KENDALL J. NEWMAN, Magistrate Judge.
Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983, and an action pursuant to the Americans with Disabilities Act ("ADA"). The defendants are Sergeants Koelling and Martinez. Plaintiff alleges that on April 10, 2009, defendants forced plaintiff to move to an upper bunk even though plaintiff had a lower bunk chrono. Plaintiff later fell from the upper bunk and suffered injuries.
Pending before the court is plaintiff's motion to compel filed February 14, 2012. The pending motion was filed pursuant to an order filed January 17, 2012. In the January 17, 2012 order, the undersigned addressed plaintiff's motions to compel filed September 7, 2011, and September 12, 2011. The undersigned granted these motions to compel as to request for admissions, set one, nos. 7, 8, 15, 16, 17, 20, 22, 24, 25, 26 and 27. Defendants were ordered to provide plaintiff with further responses to these requests within twenty-one days.
Plaintiff's motions to compel filed in September 2011 also addressed interrogatories, requests for production of documents and a request for admissions, set two. Plaintiff argued that defendants had failed to respond to these requests. In their opposition to the September motions to compel, defendants informed the court that they were now serving plaintiff with responses to these requests. The January 17, 2012 order granted plaintiff thirty days to file a motion to compel addressing defendants' response to his interrogatories, request for production of documents and request for admissions, set two.
The pending motion to compel addresses the matters discussed above. For the following reasons, plaintiff's February 14, 2012 motion to compel is granted in part.
The reach of Fed. R. Civ. P. 34, which governs requests for production, "extends to all relevant documents, tangible things and entry upon designated land or other property."
Plaintiff objects to defendants' responses to request nos. 1-7. Defendants objected that none of the documents sought in these requests were in their possession, custody or control. These requests are set forth herein:
In the opposition to the motion to compel, defendants state that they have access to current policies and procedures of the Department of Corrections and Rehabilitation ("CDCR") while on the job. However, defendants state that they do not have access to the policies and procedures from 2008-2009 that plaintiff seeks in request nos. 1-7. Defendants state that plaintiff could obtain these documents by way of a subpoena to CDCR. Defendants state that their counsel in the instant action does not represent CDCR.
In the instant case, plaintiff has sued defendants in their individual capacity only. (Dkt. No. 1.) Defendants are Correctional Sergeants, as opposed to prison officials with higher ranking, such as the Warden. For these reasons, the undersigned accepts defendants' representation that they do not have possession, custody or control of the documents sought.
Plaintiff objects to defendants' responses to request nos. 8-13. Defendants responded that they did not have possession of the documents sought in these requests, which concerned training. Defendants stated that they believed the documents sought were maintained by the CDCR. These requests are set forth herein:
In the opposition to the motion to compel, defendants state that they do not maintain copies of their training records. Defendants state that the training they go through is required, and tracked by CDCR, as part of their employment. Defendants state that plaintiff could obtain these documents by requesting them from CDCR.
Because defendants are sued in their individual capacities, the undersigned accepts their representation that they do not have possession, custody or control of these documents. Accordingly, the motion to compel as to these requests for production of documents is denied.
Defendants objected that request nos. 14-18 were "very broad." Defendants also stated that they did not possess the documents sought, which concerned training. Defendants believed that these documents were maintained by the CDCR. These requests are set forth herein:
The undersigned agrees with defendants that request nos. 14-18 are over broad. Not every document sought in these requests is relevant to the instant action. In addition, defendants represent that the documents plaintiff seeks in these requests are not in their possession, custody or control. Because defendants' objections have merit, the motion to compel as to request for production of documents nos. 14-18 is denied.
Plaintiff objects to defendants' responses to his request for production of documents, set two, which contained three requests. These requests and defendants' responses are set forth herein:
Regarding request no. 1, in their opposition to the motion to compel defendants state that plaintiff is seeking policies from 2009. Defendants state that they do not have policies from 2009 in their possession. Defendants also state that if there are policies for their review, they do not know if these were the CDCR policies in effect in 2009. Defendants also state that they are not aware of any policies referring to log books.
