Wilson v. Segovia

[6] 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA [9] 10 LUCIOUS WILSON, Case No.: 19cv2254-LAB-MDD 11 Plaintiff, ORDER DENYING PLAINTIFF'S 12 v. MOTION TO TAKE DEPOSITIONS OF PLAINTIFF'S WITNESSES 13 SGT. SEGOVIA, et al., AND MOTION FOR PITCHESS 14 Defendants. REVIEW [15] [ECF No. 34] [17] 18 On October 7, 2020, Plaintiff Lucious Wilson (“Plaintiff”), a state 19 prisoner proceeding pro se and in forma pauperis in this civil rights action 20 pursuant to 42 U.S.C. § 1983 , filed a motion to depose certain witnesses and 21 for Pitchess review of Defendants’ personnel files. (ECF No. 34). For the 22 reasons stated herein, the Court DENIES Plaintiff’s motions. 23 As an initial matter, Plaintiff does not need the Court’s permission to 24 depose non-party witnesses. Fed. R. Civ. P. 30(a). In order to secure the 25 appearance of non-party witnesses at their depositions, the witnesses must 26 be personally served with subpoenas that are accompanied by money orders 1 for witness fees and, if applicable, travel expenses.1 Fed. R. Civ. P. 45; 28 2 U.S.C. § 1821 . However, the discovery completion deadline in this case was 3 October 12, 2020.2 (ECF No. 25 at 2). In the scheduling order, the Court 4 advised the parties that “‘[c]ompleted’ means that interrogatories, requests 5 for production, and other discovery requests must be served at least thirty 6 (30) days prior to the established cutoff date so that responses thereto will be 7 due on or before the cutoff date. All subpoenas issued for discovery must be 8 returnable on or before the discovery cutoff date” (Id.). Plaintiff signed the 9 instant motions on September 16, 2020. As a result, even if Plaintiff had 10 issued subpoenas on that date, they would be untimely. 11 Plaintiff’s Pitchess motion is also untimely. Plaintiff seeks the 12 disclosure of “all incidents of excessive force or any other acts of violence” in 13 Defendants’ personnel files. (ECF No. 34 at 9). Pitchess v. Super. Ct. of L.A. 14 Co. (Echeveria), “established that a criminal defendant could ‘compel 15 discovery’ of certain relevant information in the personnel files of police 16 officers by making ‘general allegations which establish some cause for 17 discovery’ of that information and by showing how it would support a defense 18 to the charge against him.” Warrick v. Superior Court, 35 Cal. 4th 1011 , 19 1018-19 (Cal. 2005). “In 1978, the California Legislature codified the holding 20 . . . by enacting . . . Evidence Code sections 1043 through 1045. California’s 21 Evidence Code § 1043 now provides a procedure for discovery of peace officer 22 personnel records in state judicial proceedings, but § 1043 is not binding upon [24] 25 1 The deposing party must also bear the costs of recording the depositions, bear the costs of transcribing the depositions if the party intends to use them as evidence in a 26 proceeding, and must arrange for the depositions to be conducted before an officer. 2 Discovery is extended until October 31, 2020 for the sole purpose of Defendants obtaining 1 ||federal court.” Jackson v. Cty. of Sacramento, 175 F.R.D. 653, 655 (E.D. Cal. 9 || 1997) Gnternal citations omitted). 3 This is a federal civil rights action under 42 U.S.C. § 1983 to which 4 ||the Federal Rules of Civil Procedure apply and Plaintiff's Pitchess motion 5 ||}under California law is not binding on this court.? To the extent that 6 || Plaintiff seeks discovery of Defendants’ personnel files in this case, he should 7 ||have referred to Federal Rule of Civil Procedure 34(a), which allows a party 8 || to request the production of any document within the scope of Rule 26(b). 9 || However, as indicated previously, even if Plaintiff had appropriately 10 || propounded discovery requests upon Defendants on September 16, 2020, they 11 || would be untimely. (See ECF No. 25 at 2). 12 Accordingly, the Court DENIES Plaintiffs motions. (ECF No. 34). 13 IT IS SO ORDERED. 14 ||Dated: October 18, 2020 . tA [ Hon. Mitchell D. Dembin 16 United States Magistrate Judge [22] 23 |} □□□ [24] 3 The motion presently before the Court cannot be construed as a motion to compel. 95 || Plaintiff has not demonstrated that he made a request to Defendants for production of these documents. Also, Plaintiff does not clearly describe his attempts to obtain the 26 || relevant documents directly from Defendants through a proper discovery request and does 9 not present any arguments that demonstrate how Defendants’ objections to Plaintiffs 7 requests were unjustified.