# Nakashyan

> District Court, E.D. California · December 3, 2025

URL: https://www.frixlaw.com/law-library/cases/11224025

## Case

- **Full name:** Derek Tate v. Diana Nakashyan, et al.
- **Court:** District Court, E.D. California
- **Decided:** December 3, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
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11 DEREK TATE, Case No.: 1:22-cv-00624-SKO (PC)
12 Plaintiff, ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
13 v. MOTION TO COMPEL

14 DIANA NAKASHYAN, et al., (Doc. 48)

15 Defendants. ORDER DENYING PLAINTIFF’S
CONSTRUED MOTIONS FOR
16 RECONSIDERATION

17 (Docs. 62 & 63)

18

19 I. BACKGROUND
20
The undersigned issued a temporary stay of these proceedings on January 14, 2025. (Doc.
21
68.) Specifically, the action was stayed pending the Court’s determination of the following
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motions:
23 1. Plaintiff’s motion to compel (Doc. 48);
24 2. Defendants’ motion for summary judgment (Doc. 50); and
25 3. Plaintiff’s motions relating to summary judgment (Docs. 52, 65 & 66).
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Additionally, before issuance of the stay, Plaintiff filed two documents titled “Plaintiffs
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Objections …” to this Court’s November 13, 2024, and December 2, 2024, orders. (Docs. 62 &
1 more fully below.
2 This order resolves Plaintiff’s motion to compel and the construed motions for
3 reconsideration. The remaining motions, all pertaining to summary judgment, will be resolved
4 separately. The action remains stayed pending resolution of the summary judgment motion and
5 related motions.
6 II. PLAINTIFF’S ALLEGATIONS
7 In asserting a First Amendment retaliation claim against Defendant Nakashyan, Plaintiff
8 alleges Nakashyan took adverse action against him in the form of filing a false Rules Violation
9 Report (RVR) that resulted in his removal from the Enhanced Outpatient Program (EOP) program
10 at Kern Valley State Prison (KVSP) because Plaintiff filed a Prison Rape Elimination Act
11 (PREA) complaint against Nakashyan. He further contends Nakashyan called Plaintiff’s primary
12 care clinician at another facility and that because of Nakashyan’s call, Plaintiff was removed from
13 that facility’s EOP program. Regarding Plaintiff’s Fifth Amendment equal protection violation
14 claim against Nakashyan, Plaintiff alleges Nakashyan intentionally treated Plaintiff differently
15 than other EOP participants and that there was no reasonable basis for the difference in his
16 treatment.
17 In asserting a retaliation claim against Defendant Custer, Plaintiff alleges Custer refused
18 to allow Plaintiff to call Nakashyan as a witness at his disciplinary hearing following issuance of
19 the RVR and instead called Sergeant C. Alvarez so that Alvarez could deny any retaliatory
20 motive by Nakashyan associated with Plaintiff’s PREA complaint. And in asserting a Fourteenth
21 Amendment due process violation, Plaintiff alleges Custer refused his request to call Nakashyan
22 as a witness at the related disciplinary proceeding and later lied about having done so.
23 III. DISCUSSION1
24 Plaintiff’s Motion to Compel (Doc. 48)
25 Briefly summarizing the 174-page2 filing, Plaintiff primarily seeks further responses to his
26
1 This Court thoroughly reviewed and considered the parties’ submissions in arriving at its conclusions.
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2 The filing is comprised of Plaintiff’s argument (Doc. 48 at 1-62), declaration stating he is proceeding in
forma pauperis and has “personal knowledge of the fact(s) contained” in the motion (id. at 67), and the
1 discovery requests from Defendant Nakashyan, alleging she failed to adequately respond despite
2 his meet and confer efforts. Plaintiff contends Defendant has a duty to disclose relevant
3 information and that her responses to his request for production of documents was inadequate,
4 incomplete and/or evasive.
5 Plaintiff provides examples of Defendant’s purported repeated failures “to disclose
6 confidential investigative document(s) relevant” to his claims. Plaintiff contends Defendant’s
7 “privilege claim(s) fail” under the Federal Rules of Civil Procedure and the Federal Rules of
8 Evidence. Plaintiff states he “has largely requested personnel file(s) concerning
9 appeal/grievance(s) investigation(s) and finding(s)” and contends they are “proper to obtain
10 information for purposes such as cross-examination.” Plaintiff asserts Defendant’s privilege log
11 “fail(s) to sufficiently identify the subject matter of the document(s) being withheld” and he
12 appears to contend that because Defendant Nakashyan claims she was never interviewed about
13 Plaintiff’s staff misconduct complaints, she “cannot provide” an adequate response in the
14 privilege log. Plaintiff maintains he would be “greatly prejudiced without the document(s)
15 requested” as he would be unable to support his claims.
16 Plaintiff also seeks further responses from Defendant Custer.
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for Production of Documents]), Exhibit B (id. at 86-88 [CDCR-22 forms dated 7/17/2018, 7/21/2018 &
20 8/5/2018]), Exhibit C (id. at 90 [Rules Violation Report dated 8/14/2018]), Exhibit D (id. at 92-93 [Third
Level Appeal Decision dated 6/18/2019]), Exhibit E (id. at 95-97 [Allegation Inquiry or Investigation
21 Completion Notices from the California Correctional Health Care Services dated 4/23/2019 and
4/26/2019]), Exhibit F (id. at 99 [Rules Violation Report ordering rehearing]), Exhibit G (id. at 101-109
22 [Declaration of Derek Tate in Response to Defendant(s) Rule 34 Production Request(s)]), Exhibit H (id. at
111-114 [Correspondence from the California Board of Psychology dated 9/7/2018 & 9/13/2018]), Exhibit
23 I (id. at 115 (Page 2 of a letter dated 3/29/2024 concerning Defendant’s response to Plaintiff’s
Interrogatory No. 11]), Exhibit J (id. at 117 [completed California Board of Psychology release form]),
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Exhibit K (id. at 119-130 [Defendant Nakashyan’s Amended Responses to Plaintiff’s First Set of
Interrogatories (Nos. 3, 5 & 15]), Exhibit L (id. at 132-135 [copy of “Article 44 – Prison Rape Elimination
25
Policy” from the Department of Corrections and Rehabilitation Operations Manual]), Exhibit M (id. at
26 136-138 [copy of Title 15 sections 3401.5 & 3401.6]), Exhibit N (id. at 139-150 [the Declarations of J.
Kern and B. Hancock submitted in support of the privilege log to Defendant’s Responses to Plaintiff’s
27 First Set of Requests for Production of Documents]), Exhibit O (id. at 152-167 [Defendant J. Custer’s
Responses to Plaintiff’s First Set of Requests for Production of Documents]), and Exhibit P (id. at 169-173
[Third Level Appeal Decision dated 9/10/2019 & CDCR Form 602 Inmate/Parolee Appeal dated
1 Defendants’ Opposition3
2 Defendants contend Plaintiff’s motion is untimely because it was signed and dated June
3 17, 2023, two days after the June 15, 2023, deadline for the completion of discovery and filing of
4 all motions to compel. (Doc. 49 at 3.) Defendants further contend Defendant Nakashyan’s
5 response to Plaintiff’s production requests was proper (id. at 4-13), as was Defendant Custer’s
6 response to Plaintiff’s production requests (id. at 13-14).
7 Applicable Legal Standards
8 The Court is vested with broad discretion to manage discovery and control its docket.
9 Landis v. N. Am. Co., 299 U.S. 248, 254 (1936); Hunt v. County of Orange, 672 F.3d 606, 616
10 (9th Cir. 2012); Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002).
11 Rule 26 of the Federal Rules of Civil Procedure provides that a party “may obtain
12 discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and
13 proportional to the needs of the case, considering the importance of the issues at stake in the
14 action, the amount in controversy, the parties’ relative access to relevant information, the parties’
15 resources, the importance of the discovery in resolving the issues, and whether the burden or
16 expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1).
17 Information need not be admissible in evidence to be discoverable. See, e.g., Ford v. Unknown,
18 No. 2:21-cv-00088-DMG-MAR, 2023 WL 6194282, at *1 (C.D. Cal. Aug. 24, 2023). “Evidence
19 is relevant if: (a) it has any tendency to make a fact more or less probable than it would be
20 without the evidence; and (b) the fact is of consequence in determining the action.” Fed. R. Evid.
21 401. Although relevance is broadly defined, it does have “ultimate and necessary boundaries.”
22 Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 350-51 (1978).
23 In response to a party’s request for production of documents, the receiving party “is
24 obliged to produce all specified relevant and nonprivileged documents or other things which are
25 in its ‘possession, custody or control’ on the date specified in the request.” Jadwin v. Cnty. Of
26 Kern, No. 1:07-cv-0026-OWW-TAG, 2008 WL 2025093, at *1 (E.D. Cal. May 9, 2008) (quoting
27 Fed. R. Civ. P. 34(a)). “Relevancy, for the purposes of discovery, is defined broadly, although it
1 is not without ultimate and necessary boundaries.” Gonzales v. Google, Inc., 234 F.R.D. 674,
2 679-80 (N.D. Cal. 2006).
3 A motion to compel is appropriate where a party fails to produce relevant, non-privileged
4 documents requested pursuant to Rule 34 that are in the responding party’s possession, custody,
5 or control. Fed. R. Civ. P. 37(a)(3). If a party, in response to a request for production under Rule
6 34, fails to produce or permit inspection, the discovering party may move for an order compelling
7 production. Id. An evasive or incomplete answer or response to a discovery request “must be
8 treated as a failure to disclose, answer or respond.” Fed. R. Civ. P 37(a)(4).
9 As a general rule, if a responding party objects to a discovery request, the party moving to
10 compel bears the burden of demonstrating that the objections are unjustified. See, e.g., Grabek v.
