Carroll v. California Department of Corrections

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 ABONILICO CARROLL, Case No.: 19-cv-2126-JO-KSC 14 Plaintiff, FURTHER ORDER REGARDING 15 v. PLAINTIFF’S MOTION TO COMPEL DEPOSITION OF 16 CALIFORNIA DEPARTMENT OF WARDEN AND CHIEF MEDICAL CORRECTIONS, et al., 17 OFFICER Defendants. 18 19 [Doc. No. 79] 20 21 Plaintiff Abonilico Carroll is proceeding pro se and in forma pauperis in this civil 22 rights action pursuant to 42 U.S.C. § 1983. On October 4, 2021, plaintiff filed a motion 23 regarding several discovery issues (the “Discovery Motion”). Doc. No. 79. On November 24 10, 2021, the undersigned denied plaintiff’s requests, set forth in the Discovery Motion, to 25 extend the pretrial deadlines set forth in the Court’s May 7, 2021 Scheduling Order [Doc. 26 No. 40] by 30 to 45 days. Doc. No. 85. The Court also advised plaintiff that the Warden 27 and Chief Medical Officer (“CMO”) of Richard J. Donovan Correctional Facility (“RJD”), 28 where plaintiff resided at the time of the events giving rise to the lawsuit, had not been 1 served with the Complaint and therefore were not parties to the case. Id. at 2. As to 2 plaintiff’s request to depose the Warden and the CMO, however, the Court stated it did not 3 have enough information before it to assess whether these individuals had any knowledge 4 relevant to plaintiff’s claims, and whether they objected to being deposed on this or any 5 other basis. Id. The Court ordered the Attorney General to file a response addressing these 6 issues, which the Court has now received. Id. at 2-3. Having carefully considered plaintiff’s 7 request and the Attorney General’s response and the applicable law, the Court hereby 8 DENIES plaintiff’s request to depose the Warden and the CMO. 9 First, although plaintiff states in his motion that he sought to depose the Warden and 10 the CMO, he has not attached any subpoena, deposition notice, or proof of service 11 indicating that he took the appropriate procedural steps (or indeed any procedural steps at 12 all) to secure these witnesses’ testimony. See generally Doc. No. 79. Defendants’ response 13 confirms that plaintiff did not serve written notice of these depositions. Doc. No. 90 at 2, 14 5. The Court has previously advised plaintiff that he must follow the Federal Rules of Civil 15 Procedure in his pursuit of discovery. See, e.g., Doc. Nos. 55, 60 and 67. Because plaintiff 16 failed to notice the depositions or command the witnesses’ attendance by subpoena, there 17 is no basis upon which the Court could compel the Warden and CMO to appear for 18 deposition. Plaintiff’s request is denied on this basis. 19 Second, even assuming that plaintiff had followed the proper procedure, he has not 20 shown that he met the requirement to meet and confer with defendants’ counsel (or the 21 witnesses’ counsel, if applicable) before seeking the Court’s intervention. See generally 22 Doc. No. 79. In a sworn declaration, defendants’ counsel reports that at the conclusion of 23 plaintiff’s deposition on August 10, 2021, he and plaintiff spoke about plaintiff’s intention 24 to take depositions, at which time counsel reminded plaintiff that he must serve written 25 notice of any depositions and retain a stenographer to record them. Doc. No. 90-1 at 2. 26 They moved on to other topics, and counsel “had no further communications from 27 [p]laintiff about taking depositions through the time that [p]laintiff filed the present 28 /// | |}motion.” /d. Plaintiff's request is denied on the alternative basis that he failed to meet and 2 || confer before filing his motion. 3 Finally, the Court agrees with defendants that the record does not support a finding 4 || that the witnesses have information relevant to plaintiff's claims. See Doc. No. 90 at 3-4. 5 || Defendants correctly note that plaintiff's complaint does not name the Warden and CMO 6 ||by name. /d. at 3 (citing Doc. No. 30). Nevertheless, defendants’ counsel identified 7 || through his own research the individuals who were serving as Warden and CMO at RJD in 8 || August 2016, when plaintiff sustained his alleged injuries. /d. at 3. Both individuals have 9 || since retired. /d. Defendants’ counsel relates in his sworn declaration the contents of his 10 ||conversation with the Warden, which indicate that the Warden has no information 11 regarding plaintiff's claims. See Doc. No. 90-1 at Defendants’ counsel also described 12 ||his efforts to locate the CMO, which were ultimately not successful. See id. at {fj 4, 6. 13 || Nevertheless, as defendants correctly point out, plaintiff bears the burden of establishing 14 || the relevance of the discovery he seeks. Doc. No. 90 at 4-5; see also Hancock v. Aetna 15 || Life Ins. Co., 321 F.R.D. 383, 390 (W.D. Wash. 2017) (noting that the moving party “bears 16 |/the burden of demonstrating the information it seeks is relevant”). Plaintiff has not 17 || persuaded the Court that the Warden and the CMO have information relevant to □□□□□□□□□□ 18 || claims. 19 For all of the foregoing reasons, plaintiff's motion to compel the depositions of 20 ||RJD’s former Warden and Chief Medical Officer is DENIED. 21 ISSO ORDERED. 22 Dated: January 24, 2022 A y /; ) 23 WU LA _———_ A Hori. Karen S. Crawford United States Magistrate Judge 25 26 27 28