In request no. 1, plaintiff seeks the 2009 policies for ADA inmate Log Books. Defendants have responded that to the best of their knowledge, no such policies exist. The undersigned cannot compel defendants to produce documents that do not exist. Accordingly, the motion to compel as to this request is denied.
Regarding request no. 2, in their opposition defendants state that they have appropriately responded to request no. 2. In responding to this request, the undersigned presumes that defendants made a reasonable inquiry before responding to this request. See Fed. R. Civ. P. 26(g)(1) (by signing a response to a discovery request, a party certifies that their response is made after a reasonable inquiry). Accordingly, the motion to compel as to this request is denied.
In request no. 3, plaintiff sought all documents reviewed by each defendant regarding ADA Log Books. Other than the log books, defendants state that they have no other documents related to these log books. The undersigned presumes that defendants made a reasonable inquiry before responding to this request. The undersigned cannot order defendants to produce documents that do not exist. Accordingly, the motion to compel as to this request is denied.
Plaintiff moves to compel further responses to interrogatories nos. 1-5, 13 and 15-17.
Under the Federal Rules of Civil Procedure, a responding party is obligated to respond to interrogatories to the fullest extent possible, Fed. R. Civ. P. 33(b)(3), and any objections must be stated with specificity, Fed. R. Civ. P. 33(b)(4). The responding party shall use common sense and reason.
Interrogatory no. 1 asked each defendant to state their "true" name and all positions held in the CDCR and the dates they held them. In responding, defendants did not give their full first names. Instead, defendants gave the initial of their first name, i.e., B. Koelling and C. Martinez. In the motion to compel, plaintiff argues that defendants should be required to provide their full first name.
In the opposition, defendants argue that Title 15, Section 3004(a) provides that employees may use first names in conversation with each other when it acceptable by both parties. Defendants state that they will provide their first names if ordered by the court. Defendants have provided no valid objection to plaintiff's request for their first names. Defendants have also cited no valid authority on which the court could uphold an objection to plaintiff's request for their first names. Accordingly, the motion to compel as to interrogatory no. 1 is granted.
In response to interrogatories nos. 2-5, defendants responded, "We undergo a lot of training. I do not remember names, dates, durations and locations. I do not have possession of documents that would provide this information." In the opposition, defendants reiterate that they do not have possession of their training records. For that reason, defendants argue that they cannot respond to interrogatories nos. 2-5.
Significantly, while defendants state that they do not have possession of documents that would provide this information, they do not state that they lack access to this information. Presumably, defendants could access their personnel records that includes their records of training received to respond to these interrogatories. This requirement is especially true in light of defense counsel's statement that CDCR would not produce personnel records of an officer because of applicable privileges. Thus, defendants are the best source of this information. Accordingly, defendants are ordered to file an amended response to these interrogatories.
Interrogatory no. 13 asked defendants to identify the "true identifies of Correctional Officers Bailey and Cortez (including but not limited to, their first and last names)." Defendants responded that for privacy reasons, Correctional Officers do not give out their first names. Defendants also stated that they did not recall these officers "being involved."
In the opposition to the pending motion, defendants state that "as previously argued," officers do not give out their first names for privacy reasons. Other than Title 15, Section 3004(a), defendants' opposition cites no legal authority in support of this privacy objection. As discussed above, this section states that employees may use first names in conversation when it acceptable by both parties. Title 15, section 3004(a) does not support defendants' privacy objection. To the extent defendants are making a relevancy objection by stating that they do not recall these officers being involved, this objection is also not well supported.
Defendants also state that they would have to ask these officers what their first names are, which is something plaintiff himself can do. At this time, defendants' objection that the information sought is equally available to plaintiff is not well taken. For these reasons, plaintiff's motion to compel as to interrogatory no. 13 is granted.