11 Dickinson, No. CIV S-10-2892 GGH P, 2012 WL 113799, at *1 (E.D. Cal. Jan. 13, 2012);
12 Womack v. Virga, No. CIV S-11-1030 MCE EFB P, 2011 WL 6703958, at *3 (E.D. Cal. Dec. 21,
13 2011). This requires the moving party to inform the court which discovery requests are the
14 subject of the motion to compel, and, for each disputed response, why the information sought is
15 relevant and why the objections lack merit. Grabek, 2012 WL 113799, at *1; Womack, 2011 WL
16 6703958, at *3. The opposing party is “required to carry a heavy burden of showing why
17 discovery was denied.” Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975).
18 A motion to compel is not the appropriate vehicle in which to argue the overall merits of
19 the case. Hoffman v. Jones, No. 2:15-CV-1748-EFB P, 2017 WL 5900086, at *8 (E.D. Cal. Nov.
20 30, 2017), report and recommendation adopted, 2018 WL 497370 (E.D. Cal. Jan. 22, 2018).
21 Discrepancies between facts and evidence is not a basis to compel a further response or to attempt
22 to force a party to change a response; rather, it is fodder for a party to attempt to impeach a
23 witness or to contradict testimony at trial and/or dispositive motion. See Jacobs v. Quinones, No.
24 1:10-CV-02349-AWI-JLT, 2015 WL 3717542, at *8 (E.D. Cal. June 12, 2015); see Hoffman,
25 2017 WL 5900086, at *8.
26 Federal common law recognizes a qualified privilege for official information, referred to
27 alternatively as the “official information privilege” or the “law enforcement privilege.” See
1 Cal. Feb. 22, 2013) (citing Kerr v. U.S. Dist. Ct. for the N. Dist. of Cal., 511 F.2d 192, 197 (9th
2 Cir. 1975)); accord Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir. 1990)). To
3 properly invoke the official information privilege, the claiming official “must have seen and
4 considered the contents of the documents and himself have formed the view that on grounds of
5 public interest they ought not to be produced and state with specificity the rationale of the
6 claimed privilege.” Id. at *5 (quoting Kerr, 511 F.2d at 198) (internal quotations omitted). The
7 party invoking the privilege must at the outset make a “substantial threshold showing” by way of
8 a declaration of affidavit from a responsible official with personal knowledge of the matters to be
9 attested to in the affidavit. Id. (quoting Soto v. City of Concord, 162 F.R.D. 603, 613 (N.D. Cal.
10 1995)).
11 A party claiming that information is privilege must “expressly make that claim” and must
12 “describe the nature of the documents, communications, or tangible things not produced or
13 disclosed – and do so in a manner that, without revealing information itself is privileged or
14 protected, will enable other parties to assess the claim. Fed. R. Civ. P. 26(b)(5)(A)(i) & (ii). A
15 party who receives a discovery request “must, within the time permitted by rule to respond or
16 object, serve and file an objection that invokes the official information privilege by name” and
17 “sufficiently identify the documents so as to afford the requesting party an opportunity to
18 challenge the assertion of privilege.” Miller v. Pancucci, 141 F.R.D. 292, 300 (C.D Cal. 1992)
19 (citations omitted). Additionally, “the party must submit, at the time it files and serves its
20 response to the discovery request, a declaration or affidavit, under oath or subject to the penalty
21 of perjury, from the head of the department which has control over the matter.” Id. (citing Kerr,
22 511 F.2d at 198). This affidavit or declaration must contain specific, detailed information to
23 permit the receiving party and the court to assess the propriety of privilege assertion. See id.
24 Preliminary Statements
25 As an initial matter, the undersigned notes that both parties’ briefing references a privilege
26 log which has not been provided to the Court. The Court is unable to address Plaintiff’s
27 arguments and Defendants’ opposition where no privilege log has been provided. The Court will
1 appropriate.
2 Next, the Court notes Plaintiff’s motion generally challenges all objections asserted by
3 Defendants in responding to Plaintiff’s discovery requests. In their opposition to Plaintiff’s
4 motion, where Defendants do not oppose on those bases (e.g., relevancy, unduly burdensome,
5 etc.), the Court need not address the objections asserted in the discovery response itself. The
6 Court will not address boilerplate objections if Defendants did not set forth the reasons for those
7 objections. See, e.g. Wells v. Gonzales, No. 1:17-cv-01240-DAD-EPG (PC), 2019 WL 4054022
8 at *7, n.3 (E.D. Cal. Aug. 18, 2019) (“The Court need not address Defendant’s boilerplate
9 objections to Plaintiff’s requests. Defendant made no attempt to justify any such objections in
10 opposition to the motion to compel …”); see also Olmos v. Ryan, No. CV-17-3665-PHX-GMS
11 (JFM), 2020 WL 1904631, at *2 (D. Ariz. Apr. 17, 2020) (“in evaluating a motion to compel, the
12 Court does not rely on objections raised only in the response to the discovery request,” citing
13 Cotracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. 655, 663 (D. Kan. 1999)). The
14 Court will instead address the specific issues or objections raised by both Plaintiff’s motion and
15 Defendants’ opposition thereto.
16 The Court notes that a comparison of Plaintiff’s motion to compel and Defendants’
17 opposition reveals the following disputed discovery responses: Request for Production of
18 Documents (RPD) numbers 1, 2, 9, 10, 12, 13, 15, 17, 18, 20, 21, 24 and 25 propounded to
19 Defendant Nakashyan, and RPD numbers 1 through 5 propounded to Defendant Custer. The
20 Court elects to address the discovery at issue in the format employed in Defendants’ opposition.
21 Finally, the Court finds that Plaintiff’s motion to compel is not untimely. The Discovery
22 and Scheduling Order was modified on April 9, 2024, (see Doc. 41), to extend the deadline for
23 the completion of all discovery to Saturday, June 15, 2024. Plaintiff’s motion is dated and signed,
24 and was served on Monday, June 17, 2024. Because the deadline for filing a motion to compel
25 was a date certain that fell on a Saturday, Plaintiff’s submission the following Monday is deemed
26 to be timely.4
27
1 Analysis
2 Nakashyan RPD Nos. 1 and 9
3 RPD No. 1:
4 Any and all grievance(s), complaint(s), or other document(s)
received by California Department of Corrections and rehabilitation
5 Employees (CDCR moving forward); confidential or otherwise filed
against Defendant Diana Nakashyan for Prison Rape Elimination Act
6 Violation(s); while being employed at Kern Valley State Prison.
7 Response to RPD No. 1:
8 Defendant objects to this request because it is vague and ambiguous,
improperly phrased in a compound or conjunctive manner, seeks the
9 production of documents that are not relevant to any party’s claim or
defense, seeks character evidence, and is unduly burdensome and
10 intrusive because Defendant’s liability in this action does not depend
on any other incidents or events, particularly those involving
11 individuals who are not parties to this lawsuit. This request is also
overbroad as to the scope and timeframe of the documents requested.
12 Plaintiff is not entitled to request a grand universe of documents;
such a request runs afoul of Federal Rule of Civil Procedure
13 34(b)(1)(A), which requires a request to “described with reasonable
particularity” the document(s) requested. Defendant further objects
14 to this request on the grounds that it seeks information that is
protected from disclosure by the official-information privilege, the
15 disclosure of which would create a hazard to the safety and security
of the institution, prison officials, and inmates, and violate privacy
16 rights afforded to prison officials and inmates, because it seeks
grievances or complaints submitted by inmates who have not
17 consented to the release of their grievances, and that are protected by
state and federal privacy laws, including the official-information
18 privilege, California Code of Regulations, title 15, § 3370, and
California Penal Code §§ 832.7 and 832.8. Defendant further objects
19 to this request on the ground that it seeks confidential personnel
records that are protected from disclosure by the official information
20 privilege, California Government Code § 6254, California Code of
Regulations, Title 15, § 3450(d), and California Evidence Code §§§
21 1040, 1041, and 1043. Additionally, evidence of complaints filed by
other inmates is irrelevant to establish Defendant’s liability. See
22 Reynoso v. Sayre, No. 11-cv-4525 CW (PR), 2013 U.S. Dist. LEXIS
130782, at *21-22 (N.D. Cal. Sept. 11, 2013).
23
Without waiving these objections, Defendant responds as follows:
24 Defendant produces grievance log nos. KVSP-HC-18000843 and
SAC-HC-21000171, filed by Plaintiff against Defendant, and the
25 related responses. After a reasonable and diligent inquiry, Defendant
does not have any other responsive documents in her possession,
26 custody, or control, as no other responsive documents exist.
27 Plaintiff’s Argument
1 the official information privilege. (See Doc. 48 at 12-20.)
2 Defendants’ Opposition
3 Defendants contend investigative reports are beyond the scope of Plaintiff’s request as he
4 only sought documents received by CDCR, and other than the two grievances Defendants
5 produced, no other grievances or complaints were received by CDCR involving Nakashyan.
6 Ruling
7 While Plaintiff did use the word “received” in his request, he is entitled to leniency as a
8 pro se litigant, and the Court is not inclined to conclude that use of that word makes investigative
9 reports beyond the scope of his request. That said, Defendants produced grievance log nos.
10 KVSP-HC-18000843 and SAC-HC-21000171, and the related responsive documents, and have
11 indicated no responsive documents involve Nakashyan. The motion to compel a further response
12 from Defendant Nakashyan to RPD No. 1 is DENIED.
13 RPD No. 9:
14 Any and all document(s) created by California Board of Psychology
in response to Case No. 6002018000865; confidential or otherwise
15 concerning Defendant Diana Nakashyan while employed at KVSP.
16 Response to RPD No. 9:
17 Defendant objects to this request because it is vague and ambiguous
as to time and scope, seeks the production of documents that are not
18 relevant to any party’s claim or defense, seeks character evidence,
and is unduly burdensome and intrusive because Defendant’s
19 liability in this action does not depend on any other incidents or
events, particularly those involving individuals who are not parties
20 to this lawsuit. Defendant further objects because this request seeks
documents that are not within Defendant’s possession, custody, or
21 control. This request seeks discovery from a non-party and does not
comport with the standards set out in Federal Rule of Civil Procedure
22 45.
