied.

16 II. MOTION FOR EXTENSION OF TIME 17 In plaintiff’s motion for an extension of time of the close of the date of discovery, plaintiff argues that it should be granted because on or around November 16, 2022, he was transferred to Pelican Bay State Prison, and as a result, his property will not be issued to him for at least thirty days. ECF No. 36 at 1. As a result, he believes that he may not be able to timely respond to defendant Johnson’s first request for admissions, which were re-served on him on November 4, 2022, and thus, are due on December 19, 2022. Id. at 1-2. Defendants have not filed objections to the motion.

24 Plaintiff’s motion for an extension of time to respond to defendants’ discovery requests will be granted. He shall have forty-five days from the date of this order to respond them.

26 //// //// //// ] Accordingly, IT IS HEREBY ORDERED that: 2 1. Plaintiffs motion to produce custodial officer’s personnel records, which the court || construes as a motion to compel (ECF No. 34), is DENIED as premature; 4 2. Plaintiff's motion for an extension of time to respond to defendants’ discovery || requests (ECF No. 36) is GRANTED; 6 3. Within forty-five days of the date of this order, plaintiff shall serve responses to || defendants’ discovery requests, and 8 4. All other directives in the court’s discovery and scheduling order issued October 17, || 2022 (ECF No. 29) are to remain in full force and effect.

10 | DATED: December 19, 2022 Chthwen— Clare ALLISON CLAIRE 12 UNITED STATES MAGISTRATE JUDGE