In response to interrogatories nos. 15-17, defendants responded, "I do not know." In the opposition, defendants state that as officers, they are not involved in record keeping or litigation. Because defendants' duties do not involve record keeping, the undersigned accepts their representation that they do not know the identities of persons authorized to authenticate medical records and central files. However, it is unclear if defendants made a reasonable effort to respond to these interrogatories. It is unclear how difficult it would be for defendants to discover who, at California State Prison-Solano, is authorized to certify these records. Accordingly, defendants are ordered to file an amended response to these interrogatories.
Generally, Federal Rule of Civil Procedure 36(a) requires one of three answers to an request for admission: (1) an admission; (2) a denial; or (3) a statement detailing why the answering party is unable to admit or deny the matter. Fed. R. Civ. P. 36(a)(3);
The Rutter Group,
Plaintiff first argues that his request for admission, set two, should be deemed admitted because defendants' amended response is untimely.
On May 24, 2011, plaintiff submitted a second set of requests for admissions to each defendant. With their response, defendants objected to nearly every request. Defendants also sought a two week extension of time to amend their responses. Plaintiff granted this request. When plaintiff did not receive defendants' amended responses by the discovery cut-off date, he filed his September 2011 motions to compel. In the opposition to the September 2011 motions to compel, defendants stated that they were "now" forwarding to plaintiff their amended responses to request for admissions, set two.
Defendants' amended response to request for admissions, set two, is arguably untimely. However, the undersigned is reluctant to deem the requests for admissions admitted because defendants did provide a response. Defendants' conduct in responding to the request for admissions will be addressed below in the section addressing sanctions. Accordingly, the undersigned turns to the merits of plaintiff's motion.
Defendants objected that the request called for speculation, and that they lacked sufficient information or knowledge to authenticate the document. Without waiving the objections, defendants stated that the documents appeared to be CDCR Appeals documents, but they could not state that they are true and correct copies of what they purport to be. On that basis, defendants denied the request for admission.
Defendants' objection that they lack sufficient information or knowledge to authenticate documents has merit. Accordingly, the motion to compel this request for admission is denied.
Request No. 2 asks defendants to admit that on April 19, 2009, they, along with Correctional Officers Bailey and Cortez, in concert or simultaneously, went to plaintiff's cell in building six. Defendants responded that while they did not independently recall this incident, it appears from documents that they were interviewed by Sergeant Durfey regarding an incident with plaintiff on April 19, 2009. On the basis of this document, defendants admitted that they went to plaintiff's cell on that day. Defendants denied knowledge that this was building six. Defendants also denied that the others mentioned were present, as they did not recall.
Attached as an exhibit to plaintiff's complaint is a copy of a memorandum dated July 9, 2009 denying plaintiff's first level appeal regarding the matters at-issue in the instant action. (Dkt. No. 1 at 35.) This memorandum states that both defendants were interviewed regarding the alleged incident. This memorandum also states that, "on June 8, 2009, Officer's Cortez and Bailey were interviewed and stated that they followed the direction of their sergeants in order to compact the cell." (
Request no. 3 asks defendants to admit that on April 19, 2009, their post assignment was a Correctional Sergeant at SOL. Defendant Martinez admitted this request. Defendant Koelling denied this request because he was an Acting Sergeant at SOL at the time. Defendants adequately responded to request no. 3.
Request No. 26 asked defendants to admit that on April 19, 2009, "despite having observed the blue `ADA-DNM' sign on plaintiff's cell door, and plaintiff's assertions that he [was] mobility impaired, and had a lower bunk CAC, though unable to produce it, you approved of plaintiff being instructed to move to the top bunk."
Defendants responded,
The undersigned finds that defendants adequately answered this request for admission.
Defendants admitted request nos. 27-30 and 30-33. The motion to compel is denied as to these requests because defendants admitted the requests.
Request No. 31 asked defendants to admit that prior to April 19, 2009, they were properly trained on the policies and procedures in effect at SOL in regard to the Disability and Effective Communication System printed Roster Report, distributed weekly to each housing unit. Defendants responded, "Admit I have received training. Deny the balance as I do not know the timing, nor do I distribute these `Roster Reports' to the housing units." The undersigned finds that defendants adequately answered this request.