23 Without waiving these objections, Defendant responds as follows:
Defendant produces the notification letter from the California Board
24 of Psychology regarding the complaint Plaintiff filed against
Defendant. After a reasonable inquiry and a diligent search,
25 Defendant does not have any other responsive documents in her
possession, custody, or control.
26
Plaintiff’s Argument
27
Plaintiff contends the “reports are highly relevant” to his “subject matter claims.” He
1 states the Board of Psychology responded to his complaint, informing him Nakashyan “would be
2 required to respond” to his complaint in writing. Plaintiff references Nakashyan’s responses to his
3 interrogatory numbers eight and twelve where Nakashyan answered she was “never interviewed
4 by the California Board of Psychology.” Plaintiff contends he is “entitled to know what
5 confidential psychotherapy note(s)” Nakashyan sent in response and “if in fact they are correct
6 psychotherapy note(s) and/or report(s). Plaintiff next contends his trial preparation would be
7 prejudiced, stating “Defendant(s) lost/destroyed” the “audio taped interview” from August 10,
8 2018. Plaintiff contends the Board of Psychology documents may lead to admissible evidence to
9 be used at summary judgment or trial, for cross-examination and impeachment purposes. He
10 maintains “the Board(s) Investigative Report(s) will be highly relevant” to Nakashyan’s
11 credibility and “are in the sole possession of the Defendants.”
12 Defendants’ Opposition
13 Defendants contend Plaintiff has failed to show how the Board of Psychology’s
14 investigative report of his complaint is relevant to his retaliation claim, “namely that Nakashyan
15 retaliated against Plaintiff for submitting a PREA complaint.” Defendants contend Nakashyan
16 served supplemental responses and produced all documents Nakashyan received from the Board,
17 including the case closure email and letter, and “her email/response to the inquiry into Plaintiff’s
18 complaint.” Finally, Defendants maintain Nakashyan is not obligated to request documents from
19 a separate government agency.
20 Ruling
21 The Court notes that Plaintiff assumes Nakashyan would be interviewed because of his
22 complaint to the Board of Psychology. The Board’s letters to Plaintiff reference “statements
23 collected from the subject …” and “a response to your concerns from Dr. Nakashyan.”
24 Accordingly, the fact that Nakashyan responded to Plaintiff’s interrogatories indicating she was
25 never interviewed by the Board are not an indication that a further response is required. Plaintiff
26 also fails to demonstrate that Defendants have control over “all document(s) created by California
27 Board of Psychology in response to Case No. 6002018000865.” The burden of establishing
1 of Petroleum & Indus. Workers, 870 F.2d 1450, 1452 (9th Cir. 1989). A party is not in “control”
2 of records that the requesting party has equal ability to obtain from public sources. See Estate of
3 Young Through Young v. Holmes, 134 F.R.D. 291, 294 (D. Nev. 1991). Here, Plaintiff could have
4 potentially obtained the information he seeks from the California Board of Psychology by
5 subpoena. Fed. R. Civ. P. 45. In any event, Defendants have produced to Plaintiff the records in
6 Nakashyan’s actual possession, including the notification letter, “email/response to the inquiry
7 into Plaintiff’s complaint,” and case closure letter and email from the Board of Psychology.
8 Finally, the Court finds the Board of Psychology documents are not likely to lead to
9 admissible evidence that Nakashyan retaliated against Plaintiff for filing the PREA complaint. As
10 the September 7, 2018, letter to Plaintiff states, “The Board’s authority to investigate complaints
11 is limited to determining administrative violations of the Laws and Regulations Relating to the
12 Practice of Psychology.” (See Doc. 48 at 111.) The motion to compel a further response from
13 Defendant Nakashyan to RPD No. 9 is DENIED.
14 Nakashyan RPD Nos. 15, 20, 21 and 25
15 RPD No. 15:
16 Name and position of nurse assistant on duty on July 19, 2018; C-
Facility Mental Health Center; during plaintiff(s) video conference
17 contact with Psychiatrist A. Rizvi at Kern Valley State Prison; on or
about August 10 2018; C-Facility.
18
Response to RPD No. 15:
19
Defendant objects to this request because it is vague and ambiguous
20 as to time, as it identifies two separate dates. Defendant further
objects to this request because it seeks information that is not relevant
21 to any claim or defense and is not proportional to the needs of this
case, considering the burden of the proposed discovery outweighs its
22 likely benefit. Without Defendant further objects to the extent
information sought is “confidential” within the meaning of
23 California Code of Regulations, Title 15, § 3321, and therefore an
inmate such as Plaintiff is prohibited from possession of the
24 requested information under the provisions of California Code of
Regulations, Title 15, § 3450(d). Moreover, full names of CDCR
25 staff below director’s level are subject to the official information
privilege. Based on the objections and without further clarification
26 as to how this information is relevant to Plaintiff’s claims, Defendant
will not respond to this request.
27
1 Plaintiff’s Argument
2 Plaintiff contends Defendants failed to respond to his “meet and confer request that
3 verified ‘8/10/2018; date was included in” his original request. Plaintiff maintains “both date(s)
4 are relevant,” he was present when the “nurse assistant was directed by Dr. Rizvi to conduct a
5 search of the Defendant(s) computer generated e-mail(s), without alerting” Nakashyan that an
6 “investigation was [occurring.]” Plaintiff asserts the nurse assistant’s identity “may be needed for
7 cross-examination for Defendant Nakashyan” and he “has personal knowledge, that corrective
8 action was initiated against” Nakashyan. Plaintiff argues the objection concerning confidentiality
9 “is without merit” because he “actually spoke with the nurse(s) assistant [and] no confidentiality
10 provision(s) are implicated.” He states that response “serves only to vex and harass and/or delay”
11 his trial preparation.
12 Defendants’ Opposition
13 Defendants contend the only documents pertaining to the PREA investigation against
14 Nakashyan “are the confidential reports for KVSP-SC-19000013 and SAC-PREA-21-01-008.”
15 Defendants further contend that Nakashyan has never been the subject of any corrective action
16 because of an alleged PREA violation, and no corrective action was taken against her. Finally,
17 Defendants assert that Plaintiff’s request seeks information rather than documentation, and that
18 Nakashyan is not required to create a responsive document.
19 Ruling
20 As an initial matter, to the extent Plaintiff contends he has “personal knowledge” of some
21 “corrective action,” this assertion goes to the merits of his case and is not proper for a motion to
22 compel. Hoffman v. Jones, No. 2:15-cv-1748-EFB P, 2017 WL 5900086, at *8 (E.D. Cal. Nov.
23 30, 2017) (“a motion to compel is not the appropriate vehicle in which to argue the overall merits
24 of the case. This answer was sufficient”); Jacobs v. Quinones, No. 1:10-cv-02349-AWI-JLT
25 (PC), WL 3717542, at *7 (E.D. Cal. June 12, 2015) (“discrepancies between facts and evidence is
26 not a basis to compel a further response or to attempt to force an opposing party to change a
27 response to propounded discovery; rather, it is fodder for Plaintiff to attempt to impeach a witness
1 seeks the “name and position” of the “nurse assistant on duty on July 19, 2018.” This request is
2 better suited to a written interrogatory rather than a request for production of documents,
3 particularly where Defendants indicate a responsive document identifying this individual does not
4 exist. Hoffman, 2017 WL 5900086, at *12 (“Defendant states that no log exists, and the court
5 cannot compel the production of material that does not exist … the court accepts defendant’s
6 contention that no log exists”); Goolsby v. Carrasco, No. 1:09-cv-01650 JLT (PC), 2011 WL
7 2636099, at *8 (E.D. Cal. July 5, 2011) (“Plaintiff's request is not one for the production of
8 documents. Rather, it asks Defendant to create a roster of prison officials based on certain criteria.
9 This is not a proper request under Federal Rule of Civil Procedure 34(a)”). Requiring a further
10 response by Nakashyan would require the creation of a document that does not exist. Therefore,
11 the motion to compel a further response from Defendant Nakashyan to RPD No. 15 is DENIED.
12 RPD No. 20:
13 A chronological work history of Defendant Diana Nakashyan while
employed by CDCR at KVSP.
14
Response to RPD No. 20:
15
Defendant objects to this request because it is vague and ambiguous
16 as to the term “work history,” vague and overbroad as to time and
scope, and seeks the production of documents that are not relevant to
17 any party’s claim or defense. This request is improper as it requires
Defendant to create a list that does not already exist and a party is not
18 obligated to create documents that do not exist in response to a
discovery request. See Goolsby v. Carrasco, 2011 WL 2636099 at
19 *8-9 (E.D. Cal. July 5, 2011) (denying plaintiff’s motion to compel
production of documents where plaintiff’s request required
20 defendant to “create documents, as opposed to produce already
existing document.”) To the extent that this request includes
21 personnel files of the Defendant, personnel-related files are protected
from disclosure by official information privilege for the safety and
22 security of the institution, staff, and inmates. Sanchez v. City of Santa
Ana, 936 F.2d 1027, 1033-34 (9th Cir. 1991). Based on these
23 objections, Defendant will not respond to this request as not such
responsive documents exist.
24
25 Plaintiff’s Argument
26 Plaintiff contends the evidence is relevant, proportional to the needs of the case, and
27 necessary for cross-examination.
1 Defendants’ Opposition
2 Defendants state no such document exists and that Nakashyan has no obligation “to create
3 a list that does not already exist.” Defendant further contends Plaintiff “did not identify any
4 specific issue with this objection.”
