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 Defendants’ motion for summary judgment, which has been recently submitted, will be 1

adjudicated in Findings and Recommendations to be issued separately at a later date. 

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

GUY T. STRINGHAM,

Plaintiff, No. CIV S-04-1530 DFL GGH P

vs.

R. LEE, et al.,

Defendants. ORDER

 /

Introduction

Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. §

1983. Pending before the court is plaintiff’s February 9, 2006, motion to compel discovery to 1

which defendants have filed an opposition.

Complaint 

The court has previously set forth plaintiff’s allegations in Findings and

Recommendations, filed on January 5, 2006, recommending denial of plaintiff’s motion for a

preliminary injunction, adopted by Order filed on March 29, 2006: 

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 “Authorized staff. Only facility-employed health care staff, contractors paid to perform 2

health services for the facility, or persons employed as health care consultants shall be permitted,

within the scope of their licensure, to diagnose illness or, prescribe medication and health care

treatment for inmates. No other personnel or inmates may do so.” CAL. CODE REGS. tit.xv, §

3354(a).

2

Plaintiff names as defendants in this action, pursuant to 42 U.S.C.

§ 1983, R. Lee, J. Herrera, K. Providence, W. Fisher, G. Thumser,

W. Bradanick, K. Allen, N. Grannis, S. O’Ran, and T. Schwartz. 

He also names as defendants, pursuant to Title II of the Americans

with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq., the

California Department of Corrections (CDC) and the California

Medical Facility - Vacaville (CMF-Vacaville).

Plaintiff, a Type I insulin dependent diabetic, alleges that defendant

CMF Correctional Officer (C/O) Lee, on August 16, 2003, twice

refused him medical care while he was experiencing a serious

insulin reaction and even after plaintiff had called “Man Down,”

used only during medical emergencies. Defendant Lee violated a

state regulation prohibiting non-medical personnel from diagnosing

or prescribing health care treatment for prisoners, CAL. CODE REGS.

tit.xv, § 3354, as well as plaintiff’s constitutional rights under the 2

Eighth and Fourteenth Amendments and his rights under the ADA. 

Complaint, pp. 2-4. 

In addition to ignoring plaintiff’s urgent requests for help,

defendant Lee maliciously issued a CDC-115 Rules Violation

Report (RVR) for “manipulation of staff” of which plaintiff was

eventually found not guilty. Medical Technical Assistant (MTA)

St. John (not a defendant) tested plaintiff when he finally got to the

clinic at 1735 hours on 8/16/03, finding that plaintiff’s blood sugar

level was 52 and therefore, low, as normal blood sugar level range

is 70 to 120. Upon retesting plaintiff at 1755 hours, after the MTA

had sent him to eat, he found that plaintiff still tested low at 71,

and found that plaintiff was having a “reaction.” Complaint, p, 3,

Exhibit 1-A. Once plaintiff began experiencing the insulin

reaction, he required immediate caloric intake, and defendant Lee

provided plaintiff no assistance. Complaint, pp, 3-4.

Defendants J. Herrera, S. O’Ran, G. Thumser, T. Schwartz, K.

Allen, and N. Grannis all denied plaintiff’s appeals, relating to

defendant Lee’s conduct and the resulting RVR, through the

Director’s Level. Complaint, p. 4. Lee’s acts were apparently

justified because he was following orders of defendant K.

Providence, CMF Correctional Lieutenant, who was in turn acting

on orders of defendant W. Fisher, another Corr. Lt. assigned as

third watch commander on 8/16/03. These orders were based on

an institutional memorandum authored by defendant W. Bradanick

on March 16, 2000, which had not been applied to plaintiff

previously due to his individually medically necessary treatments. 

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26 Emphasis in original. 3

3

Complaint, p. 5; Exhs. 4-6, 8. Plaintiff had been granted

“preferential movement,” i.e., his treatment was contrary to, or an

exception to, the Bradanick memo, which exception had been

renewed repeatedly through August 19, 2003, and, thus, was still in

effect at the time of plaintiff’s 8/16/03 insulin reaction and

defendant Lee’s misconduct. Id., pp. 5-6, Exhs. 4-6, 9. The

Bradanick memo, dated 3/16/2000, restricts inmate movement,

including those inmates going to the B-1 Clinic for finger sticks, by

having them released “only when their respective wing is released

for the morning or evening meals,” apparently for the purpose of 3

ameliorating “mass movement and security problems with inmates

inside of and outside of the B-1 Clinic area.” Exh. 8 to complaint. 

Notwithstanding the memo, on September 1, 2000, plaintiff was

found by the Chief Medical Officer Andreasen (not a defendant) to

meet the requirements to be released as a brittle diabetic for fasting

blood sugar tests. Complaint, p. 14, Exh. 5. Plaintiff’s medical

chrono, CDC 128-C, signed by non-defendants, Dr. Mark Altcher

and Dr. Joseph Bick, Chief Medical Officer (CMO), was dated

August 20, 2002 and was to remain in effect for one year, until

August 19, 2003, stated in relevant part: “Due to diabetes, he

[plaintiff], needs to get to B-1 Clinic at 0630 and 1715 hours for

fingersticks and insulin treatments, and should go the dining hall

immediately thereafter.” Exh. 4 to complaint. 