Defendants denied request nos. 4-25 on the grounds that they did not independently recall the incident with plaintiff and the documents reviewed did not provide a further response.
Request nos. 4-25 are set forth herein:
The memorandum dated July 9, 2009 denying plaintiff's first level appeal regarding the matters at-issue in the instant action contains some information regarding defendants' involvement. (Dkt. No. 1 at 35.) However, this memorandum does not directly address the issues raised in the requests for admissions above. The undersigned presumes that defendants reviewed this document in preparing their responses to these requests, and that review of this document did not refresh their recollections. Because defendants do not remember the incident and because the documents they reviewed did not refresh their recollections, the undersigned cannot order further responses to these requests. Accordingly, the motion to compel as to these requests for admissions is denied.
As discussed above, on January 17, 2012, defendants were ordered to provide further responses to request for admissions, set one, within twenty-one days. In the pending motion to compel, plaintiff first argues that he did not receive further responses from defendants within that time. Plaintiff argues that defendants had twenty-one days from the date the order was signed on January 13, 2012, to provide him with further responses.
Defendants had twenty-one days to provide further responses from the date the order was filed on January 17, 2012 order, i.e., until February 7, 2012. In the opposition to the pending motion, defendants state that they sent plaintiff their amended responses on February 7, 2012. Accordingly, the undersigned finds that plaintiff's objection that defendants did not provide timely further responses to request for admissions, set one, is without merit.
Plaintiff next requests that the undersigned "revisit" the January 17, 2012 order addressing request for admissions, set one. Plaintiff argues that based on new information from defendants in response to request for admissions, set two, nos. 30, 31, 32 and 33, defendants should be ordered to provide new responses to request for admissions, set one, nos. 3, 4, 9-14 and 18. These requests from set one are set forth herein:
The undersigned denied the motion to compel as to the requests for admissions set forth above based on defendants' objection that they could not answer the requests as they involved matters concerning Health Care Services, and defendants are in corrections.
Request for admissions, set two, nos. 30-33, asked defendant to admit that prior to April 19, 2009, they were properly trained on policies and procedures in effect at SOL regarding 1) the Disability and Effective Communication System; 2) the Disability and Effective Communication System printed roster report; 3) the ADA Log Book; and 4) Comprehensive Accommodation Chronos. Defendants admitted these requests for admissions.
That defendants received training regarding the Disability and Effective Communication System, the ADA Log Book and Comprehensive Accommodation Chronos does not indicate that they were knowledgeable regarding the Health Care Services matters addressed in request for admissions, set one, nos. 3, 4, 9-14 and 18. Accordingly, plaintiff's request that the undersigned "revisit" these requests is denied.
Plaintiff requests that defendants be sanctioned for failing to provide him with timely responses to his discovery requests. For the following reasons, the undersigned orders that defendants pay plaintiff reasonable expenses associated with bringing his motions to compel.
Federal Rule of Civil Rule 37(b)(2) provides that the court may impose an appropriate sanction on a party who fails to obey a discovery order. The sanctions authorized in Rule 37(b)(2) vary in severity, depending on the egregiousness of the offending party's conduct and the prejudice resulting therefrom. If a party fails to obey a court order regarding discovery, the court must order the disobedient party to pay the reasonable expenses, including attorneys' fees, caused by the failure, unless the failure was substantially justified or other circumstances make the award of expenses unjust. Fed. R. Civ. P. 37(b)(2)(C).
The lack of bad faith does not immunize a party or its attorney from sanctions; however, a finding of good or bad faith my be a consideration in determining whether imposition of sanctions would be unjust.
The background to plaintiff's request for sanctions, discussed in the January 17, 2012 order and briefly above, is set forth herein.