5 Ruling
6 Plaintiff’s dissatisfaction with Defendant Nakashyan’s response does not warrant a further
7 response by Defendant. Jacobs, WL 3717542, at *10 (Plaintiff shows nothing other than his
8 disagreement with Magana's response. This is insufficient to show that his response is evasive or
9 incomplete. … This is yet more fodder for Plaintiff to attack the Defendants' assertions and
10 positions at trial and/or on dispositive motion”). Significantly, Defendants state that a
11 “chronological work history” document does not exist. Hoffman, 2017 WL 5900086, at *12;
12 Goolsby, 2011 WL 2636099, at *8. The motion to compel a further response from Defendant
13 Nakashyan to RPD No. 20 is DENIED.
14 RPD No. 21:
15 Any and all electronically stored data and/or computer record(s)
created by Defendant Diana Nakashyan after speaking with the
16 plaintiff(s) Primary Care Physician Sarah Parhami at Los Angeles
County State Prison in January 2019 while employed at Kern Valley
17 State Prison (Telephone contact).
18 Response to RPD No. 21:
19 Defendant objects to this request on the grounds it is vague as to the
term “[a]ny and all electronically stored data” and “computer
20 records.” This request is also overbroad as to the scope and
timeframe of the documents requested. Plaintiff is not entitled to
21 request a general universe of documents; such a request runs afoul of
Federal Rule of Civil Procedure 34(b)(1)(A), which requires a
22 request to “describe with reasonable particularity” the document(s)
requested. Defendant also objects that the request is overbroad,
23 unduly burdensome, and seeks information that is not relevant to any
claim or defense and not proportional [to] the needs of the case
24 considering the burden of the proposed discovery outweighs its likely
benefit. Defendant further objects on the ground that this request is
25 unduly burdensome and intrusive because the responsive data and/or
computer records contain irrelevant information about other non-
26 party individuals, which would need to be redacted in order to protect
those individuals’ right to privacy. The request also potentially seeks
27 information protected by the official information privilege, rules and
regulations deeming them confidential, and the rights of privacy of
1 832.7, 832.8; Cal. Gov. Code §§ 3300-3313, 6254; Cal. Evid. Code
§§ 1040, 1041, 1043; Cal. Code Regs. tit. 15, §§ 3321, 3370, 3450.
2 The request also seeks information protected by the attorney-client
privilege.
3
Without waiving objections, Defendant responds as follows:
4 Defendant will limit Plaintiff’s request and produce non-privileged
and non-confidential emails send by Defendant after January 2019
5 that relate to Defendant’s telephone conversation with Dr. Parhami
concerning Dr. Parhami’s questions that are located after a
6 reasonable and diligent search. Based on the above objections,
Defendant will not respond further to this request.
7
8 Plaintiff’s Argument
9 Plaintiff contends that although Defendants agreed to send him “non-privileged and non-
10 confidential email(s),” he did not receive any responsive documents. He maintains his “request is
11 highly relevant” and may lead to admissible evidence.
12 Defendants’ Opposition
13 In responding to Plaintiff’s meet and confer letter, Defendants advised Plaintiff that no
14 responsive documents exist. A reasonable and diligent forensic search was performed by CDCR.
15 It “was only able to retrieve Nakashyan’s emails from her former CDCR account.” CDCR
16 provided 2,624 emails from Nakashyan’s account “that contain ‘Tate’ or his CDCR number from
17 between July 1, 2018, to December 31, 2021, which is over two years after Nakashyan left
18 KVSP.” Following defense counsel’s review of all 2,624 emails, none mentioned Dr. Parhami or
19 Dr. Parhami’s phone call to Nakashyan.
20 Ruling
21 Plaintiff’s dissatisfaction with Defendant Nakashyan’s response is not a basis upon which
22 to compel a further response. Jacobs, WL 3717542, at *10. Defendants indicate no responsive
23 documents exist and the Court cannot compel that which does not exist. The motion to compel a
24 further response from Defendant Nakashyan to RPD No. 21 is DENIED.
25 RPD No. 25:
26 Any and all list of computer terminal(s) assigned to Defendant Diana
Nakashyan while employed at Kern Valley State Prison beginning
27 on March 1, 2018; until the present date of this request.
1 Response to RPD No. 25:
2 Defendant objects to this request because it is vague and ambiguous
as to the terms “[a]ny and all list,” and “computer terminal(s).”
3 Defendant further objects to this request because it seeks information
that is not relevant to any claim or defense and not proportional to
4 the needs of this case, considering the burden of the proposed
discovery outweighs its likely benefit. Defendant further objects on
5 the grounds that this request is overly broad in scope and unduly
burdensome as Plaintiff is not entitled to request a general universe
6 of documents; such a request runs afoul of Federal Rule of Civil
Procedure 34(b)(1)(A), which requires a request to “describe with
7 reasonable particularity” the document(s) requested. Additionally,
this request is improper as it requires Defendant to create a list that
8 does not already exist and a party is not obligated to create a list that
does not exist in response to a discovery request. See Goolsby v.
9 Carrasco, 2011 WL 2636099 at *8-9 (E.D. Cal. July 5, 2011)
(denying plaintiff’s motion to compel production of documents
10 where plaintiff’s request required defendant to “create documents, as
opposed to produce already existing document.”) To the extent that
11 this request includes personnel files of the Defendant, personnel-
related files are protected from disclosure by official information
12 privilege for the safety and security of the institution, staff, and
inmates. Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033-34 (9th
13 Cir. 1991). Based on these objections, Defendant will not respond to
this request as not such responsive documents exist.
14
15 Plaintiff’s Argument
16 Plaintiff states this evidence is reasonably calculated to lead to admissible evidence for
17 use a trial or during summary judgment proceedings.
18 Defendants’ Opposition
19 Acknowledging Plaintiff’s argument that the evidence sought “’is calculated to reasonably
20 lead to admissible evidence for use at trial and/or summary judgment proceedings,’” Defendants
21 state no responsive documents exist and Nakashyan is not required to create non-existent
22 documents.
23 Ruling
24 A “list of computer terminal(s) assigned to Defendant Diana Nakashyan while employed
25 at Kern Valley State Prison” does not exist. The Court will not compel Defendants to produce a
26 document that does not exist. Hoffman, 2017 WL 5900086, at *12; Goolsby, 2011 WL 2636099,
27 at *8. The motion to compel a further response from Defendant Nakashyan to RPD No. 25 is
1 Nakashyan RPD Nos. 10, 12 and 17
2 RPD No. 10:
3 Any and all document(s) created by Kern Valley State Prison staff or
any other California department of Correction(s) employee or
4 official in response to grievance log# SAC SC 21000013;
confidential or otherwise.
5
Response to RPD No. 10:
6
Defendant objects to this request because it is vague and ambiguous
7 as to the phrase “in response to,” overbroad as to scope, and seeks
information that is equally available to Plaintiff. Defendant objects
8 to the extent information sought is “confidential” within the meaning
of California Code of Regulations, Title 15, § 3321, and therefore an
9 inmate such as Plaintiff is prohibited from possession of the
requested information under the provisions of California Code of
10 Regulations, Title 15, § 3450(d). This request also seeks personnel
records that are protected from disclosure by California Government
11 Code § 6254 and California Code of Regulations, Title 15, § 3450(d).
The request also seeks personnel records that are protected by the
12 official information privilege. Sanchez v. City of Santa Ana, 936 F.2d
1027, 1033-34 (9th Cir. 1991); see T. Feryance Decl.
13
RPD No. 12:
14
Any and all document(s) created by Kern Valley State Prison staff or
15 any other California Department of Correction(s) employee or
official in response to grievance log # KVSP SC 19000013;
16 confidential or otherwise.
17 Response to RPD No. 12:
18 Defendant objects to this request because it is vague and ambiguous
as to the phrase “in response to,” overbroad as to scope, and seeks
19 information that is equally available to Plaintiff. Defendant objects
to the extent information sought is “confidential” within the meaning
20 of California Code of Regulations, Title 15, § 3321, and therefore an
inmate such as Plaintiff is prohibited from possession of the
21 requested information under the provisions of California Code of
Regulations, Title 15, § 3450(d). This request also seeks personnel
22 records that are protected from disclosure by California Government
Code § 6254 and California Code of Regulations, Title 15, § 3450(d).
23 The request seeks documents that are protected by the official
information privilege for the safety and security of the institution,
24 staff, and inmates. Sanchez v. City of Santa Ana, 936 F.2d 1027,
1033-34 (9th Cir. 1991).
25
Without waiving these objections, Defendant responds and produces
26 as follows: Institutional and Headquarters’ responses and Allegation
Inquiry or Investigative Completion Notice to KVSP-SC-19000013.
27 After a reasonable inquiry and diligent search, Defendant does not
have any other responsive non-confidential documents in her
1 RPD No. 17:
2 Any and all document(s) created by complaint SAC PREA log #
PREA 21-01-008; confidential or otherwise; ISU Correctional
3 Sergeant A. Huynh; At CSP Sacramento.
4 Response to RPD No. 17:
5 Defendant objects to this request because it is vague and ambiguous
as to the terms “[a]ny and all document(s),” requiring Defendant to
6 speculate as to the documents sought, and vague and overbroad as to
the scope and timeframe of the documents requested. Defendant
7 objects to the extent information sought is “confidential” within the
meaning of California Code of Regulations, Title 15, § 3321, and
8 therefore an inmate such as Plaintiff is prohibited from possession of
the requested information under the provisions of California Code of
9 Regulations, Title 15, § 3450(d). This request also seeks personnel
records that are protected from disclosure by California Government
10 Code § 6254 and California Code of Regulations, Title 15, § 3450(d).
This request seeks documents that are protected by the official
11 information privilege for the safety and security of the institution,
staff, and inmates. Sanchez v. City of Santa Ana, 936 F.2d 1027,
12 1033-34 (9th Cir. 1991); see T. Feryance Decl. in support of
Defendant’s Privilege Log.
13
Without waiving these objections, Defendant responds and produces
14 as follows: PREA Allegations Closure Chrono for Log No. SAC-
PREA-21-01-008. After a reasonable inquiry and a diligent search,
15 Defendant does not have any other responsive non-confidential
documents in her possession, custody, or control. See Privilege Log.
