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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

PATRICK RONALD HOLLEY,

Plaintiff, No. CIV S-04-1425 GEB PAN P

vs.

CALIFORNIA DEPARTMENT

OF CORRECTIONS, et al.,

Defendants. ORDER

 /

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to

42 U.S.C. § 1983. This matter is before the court on plaintiff’s motion to file a third amended

complaint, and on the court’s in camera review of documents submitted by defendant Herrera

pursuant to court order.

Plaintiff seeks leave to file a third amended complaint to omit all of the claims

that have been dismissed from this action due to his failure to file administrative remedies prior

to suit and to set forth the sole retaliation claim on which this action is proceeding. (See Order

filed July 14, 2006.) Defendant opposes the motion, though principally because in his view the

claims in this action were narrowed by the July 14, 2006 order of the district court and this action

need not be delayed by further amendment to the pleadings. In the alternative, defendant asks

/////

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 Defendant Herrera is reminded that documents sought but not produced in discovery

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are generally not admissible at trial.

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that, in the event amendment is allowed, his September 29, 2005 amended answer be deemed

responsive to the third amended complaint.

Good cause appearing, plaintiff’s motion to amend will be granted. The Clerk of

the Court will be directed to file the proposed amended complaint appended to plaintiff’s motion

and to docket the pleading as a third amended complaint. Defendant’s September 29, 2005

answer will be deemed responsive to the third amended complaint unless, within ten days from

the date of this order, defendant elects to file a new answer.

On May 18, 2006, plaintiff filed a motion to compel production of documents. In

that motion, he sought, inter alia, to compel a further response to a request for production of “all

documents related to defendant Herrera’s ‘performance report(s).’” By order filed July 26, 2006,

defendant was directed to submit for review in camera, a copy of his performance reports for the

last five years, or the period of his employment at the Department of Corrections and

Rehabilitation, whichever was less. On August 10, 2006, defendant Herrera submitted the

required documents. The court has reviewed the document in camera and finds nothing therein

relevant to, or likely to lead to the discovery of information relevant to, plaintiff’s retaliation

claim against defendant Herrera. Accordingly, plaintiff’s motion to compel a further response to

his request for production of defendant Herrera’s performance reports will be denied. The 1

documents submitted for in camera review will be maintained under seal until further order of

court.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Plaintiff’s July 31, 2006 request for leave to amend is granted;

2. The Clerk of the Court is directed to file the proposed amended complaint

appended to plaintiff’s July 31, 2006 motion nunc pro tunc to that date and to docket the

proposed amended complaint as a third amended complaint;

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3. Defendant Herrera’s September 29, 2005 amended answer will be deemed

responsive to the claim raised in the third amended complaint unless, within ten days from the

date of this order, defendant elects to file a new answer.

4. Plaintiff’s motion to compel production of defendant Herrera’s performance

reports is denied; and

5. The Clerk of the Court shall maintain the documents submitted for in camera

review on August 10, 2006 under seal until further order of court.

DATED: September 28, 2006.

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holl1425.mta

Case 2:04-cv-01425-GEB-EFB Document 108 Filed 09/29/06 Page 3 of 3