In the motions to compel filed in September 2011, plaintiff alleged that he served defendants with interrogatories and requests for production of documents on May 13, 2011. Plaintiff granted defendants an extension of time to July 11, 2011, to file their responses. Plaintiff then sought to extend the July 29, 2011 discovery cut-off date in order to file motions to compel regarding his request for production of documents and interrogatories. On August 11, 2011, the undersigned granted this motion and ordered plaintiff's motion to compel due within thirty days. In the September 2011 motions to compel, plaintiff alleged that on August 31, 2011, he attended his deposition at which he informed defense counsel that he still had not received defendants' responses to his interrogatories and requests for production of documents. Plaintiff alleges that defense counsel advised him to file a motion to compel.
In the September 26, 2011 opposition to plaintiff's September 2011 motions to compel, defendants did not dispute plaintiff's version of events. Defendants stated that they were now forwarding to plaintiff responses to his interrogatories and request for production of documents.
Regarding request for admissions, set two, in the September 2011 motions to compel, plaintiff alleged that on May 24, 2011, he submitted a second set of requests for admissions to each defendant. Plaintiff alleged that in their response, defendants objected to nearly every request. With their response, defendants included a letter requesting a two week extension of time to amend their requests. Plaintiff granted this request. When plaintiff did not receive defendants' amended response by the discovery cut-off, he filed the September 2011 motions to compel.
In their opposition to the September 2011 motions to compel, defendants did not dispute plaintiff's version of events regarding his request for admissions, set two. Defendants stated that they were now forwarding to plaintiff amended responses to his request for admissions, set two. Defendants claimed that in preparing their original responses, they did not have access to plaintiff's prison and medical files. Defendants stated that they obtained access to these files after preparing the initial responses and after plaintiff granted them access. The amended response was based on reviewing these files.
Pursuant to the April 8, 2011 discovery order, responses to written discovery requests are due within forty-five days after the request is served. (Dkt. No. 16 at 5.) Defendants did not provide plaintiff with responses to his interrogatories and request for production of documents until after plaintiff filed his motions to compel. By failing to provide plaintiff with timely responses to these requests, defendants failed to obey the discovery order.
Regarding the requests for admissions, set two, defendants did not provide plaintiff with their amended responses during the time plaintiff granted them. While the discovery order did not set a deadline for the filing of amended responses, defendants' failure to timely provide plaintiff with the amended responses was not a good faith attempt to comply with the discovery order.
Because defendants failed to obey court orders in providing plaintiff with responses to his discovery requests, plaintiff's request for sanctions is granted. Defendants are ordered to pay plaintiff the costs for bringing his three motions to compel addressing these discovery requests. In making this order, the undersigned finds that defendants' failure to provide plaintiff with timely responses to his discovery requests was not substantially justified. While the court is mindful that plaintiff served defendants with a large number of discovery requests, the volume of these requests did not excuse defendants from providing timely responses. The award of costs is not unjust.
Because plaintiff is proceeding without counsel, he is not entitled to an award of attorneys' fees. However, he is entitled to be paid the costs associated with bringing the motions to compel filed in September 2011 and February 2012, which may include copying expenses and postage. If plaintiff did not pay any money for copying expenses and/or postage, he is not entitled to costs. Within twenty-one days of the date of this order, plaintiff shall submit a short statement of expenses, supported by trust account statements if possible, demonstrating the amount of money paid in bringing the motions to compel filed in September 2011 and February 2012. If plaintiff had no expenses in bringing these motions, he shall notify the court within that time.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's February 14, 2012 motion to compel (Dkt. No. 31) is granted as to interrogatories nos. 1, 2-5, 13, 15-17, and request for admissions, set two, no. 2; defendants shall provide plaintiff with further responses to these requests within twenty-one days of the date of this order; plaintiff's motion to compel is denied in all other respects;
2. Plaintiff's request for sanctions is granted; within twenty-one days of the date of this order, plaintiff shall file briefing addressing the costs incurred, i.e., copying and postage, in the preparation of the motions to compel filed in September 2011 and on February 14, 2012.