16
17 Plaintiff’s Arguments re RPD Nos. 10, 12 and 17
18 Plaintiff’s arguments largely concern the requirement of an “interview/investigation”
19 following a PREA complaint and Defendants’ reliance on the official information privilege. (See
20 Doc. 48 at 40-50.)
21 Defendants’ Opposition to RPD Nos. 10, 12 and 17
22 Defendants contend they asserted the official information privilege and properly withheld
23 confidential allegation inquiry memoranda for KVSP-SC-19000013 and SAC-PREA-21-01-008;
24 the Declaration of J. Kern supported the privileges asserted for RPD Nos. 10 and 17, and the
25 Declaration of B. Hancock supported the privilege asserted for RPD No. 12. Defendants contend
26 both declarations “describe how the confidential documents are retained, state that they are
27 familiar with the documents at issue, describe the risk of disclosure, why a protective order is not
1 disclosures were made.” Defendants aver that Plaintiff does not challenge the substance of either
2 declaration or the truth of the assertions regarding the need for confidentiality for those
3 documents. Defendants state Plaintiff argues Kern’s declaration is defective because he is not “a
4 CCII” and both declarations are defective because they only provide “that it is CDCR’s policy to
5 maintain confidentiality of the requested documents but do not state that it is the policy of CSP-
6 SAC and KVSP.” Defendants maintain Kern is an appropriate declarant because he is an official
7 with CSP-SAC with personal knowledge of the principal matters attested to, neither declaration is
8 defective for its lack of reference to CSP-SAC or KVSP “because CDCR operates all adult
9 institutions … and establishes the confidentiality policies and procedures to be followed by its
10 institutions.” Defendants contend Plaintiff’s challenge is insufficient to overcome the official
11 information privileges asserted.
12 Ruling
13 The Court has reviewed the Declarations of J. Kern and B. Hancock and finds each
14 sufficient to make the required substantial threshold showing. Duenez, 2013 WL 684654, at *5
15 (quoting Kerr, 511 F.2d at 198 and Soto, 162 F.R.D. at 613). The fact that Kern is not a “CCII”
16 or correctional counselor II is not persuasive because Kern is a prison official with personal
17 knowledge of the subject at issue, and both affidavits were sufficiently detailed. Miller, 141
18 F.R.D. at 300. The Court will order the materials not produced pursuant to the official
19 information privilege to be filed under seal with the Court for an in camera review within forty-
20 five days. Kelly, 114 F.R.D. at 671. Those materials include “PREA Confidential Investigation
21 Memorandum for log number SAC-PREA-21-01-008 and PREA Confidential Closure
22 Memorandum for log number SAC-PREA-21-01-008” and “Confidential Allegation Inquiry
23 Memorandum for grievance log number KVSP-HC-1000843/KVSP-SC-19000013.” Upon
24 submission and in due course, the Court will review the documents in camera.
25 Nakashyan RPD Nos. 2, 13, 18 and 24
26 RPD No. 2:
27 A copy of all electronic stored information showing Defendant Diana
Nakashyan, accessing information concerning Plaintiff D. Tate after
1 Response to RPD No. 2:
2 Defendant objects to this discovery request because it is vague and
ambiguous as to the terms “all electronic stored information,”
3 accessing,” and “information concerning Plaintiff,” and vague and
overbroad as to time and scope. Assuming Plaintiff is asking for a
4 printout or other document showing the dates and times of when
Defendant accessed Plaintiff’s central or medical file, Defendant
5 further objects to this request because it seeks information that is not
relevant to any claim or defense and not proportional to the needs of
6 this case, considering the burden of the proposed discovery
outweighs its likely benefit. The request is also unduly burdensome
7 and intrusive because Plaintiff’s liability in this action does not
depend on how many times she “accessed” Plaintiff’s “information”
8 via his central file or medical file or otherwise. Defendant further
objects on the ground that Plaintiff is not entitled to request a general
9 universe of documents; such a request runs afoul of Federal Rule of
Civil Procedure 34(b)(1)(A), which requires a request to “describe
10 with reasonable particularity” the document(s) requested. Based on
these objections, Defendant will not respond to this request.
11
12 Plaintiff’s Argument
13 Plaintiff contends the information he seeks is relevant because Nakashyan was replaced as
14 his primary care clinician on July 18, 2018, and Nakashyan’s access of Plaintiff’s records in the
15 database after that date may not involve a penological purpose. Plaintiff asserts Nakashyan was
16 required to report her January 16, 2019, contact with his later primary care clinician (while he
17 was incarcerated at California State Prison – Los Angeles County), and the electronically stored
18 information might demonstrate whether Nakashyan did report the contact. Plaintiff argues
19 Nakashyan’s contact with the other clinician was undertaken to have him removed from the
20 outpatient program at the other facility in retaliation for having filed the PREA complaint against
21 Nakashyan, noting she “was successful” because he was placed in administrative segregation and
22 removed from the outpatient program shortly thereafter.
23 Defendants’ Opposition
24 Defendants assert Nakashyan properly elected not to respond to this request and Plaintiff’s
25 assertion that Nakashyan accessed his medical records for a non-penological purpose is
26 speculative. Defendants maintain “Nakashyan was required to obtain information for the purpose
27 of defending herself against Plaintiff’s Board of Psychology complaint and his 2019 lawsuit”
1 concerning communications between Nakashyan and Dr. Parhami “deviate from his original
2 request” and that Nakashyan cannot be compelled to respond to a request not served. Lastly,
3 Defendants assert Plaintiff can request his own medical records through his counselor.
4 Ruling
5 The Court finds Defendant Nakashyan’s request sufficiently responsive. Plaintiff
6 speculates that the information he seeks may be relevant to any non-penological purpose. But
7 Defendant Nakashyan had such a purpose because she sought to defend herself after Plaintiff
8 filed a complaint with the Board of Psychology and filed a lawsuit in Kern County Superior
9 Court. Regarding Plaintiff’s references to Dr. Parhami, Defendants’ argument is well taken.
10 Plaintiff’s request does not reference Dr. Parhami and the Court notes that, as discussed above,
11 there exists no electronically stored information in the form of emails between Defendant
12 Nakashyan and Dr. Parhami. The motion to compel a further response from Defendant
13 Nakashyan to RPD No. 2 is DENIED.
14 RPD No. 13:
15 Any and all taped interviewed conducted by the Investigative
Services Unit at Kern Valley State Prison; on or about August 10,
16 2018; C-Facility Office in response to grievance log # KVSP SC
19000013; confidential or otherwise.
17
Response to RPD No. 13:
18
Defendant objects to the extent information sought is “confidential”
19 within the meaning of California Code of Regulations, Title 15, §
3321, and therefore an inmate such as Plaintiff is prohibited from
20 possession of the requested information under the provisions of
California Code of Regulations, Title 15, § 3450(d). This request also
21 seeks personnel records that are protected from disclosure by
California Government Code § 6254 and California Code of
22 Regulations, Title 15, § 3450(d). This request also potentially seeks
documents that are protected by the official information privilege for
23 the safety and security of the institution, staff, and inmates. Sanchez
v. City of Santa Ana, 936 F.2d 1027, 1033-34 (9th Cir. 1991).
24
25 Plaintiff’s Argument
26 Plaintiff states: “Please refer to Plaintiff(s) Motion For Sanction(s) Under Rule 37; on
27 4/4/2024; Defendant informed Plaintiff that the contemporaneous statement(s) surrounding the
1 Defendants’ Opposition
2 Defendants contend Plaintiff “again claims that Nakashyan lost or destroyed an audio tape
3 of his August 10, 2018 interview based on Nakashyan’s response that it does not exist.” They
4 maintain his motion to compel a response should be denied because Plaintiff does not offer any
5 grounds for a further response by Nakashyan.
6 Ruling
7 The Court previously denied Plaintiff’s motion for sanctions regarding the interview of
8 and any recording from August 10, 2018. (See Doc. 61 at 6-9.) Specifically, the Court found that
9 “Plaintiff’s claim that the audio recording was destroyed is pure speculation” (id. at 7) and
10 concluded that Plaintiff had “not demonstrated an audio recording of his interview existed in the
11 first instance” (id. at 9). As explained below (see “Plaintiff’s Construed Motion for
12 Reconsideration (Doc. 63)”), reconsideration of the Court’s ruling concerning any audio
13 recording will also be denied. The motion to compel a further response from Defendant
14 Nakashyan to RPD No. 13 is DENIED.
15 RPD No. 18:
16 Any and all document(s) created by Complaint: NKSP 18-04815 and
SAC 18-04436; Third Level Review Case No. 1819848; confidential
17 or otherwise.
18 Response to RPD No. 18:
19 Defendant objects to this request because it is vague and ambiguous
as to the term “[a]ny and all document(s),” requiring Defendant to
20 speculate as to the documents sought, seeks production of documents
that are not relevant to any party’s claim or defense, and is unduly
21 burdensome and intrusive because Defendant’s liability in this action
does not depend on any incidents or events that occurred at North
22 Kern State Prison (NKSP) or California State Prison-Sacramento
(CSP-SAC). Defendant further objects to this request on the grounds
23 that it seeks information that is protected from disclosure by the
official-information privilege, the disclosure of which would create
24 a hazard to the safety and security of the institution, prison officials,
and inmates, and violate privacy rights afforded to prison officials
25 and inmates. Defendant further objects to this request on the ground
that it seeks confidential personnel records that are protected from
26 disclosure by the official information privilege, California
Government Code § 6254, California Code of Regulations, Title 15,
27 § 3450(d), and California Evidence Code §§§ 1040, 1041, and 1043.
1 After a reasonable inquiry and diligent search, Defendant does not
have any responsive documents in her possession, custody, or
2 control. Discovery is ongoing and Defendant is still searching for
responsive documents. Defendant will provide a privilege log and
3 declaration in support of any responsive privileged or confidential
documents that are located and not produced to Plaintiff.