Plaintiff is a Type I brittle diabetic, a condition recognized as a

disability under the ADA. Compl., pp. 11-13. Defendant Fisher

stopped the brittle diabetic release program in early 2003, focusing

in a discriminatory manner only on diabetics. Id., p. 15. Evidence

that defendant Fisher prevailed upon CMO Bick to exclude the

release times is apparent in plaintiff’s CDC-128 chrono, dated

August 3, 2003, to remain in effect until August 4, 2004, wherein

plaintiff’s Type 1 brittle diabetic condition and requirements are

set forth but no release times for fasting blood sugar tests are

identified, although such times had been specified in the four

preceding years. Id. Plaintiff asks that the CMF reinstate the

brittle diabetic release program, seeking only prospective

injunctive relief from the entity defendants, CDC and CMFVacaville, including renewal of his CDC-128-C medical chronos

on a yearly basis, to be released for timely medical testing and

treatment and assurances that staff will respond appropriately to

plaintiff’s emergency medical calls. He seeks money damages,

including punitive damages, from the individual defendants.

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4

Motion to Compel

Plaintiff, by his motion, asks the court to compel defendants to respond to

discovery requests he propounded upon Medical Technical Assistant (MTA) V. St. John, an

individual as noted above within the recitation of plaintiff’s allegations, who is not named as a

defendant in this action. Motion, p. 1. Plaintiff avers that St. John is a witness to the events of

August 16, 2003, and seeks her responses with respect to interrogatories concerning plaintiff’s

blood sugar levels; whether plaintiff walked or used a wheelchair; whether plaintiff showed

symptoms of hypoglycemia (or insulin reaction); and whether defendant Lee called St. John to

verify whether or not plaintiff had been in distress. Id., p. 2. Plaintiff attaches the four

interrogatories at issue which ask MTA St. John: 1) whether on August 16, 2003, at around 5:30

p.m., plaintiff arrived at the B-1 clinic experiencing insulin reaction symptoms; 2) whether at that

date and time, plaintiff used a wheelchair; 3) whether on that date, after plaintiff’s arrival at the

clinic, defendant Lee called to ascertain whether plaintiff had been having an insulin reaction

around 5:30 p.m.; 4) whether on August 16, 2003, at 5:30 p.m., upon of his arrival at the clinic it

was apparent to her that plaintiff demonstrated symptoms of an insulin reaction. See Attachment

to Motion. While plaintiff concedes that St. John is not a defendant, he contends that he has no

access to this employee but that her responses are necessary in the interest of truth. Motion, p. 2,

& attached letter to defendants’ counsel, dated April 11, 2005. 

Opposition

Defendants contend that plaintiff is not permitted under Fed. R. Civ. P. 33(a) to

compel answers to interrogatories propounded on a non-party witness. Opposition, p. 1. 

Discussion

If there is no applicable claim of privilege, “a non-party can be compelled to

produce evidence regarding any matter ‘relevant to the subject matter involved in the pending

action’ or ‘reasonably calculated to lead to the discovery of admissible evidence.’ See Fed. R.

Civ. P. 26(b)(1).” Shoen v. Shoen, 5 F.3d 1289, 1292 (9 Cir. 1993). th

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5

However, in this context as to a non-party, where plaintiff seeks to have the court

compel defendants to provide interrogatory responses from a non-party, defendants are correct. 

Fed. R. Civ. P. 33(a) states, in relevant part, “[A]ny party may serve upon any other party written

interrogatories...to be answered by the party served....” The court cannot compel defendants to

provide answers to interrogatories directed at a non-party. Plaintiff may seek to obtain a sworn

declaration from MTA St. John. Plaintiff may also attempt to use the rather cumbersome

procedures of Fed. R. Civ. P. 31 which permit depositions upon written questions on non-parties. 

However, plaintiff must follow the procedures set forth therein. Finally, plaintiff may send

interrogatories to CDCR itself which has a duty to ascertain from its employees full and complete

answers to appropriate questions. Should the matter proceed to trial, he may seek to obtain her

testimony at trial, either as a voluntary witness or by way of subpoena; however, defendants

cannot be required to supply the responses of a non-party witness to interrogatories or testimony

for plaintiff. 

The court notes that in the Order portion of the Order and Findings and

Recommendations, filed on January 5, 2006, the undersigned directed the Civil Rights Clinic to

review the case file and determine whether this case has exceptional circumstances warranting

their appointment as volunteer counsel. It appears that that order was never served upon the

clinic. Therefore, the court will again request review of this case by the Clinic. Plaintiff is again

cautioned that ultimately no volunteer counsel may be procurable and no scheduled date in this

litigation has been vacated. At this point, the matter will simply proceed upon the submitted

motion for summary judgment brought by defendants, if there is either a negative response or no

response at all from the Clinic within thirty days.

Accordingly, IT IS ORDERED that:

1. Plaintiff’s February 9, 2006, motion to compel discovery from defendants as to

a non-party is denied;

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2. The King Hall Civil Rights Clinic is directed to contact the Clerk’s Office to

make arrangements for copies of the file;

3. The Clinic shall inform the court of their decision within thirty days; and

4. The Clerk of the Court is directed to serve a copy of this order upon the King

Hall Civil Rights Clinic by mail and to make note of having done so in the court’s electronic

docket of this case.

DATED: 9/19/06 /s/ Gregory G. Hollows

 

GREGORY G. HOLLOWS 

 UNITED STATES MAGISTRATE JUDGE

GGH:009

stri1530.mtc

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