4
5 Plaintiff’s Argument
6 Plaintiff contends his request is not vague or ambiguous and that he “used this same
7 phrase” for RPD Nos. 1, 3-10, 12-13, and 17. He contends he “was adversely transferred after
8 filing the sexual misconduct complaint(s)” against Nakashyan, making this evidence “significant
9 to the Plaintiff(s) subject matter claims.” He states he would not have been housed at NKSP but
10 for his complaints against Nakashyan. Plaintiff maintains that Defendants’ claim to the official
11 information privilege is deficient, and that Defendants’ claim that no responsive documents exist
12 is “disingenuous.” Finally, Plaintiff states the evidence “will play a significant role” in his attempt
13 to “acquire punitive damages” and goes to Nakashyan’s credibility.
14 Defendants’ Opposition
15 As noted above, Defendants originally responded to Plaintiff’s request by stating that
16 “[a]fter a reasonable inquiry and diligent search, Defendant does not have any responsive
17 documents in her possession, custody, or control.” Subsequently, Nakashyan served a
18 supplemental response and produced “Grievance Log Nos. NKSP 18-04815 and SAC 18-04436
19 and the related notices and responses.” Defendants contend Plaintiff fails to show how these
20 documents are relevant to his retaliation claim against Nakashyan because they concern
21 “allegations against a correctional officer at North Kern State Prison (NKSP) after inmates
22 assaulted Plaintiff at NKSP.” Further, Defendants note Plaintiff makes no argument that
23 Nakashyan “made the decision or had the authority to transfer Plaintiff, and these events are
24 unrelated to the retaliation claim” against Nakashyan. Finally, Defendants state Plaintiff’s request
25 is beyond the scope of discovery and that Plaintiff has failed to identify any grounds for a further
26 response.
27 Ruling
The Court has reviewed the Third Level Appeal Decision for NKSP-18-04815 and SAC-
1 18-04436. The events and information referenced in that document are not relevant to Plaintiff’s
2 claims against Defendant Nakashyan. The events arose in October 2018 while Plaintiff was
3 housed in North Kern State Prison and do not involve Defendant Nakashyan — the subject matter
4 involves inmate assaults at North Kern State Prison, Plaintiff’s report to a correctional sergeant at
5 that institution, his request to be moved to administrative segregation, and his own assault by
6 another inmate at that facility. In any event, Defendants subsequently produced “Grievance Log
7 Nos. NKSP 18-04815 and SAC 18-04436” to Plaintiff. The motion to compel a further response
8 from Defendant Nakashyan to RPD No. 18 is DENIED.
9 RPD No. 24:
10 Any and all electronically stored data (including e-mail); and/or
computer records stored in Defendant Diana Nakashyan(s) hard
11 drive that are retrievable after being deleted.
12 Response to RPD No. 24:
13 Defendant objects to this request because it is vague and ambiguous
as to the term “[a]ny and all electronically stored data,” overbroad
14 and unlimited as to the scope and timeframe of the documents
requested, and seeks information that is not relevant to any claim or
15 defense and not proportional to the needs of this case, considering
the burden of the proposed discovery outweighs its likely benefit.
16 Defendant further objects on the grounds that this request is unduly
burdensome and intrusive because the responsive data, emails,
17 and/or computer records contain irrelevant information about other
non-party individuals, which would need to be redacted in order to
18 protect those individuals’ rights to privacy. Plaintiff is not entitled to
request a general universe of documents; such a request runs afoul of
19 Federal Rule of Civil Procedure 34(b)(1)(A), which requires a
request to “describe with reasonable particularity” the document(s)
20 requested. The request also potentially seeks information protected
by the official information privilege, rules and regulations deeming
21 them confidential, and the rights of privacy of Defendants and non-
party individuals. See, e.g., Cal. Pen. Code §§ 832.7, 832.8; Cal. Gov.
22 Code §§ 3300-3313, 6254; Cal. Evid. Code §§ 1040, 1041, 1043;
Cal. Code Regs. tit. 15, §§ 3321, 3370, 3450. Based on these
23 objections, Defendant will not respond to this request.
24 Plaintiff’s Argument
25 Plaintiff argues that Nakashyan’s conduct “will be a major issue at trial for credibility
26 purposes,” he needs to demonstrate intent regarding his retaliation claim against Nakashyan and
27 he “will be able to demonstrate this fact by Defendant(s) willingness to destroy evidence,” he
1 Defendants’ claim to the official information privilege is deficient.
2 Defendants’ Opposition
3 Defendants contend Plaintiff did not identify “any specific issue with Nakashyan’s
4 objections” and that Nakashyan “produced supplemental documents limited to all non-privileged
5 and non-confidential emails regarding Plaintiff while Nakashyan was employed at KVSP.”
6 Defendants state that “the broad timeframe without search terms would return numerous
7 unrelated and irrelevant documents that would then need to be reviewed for any confidentiality or
8 privilege.” Defendants assert Plaintiff’s request “appears to be little more than a ‘fishing
9 expedition.’”
10 Ruling
11 Plaintiff’s request is vague as to time because it fails to identify any timeframe. Moreover,
12 while Defendant initially refused to respond to this request, they later supplemented their
13 response to include non-privileged information. The motion to compel a further response from
14 Defendant Nakashyan to RPD No. 24 is DENIED.
15 Custer RPD Nos. 1 through 5
16 RPD No. 1:
17 Any and all grievance(s), complaint(s); or other document(s)
received by prison staff, filed against the Defendant J. Custer; while
18 employed at Kern Valley State Prison (KVSP moving forward); for
misconduct, and any memoranda, investigative file(s), confidential
19 or otherwise; or other document(s) created in response to such
complaint(s); including corrective action(s) taken.
20
RPD No. 2:
21
Any and all document(s) created by KVSP staff/employee or any
22 other California Department of Corrections and Rehabilitation
(CDCR moving forward); employee or official in response to
23 Plaintiff(s) disciplinary hearing, on 9/17/2018; rule violation log
#5482347 Disrespect w/Potential for violation/Disruption;
24 confidential or otherwise.
25 RPD No. 3:
26 Any and all document(s) created by KVSP staff/employee or any
other CDCR employee or official in response to appeal/602
27 grievance log no. KVSP 0-19-00561; confidential or otherwise.
1 Any and all document(s) created by KVSP staff/employee or any
other CDCR employee or official in response to appeal/602
2 grievance log no. LAC D-19-00786; confidential or otherwise.
3 RPD No. 5:
4 Any and all document(s) created by KVSP staff/employee or any
other CDCR employee or official in response to Rules Violation
5 Report Log # 5482347 Disrespect w/Potential for
violence/Disruption; confidential or otherwise.
6
7 Plaintiff’s Argument
8 Plaintiff challenges Defendant Custer’s responses to RPD Nos. 1 through 5, as incomplete
9 and contends they are relevant to establish Custer’s intent to violate his First Amendment and due
10 process rights. Plaintiff maintains he may demonstrate a pattern of conduct if the “same type of
11 conduct” is present in the information he seeks in RPD No. 1. He further argues Defendants’
12 objections based upon improper character evidence and a general universe of documents should
13 be overruled. Plaintiff contends Custer failed to provide a privilege log regarding any complaints
14 and that Defendants’ assertion of the official information privilege was deficient. He contends the
15 information he seeks is not cumulative and is necessary to prepare a summary judgment motion
16 and for cross-examination at trial. Plaintiff makes similar claims concerning RPD No. 3 and adds
17 that Defendants’ objections based on vagueness and ambiguity are “boilerplate in their nature.”
18 He states that Defendant’s assertion that the information he seeks is equally available to him “is
19 misleading and untrue” and the objection should be overruled.
20 Defendants’ Opposition
21 Defendants contend Custer properly responded to Plaintiff’s discovery requests.
22 Regarding RPD No. 1, Defendants produced “one grievance contesting a guilty rules violation
23 finding” but argue they should not be compelled to produce any grievances in three other prisoner
24 civil rights actions involving Custer because those actions do not involve “due process or
25 retaliation claims.” Further, Defendants maintain Plaintiff failed to identify specific deficiencies
26 regarding Custer’s responses to RPD Nos. 2 through 5 because Custer fully responded by
27 producing all responsive documents found.
1 Ruling
2 The Court notes that while Plaintiff states he is challenging RPD Nos. 1 through 5, he
3 addressed only RPD Nos. 1 and 3, and asserted no argument concerning RPD Nos. 2, 4 or 5.
4 Because Plaintiff offers no specific argument regarding Custer’s responses to his RPD Nos. 2, 4
5 and 5, the Court will not consider them and deny those requests. See Grabek, 2012 WL 113799,
6 at *1; Womack, 2011 WL 6703958, at *3.
7 Regarding RPD No. 1, the Court conducted a review of the operative complaints in the
8 three other prisoner civil rights actions referenced by the parties, and relied upon by Plaintiff: (1)
9 Kang v. Custer, et al., No. 1:23-cv-01519-KES-CDB; (2) Muniz v. Pfeiffer, et al., No. 1:19-cv-
10 00233-JLT-CDB; and (3) Flores v. Cruz, et al., No. 1:15-cv-01184-DAD-BAM.5 None of those
11 actions involve First Amendment retaliation or Fourteenth Amendment due process claims
12 against Defendant Custer. Thus, the grievances associated with those actions do not have the
13 potential to “establish Custer’s intent to violate [Plaintiff’s] First Amendment and due process
14 rights.” See Fed. R. Civ. P. 26(b)(1); Fed. R. Evid. 401. As a result, Plaintiff’s motion to compel a
15 further response by Custer to RPD No. 1 is DENIED.
16 Regarding RPD No. 3, Defendants provided “the related screening notices and responses
17 to log no. KVSP-0-19-000561,” the only responsive document in their custody and control. Mere
18 distrust and suspicion regarding discovery responses do not form a legitimate basis to further
19 challenge responses which are facially legally sufficient. Fed. R. Civ. P. 26(g)(1) (“By signing, an
20 attorney or party certifies that to the best of the person’s knowledge, information, and belief
21 formed after a reasonable inquiry …”); Gorrell v. Sneath, 292 F.R.D. 629, 632 (E.D. Cal. 2013);
22 L.H. v. Schwarzenegger, No. S–062042 LKK GGH, 2007 WL 2781132, at *2 (E.D. Cal. 2007).
23 The Court finds Defendant Custer’s response sufficient and Plaintiff’s motion to compel a further
24 response by Custer to RPD No. 3 is DENIED.
25 Plaintiff’s Construed Motion for Reconsideration (Doc. 62)
26 Plaintiff filed “Plaintiffs Objections to the Magistrate Judges Recommendations on the
27
5 See Chandler v. United States, 378 F.2d 906, 909 (9th Cir. 1967) (“[A] federal district court can take
judicial notice of its own records, and this is the established rule”).
1 Defendants Motion for Summary Judgement for Failure to Exhaust” on December 2, 2024, in
2 response the Court’s Order Granting Defendant Custer’s Motion for Summary Judgment
3 Regarding Exhaustion of Administrative Remedies. The Court construes Plaintiff’s filing as a
4 motion for reconsideration because the Court did not issue findings and recommendations as it
5 and issued a final order.6
6 Briefly stated, Plaintiff contends “[p]roper analysis under existing case law was not
7 followed,” genuine issues of material fact exist, the Court’s ruling was based on improper
8 credibility determinations, and all inferences were not made in the light most favorable to
9 Plaintiff. Plaintiff cites to subsections (1), (3), and (6) of Rule 60 of the Federal Rules of Civil
10 Procedure. He maintains the Court clearly erred at “pgs 11-16,” stating he “is not required to
11 advance legal [theories] during the appeals process” because “it is enough to put the prison
12 authorities on notice that a violation” of his rights had occurred. Plaintiff states he “can now
13 infer” that Defendant Custer “could have known that the rules violation report was false.” He
14 states “[t]here exists a high degree of success on appeal; as it pertains to the rules violation report
15 being inherently false, and therefore being removed from the Plaintiffs file in the interest of
16 justice and fairness; by the appeals grievance office, more than 6 years” later. Plaintiff concludes
17 that “[p]ursuant to [Rule] 59(e)[,] it would be proper to alter the order arrived at by the Magistrate
18 Judge” and relief is justified “under (b)(1)” of Rule 60.
19 Defendants’ Opposition
20 Defendants did not file an opposition to Plaintiff’s filing of December 2, 2024.
21 Applicable Legal Standards
22 Reconsideration of a prior order is an extraordinary remedy “to be used sparingly in the
23 interests of finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop,
24 229 F. 3d 877, 890 (9th Cir. 2000) (citation omitted); see also Harvest v. Castro, 531 F.3d 737,
25 749 (9th Cir. 2008). “A motion for reconsideration should not be granted, absent highly unusual
26 circumstances, unless the district court is presented with newly discovered evidence, committed
27
6 All parties consented to the jurisdiction of the assigned magistrate judge. Thus, this action was reassigned
to the undersigned for all purposes, including trial and entry of final judgment, on December 14, 2023.
1 clear error, or if there is an intervening change in the controlling law,” and it “may not be used to
2 raise arguments or present evidence for the first time when they could reasonably have been
3 raised earlier in the litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571
4 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks, citations omitted) (emphasis in
5 original).
6 Generally, a motion for reconsideration of a final judgment is brought under Rule 59(e) of
7 the Federal Rules of Civil Procedure. See Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir.
8 1985); see also Schroeder v. McDonald, 55 F.3d 454, 458-59 (9th Cir. 1995). Such a motion must
9 be filed no later than twenty-eight (28) days after entry of the judgment. See Fed. R. Civ. P. 59(e);
10 see also Am. Ironworks & Erectors, Inc. v. N. Am. Constr. Corp., 248 F.3d 892, 898-99 (9th Cir.
11 2001) (a motion for reconsideration is addressed under Rule 59(e) if it is timely and addressed
12 under Rule 60(b) if beyond the deadline).
13 A motion to alter or amend judgment under Rule 59(e) asks the court to reconsider matters
14 “properly encompassed in a decision on the merits.” See Osterneck v. Ernst and Whinney, 489
15 U.S. 169, 174 (1988). A determination under Rule 59(e) involves the following considerations:
16 (1) whether such motion is necessary to correct manifest errors of law or fact upon which the
17 judgment rests; (2) whether such motion is necessary to present newly discovered or previously
18 unavailable evidence; (3) whether such motion is necessary to prevent manifest injustice; or (4)
19 whether the amendment is justified by an intervening change in controlling law. American Civil
20 Liberties Union Foundation of Southern California v. United States Immigration and Customs
21 Enforcement, 347 F.R.D. 518, 524 (C.D. Cal. 2024). “A court considering a Rule 59(e) motion is
22 not limited merely to these four situations.” Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th
23 Cir. 2011) (citation omitted). However, reconsideration on other grounds is appropriate only
24 under “highly unusual circumstances.” 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th
25 Cir. 1999) (citing School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993)).
26 Under Rule 59(e), motions for reconsideration “may not be used to raise arguments or
27 present evidence for the first time when they could reasonably have been raised earlier in the
1 Analysis
2 As an initial matter, Plaintiff’s construed motion is timely. The Court entered its order
3 granting summary judgment on exhaustion grounds for Defendant Custer on November 13, 2024.
4 (Doc. 60.) Plaintiff’s motion was filed 19 days later, on December 2, 2024. (Doc. 62.)
5 Next, the Court considers if granting the motion is necessary to (1) correct manifest errors
6 of law or fact upon which the judgment rests, (2) present newly discovered or previously
7 unavailable evidence, (3) prevent manifest injustice, or (4) is justified by an intervening change in
8 controlling law. American Civil Liberties Union Foundation of Southern California, 347 F.R.D.
9 at 524. It will also consider whether reconsideration is appropriate under “highly unusual
10 circumstances.” 389 Orange St. Partners, 179 F.3d at 665.
11 Here, Plaintiff asserts “[p]roper analysis under existing case law was not followed,”
12 genuine issues of material fact exist, the Court’s ruling was based on improper credibility
13 determinations, and all inferences were not made in the light most favorable to Plaintiff. The
14 Court has reviewed its November 13, 2024, order, particularly its discussion at pages 11 through
15 16,7 and concludes there are no manifest errors of law or fact necessitating correction. And there
16 is no newly discovered or previously unavailable evidence to consider. The Court’s analysis was
17 properly performed under the appropriate legal standards. Thus, relief under Rule 59(e) would not
18 prevent a manifest injustice because Plaintiff did not properly exhaust his First Amendment
19 retaliation claim against Defendant Custer for the reasons explained in the order. Nor is there any
20 intervening change in the controlling law justifying such relief. American Civil Liberties Union
21 Foundation of Southern California, 347 F.R.D. at 524. Finally, the Court has not identified any
22 other “highly unusual circumstance” upon which Rule 59(e) relief would be appropriate. 389
23 Orange St. Partners, 179 F.3d at 665; see also Allstate Ins. Co, 634 F.3d at 1111.
24 The party moving for reconsideration must show more than disagreement with the court’s
25

26 7 The Court determined Plaintiff failed to exhaust his administrative remedies regarding his First
Amendment retaliation claim against Defendant Custer. In so doing, it considered all documentary
27 evidence, including Plaintiff’s grievances and appeals, his opposition to the motion, and relevant
deposition testimony. (Doc. 60 at 10-16.) Ultimately, the Court granted Defendant Custer’s motion for
summary judgment and dismissed Plaintiff’s First Amendment retaliation claim against Defendant Custer
1 decision. In re Worlds of Wonder Securities Litigation, 814 F. Supp. 850, 874 (N.D. Cal. 1993),
2 aff’d in part and rev’d in part on other grounds, 35 F.3d 1407 (9th Cir. 1994), cert. denied, 516
3 U.S. 868 (1995), cert. denied, 516 U.S. 909 (1995); see also Kern-Tulare Water District v. City of
4 Bakersfield, 634 F. Supp. 656, 665 (E.D. Cal. 1986) (the party moving for reconsideration must
5 show more than a disagreement with the court's decision; the court should not grant the motion
6 unless there is a need to correct a clear error of law or prevent manifest injustice), aff'd in part
7 and rev'd in part on other grounds, 828 F.2d 514, cert. denied, 486 U.S. 1015 (1988). Plaintiff’s
8 motion simply disagrees with this Court’s November 13, 2024, decision.
9 In sum, the undersigned concludes Plaintiff’s motion should be denied. Allstate Ins. Co,
10 634 F.3d at 1111; Harvest, 531 F.3d at 749; Kona Enters., Inc., 229 F. 3d at 890; 389 Orange St.
11 Partners, 179 F.3d at 665; American Civil Liberties Union Foundation of Southern California,
12 347 F.R.D. at 524.
13 Plaintiff’s Construed Motion for Reconsideration (Doc. 63)
14 Plaintiff filed “Plaintiffs Objections to the Magistrates Judges Ruling for Sanctions Under
15 Rule 37(e)” on December 19, 2024. For the same reason set forth above, the Court construes
16 Plaintiff’s filing to be a motion for reconsideration of the Court’s Order Denying Plaintiff’s
17 Motion for Sanctions.
18 Plaintiff contends “[p]roper analysis was not under taken in this ruling, clear error is
19 present in the decision,” citing to “Federal Rules of Civil Procedure rule 59(e); and rule 60(b)(6).”
20 Plaintiff argues the Court’s ruling “dismissed and/or [did] not consider” his declaration as it
21 concerns the “audio/video taped interview” at issue, resulting in clear error. Because Plaintiff
22 “has ‘personal knowledge’ that a taped interview took place” on August 10, 2018, and because
23 “this evidence was [never] properly disproved, all that was ever submitted was a general denial
24 by the Defendants without any evidentiary support,” the Court’s denial of sanctions amounts to
25 clear error. He contends he “has demonstrated by Declaratory evidence; circumstantial evidence;
26 and clearly established case law that he is entitled to sanctions under rule #37; for spoliation of
27 electronically stored information evidence.” Alternatively, Plaintiff asserts he “has demonstrated
1 question the I.S.U. Lt. who conducted the interview ….” Plaintiff’s motion is supported by the
2 following exhibits: Exhibit A – Office of Appeals Decision dated 9/15/2024 and Exhibit B –
3 Claimant Grievance Receipt Acknowledgment dated 10/13/2024.
4 Defendants’ Opposition
5 Defendants oppose Plaintiff’s filing because it is unsigned, citing to Rule 11(a) of the
6 Federal Rules of Civil Procedure and this Court’s Local Rule 131(b). Alternatively, Defendants
7 argue Plaintiff’s requested relief should be denied because Rules 59(e), 60(b), and 72(a) are
8 inapplicable and Plaintiff failed to demonstrate he is entitled to reconsideration under Local Rule
9 230(j). Defendants also assert the Court should “decline to consider Plaintiff’s new claim against
10 a non-party and deny Plaintiff’s request to question a non-party correctional lieutenant.”
11 Defendants ask the Court to strike Plaintiff’s filing as procedural deficient, and/or to deny the
12 requested relief because Plaintiff has failed to identify any clear error, new facts, or changes in
13 the law to support such reconsideration, and to reject “Plaintiff’s improperly raised claim and
14 requested hearing.” (See Doc. 67.)
15 Applicable Legal Standards
16 The standards pertaining to Rule 59(e) are provided above. Rule 60(b) provides for relief
17 from a final judgment, order, or proceeding upon a showing of the following:
18 (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence that, with reasonable diligence, could not have
19 been discovered in time to move for a new trial under Rule 59(b); (3)
fraud (whether previously called intrinsic or extrinsic),
20 misrepresentation, or misconduct by an opposing party; (4) the
judgment is void; (5) the judgment has been satisfied, released or
21 discharged; it is based on an earlier judgment that has been reversed
or vacated; or applying it prospectively is no longer equitable; or (6)
22 any other reason that justifies relief.
23 Fed. R. Civ. P. 60(b). Rule 60(b) “applies only to final judgments or final, appealable orders,”
24 with a final decision being “one that ends the litigation on the merits and leaves nothing for the
25 court to do but execute the judgment.” Ewing v. Megrdle, No. CV 12-01334 MWF AJW, 2015
26 WL 1675030, at *3 (C.D. Cal. Mar. 26, 2015) (internal citations & quotation marks omitted).
27 Rule 72 regarding non-dispositive matters provides as follows:
1 referred to a magistrate judge to hear and decide, the magistrate judge
must promptly conduct the required proceedings and, when
2 appropriate, issue a written order stating the decision. A party may
serve and file objections to the order within 14 days after being
3 served with a copy. A party may not assign as error a defect in the
order not timely objected to. The district judge in the case must
4 consider timely objections and modify or set aside any part of the
order that is clearly erroneous or is contrary to law.
5
6 Fed. R. Civ. P. 72(a). Non-dispositive matters, over which magistrate judges are permitted to
7 make determinations, include evidentiary rulings, pretrial discovery matters, and the imposition
8 of sanctions for discovery abuses. Kounelis v. Sherrer, 529 F.Supp.2d 503, 518 (D.N.J. 2008); see
9 also Dunsmore v. San Diego County Sheriff’s Department, No. 20-cv-00406-AJB-DDL, 2024
10 WL 666341, at *2 (S.D. Cal. Feb. 16, 2024) (quoting Kounelis and Estakhrian v. Obenstine, No.
11 CV 11-03480 GAC (CWx), 2012 WL 12884889, at *3 (C.D. Cal. Nov. 9, 2012)).
12 Finally, this Court’s Local Rule 230(j) states, in relevant part, that a movant for
13 reconsideration must show “what new or different facts or circumstances are claimed to exist
14 which did not exist or were not shown” previously, “what other grounds exist for the motion,”
15 and “why the facts or circumstances were not shown” at the time the substance of the order which
16 is objected to was considered. See Local Rule 230(j).
17 Analysis
18 First, Rule 11 requires that “[e]very pleading, written motion, and other paper must be
19 signed … by a party personally if the party is unrepresented.” This rule also provides this “court
20 must strike an unsigned paper unless the omission is promptly corrected after being called to the
21 … party’s attention.” Fed. R. Civ. P. 11(a). Plaintiff’s December 19, 2024, submission is neither
22 signed nor dated. (See Doc. 63 at 5.) Plaintiff did not reply to Defendants’ opposition or correct
23 the omission of his signature. Thus, Plaintiff’s filing is procedurally deficient. Fed. R. Civ. P.
24 11(a); see also DeContreras v. City of Rialto, 894 F.Supp.2d 1238, 1245 (C.D. Cal. 2012)
25 (overruling plaintiffs’ objections to defendants’ evidence on summary judgment where plaintiffs’
26 counsel failed to sign the document). Nonetheless, the Court will not strike the filing and will
27 briefly consider its substance.
Rule 72 is not applicable because it applies where a magistrate judge and a district judge
1 are assigned to an action, and one party seeks the district judge’s review of the magistrate judge’s
2 order concerning a pretrial, non-dispositive motion. Here, a district judge is no longer assigned to
3 the action because the matter was reassigned to the undersigned for all purposes on December 14,
4 2023, following the parties’ consent to the Magistrate Judge’s jurisdiction, nearly one year before
5 the order in question was issued.
6 Next, Rule 60(b) is not applicable. “Rule 60(b) permits a court, on motion and just terms,
7 to relieve a party from a final judgment, order, or proceeding .... The general purpose of the Rule
8 is to make an exception to finality.” Waetzig v. Halliburton Energy Servs., Inc., 145 S. Ct. 690,
9 694 (2025) (citations omitted). “Rule 60(b) ... applies only to ‘a final judgment, order, or
10 proceeding.’” 11 Charles Alan Wright et al., F. Prac. & Proc. Civ. § 2852 (3d ed. 2024). The
11 undersigned’s December 2, 2024, order was not final. It did not close this case, it only denied
12 Plaintiff's motions for sanctions and to strike Defendants’ response. (See Doc. 61.) Likewise,
13 Rule 59(e) is not applicable. The order denying Plaintiff’s motion for sanctions does not involve
14 “a judgment” and judgment was not entered against any party.
15 Next, there is no basis upon which to grant Plaintiff relief under Local Rule 230(j).
16 Plaintiff has failed to establish “new or different facts or circumstances” nor any “other grounds”
17 justifying the granting of his motion for reconsideration. See Local Rule 230(j)(3) & (4). In part,
18 Plaintiff incorrectly contends the Court did not consider his declaration in resolving Plaintiff’s
19 motion for sanctions. The Court considered all related briefs (see Doc. 61 at 3), including
20 Plaintiff’s declaration that appears at pages 8 through 11 of Plaintiff’s reply to Defendants’
21 opposition. The Court finds Plaintiff’s motion amounts to nothing more than disagreement with
22 the Court’s ruling. That is not a basis for granting reconsideration of the Court’s earlier ruling. In
23 re Worlds of Wonder Securities Litigation, 814 F. Supp. at 874; Kern-Tulare Water District, 634
24 F. Supp. at 665.
25 Finally, to the extent Plaintiff’s filing seeks to raise a new claim concerning the identity of
26 the lieutenant who interviewed Plaintiff on August 10, 2018, it is improper. Marlyn
27 Nutraceuticals, Inc. 571 F.3d at 880; Kona Enters., Inc., 229 F.3d at 890. Further, because
1 Plaintiff’s request to “question the I.S.U. Lt. who conducted the interview” on August 10, 2018.
2 Id.
3 In sum, Plaintiff is not entitled to the extraordinary remedy he seeks. Disagreement with
4 the Court’s prior rulings does not warrant reconsideration. The motion will be denied.
5 IV. CONCLUSION AND ORDER
6 For the reasons explained above, the Court HEREBY ORDERS:
7 1. Plaintiff’s motion to compel (Doc. 48) is DENIED in part and GRANTED in part
8 as follows:
9 a. Plaintiff’s motion to compel further responses from Defendant Nakashyan to
10 RPD Nos. 1, 2, 9, 13, 15, 18, 20, 21, 24 and 25 is DENIED;
11 b. Plaintiff’s motion to compel further responses from Defendant Nakashyan to
12 RPD Nos. 10, 12, and 17 is GRANTED subject to this Court’s in camera
13 review of the subject documents;
14 c. Defendants shall file under seal, for in camera review, the following
15 documents within forty-five thirty (45) days:
16 i. PREA Confidential Investigation Memorandum for log number SAC-
17 PREA-21-01-008;
18 ii. PREA Confidential Closure Memorandum for log number SAC-PREA-
19 21-01-008; and
20 iii. Confidential Allegation Inquiry Memorandum for grievance log
21 number KVSP-HC-1000843/KVSP-SC-19000013;
22 iv. Defendants shall submit a clean copy of these documents and a copy
23 containing proposed redactions. The undersigned will then determine
24 whether limited or redacted disclosure of these documents to Plaintiff is
25 appropriate, subject to a protective order.
26 d. Plaintiff’s motion to compel further responses from Defendant Custer is
27 DENIED;
1 judgment to Defendant Custer on Plaintiff’s First Amendment retaliation claim (Doc.
2 62), filed December 2, 2024, is DENIED; and
3 3. Plaintiff’s construed motion for reconsideration of the Court’s order denying sanctions
4 (Doc. 63), filed December 19, 2024, is DENIED.
5
IT IS SO ORDERED.
6

7 Dated: December 2, 2025 /s/ Sheila K. Oberto .
UNITED STATES MAGISTRATE JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11224025. Public record. Not legal advice.