DEBORAH BARNES, Magistrate Judge.
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action under 42 U.S.C. § 1983. Plaintiff alleges the air quality at Mule Creek State Prison ("MCSP") was so poor that it worsened his Chronic Obstructive Pulmonary Disease ("COPD") and his overall health. Before the court are three motions filed by plaintiff: a motion for the court to order evidence testing, a motion to compel discovery responses, and a motion for a fee waiver. For the reasons set forth below, the court will deny each motion.
Plaintiff is currently incarcerated at the California Institution for Men. This case is proceeding on the Eighth Amendment claim in plaintiff's second amended complaint. (ECF No. 19.) Plaintiff alleges defendant Lizarraga, the warden at MCSP, was aware that plaintiff was a high risk medical inmate with chronic COPD and emphysema but nonetheless exposed plaintiff to hazardous materials, including dust, pollens, and asbestos. Plaintiff alleges he suffered daily asthma attacks and constant stress that aggravated his heart condition and that his lung condition worsened. The court found these allegations sufficient to state a claim that defendant was deliberately indifferent to plaintiff's serious medical needs in violation of the Eighth Amendment. (
On February 28, 2018, defendant filed an answer. (ECF No. 28.) On March 1, the court issued a Discovery and Scheduling Order, which set deadlines of June 22, 2018 for discovery and September 14, 2018 for pretrial motions. (ECF No. 29.) On August 21, 2018, the court granted plaintiff's motion to re-open discovery and set new deadlines of October 8, 2018 for discovery and December 15, 2018 for pretrial motions. In addition, the court ordered defendants to respond to plaintiff's interrogatories. (ECF No. 39.)
On August 21, plaintiff filed a motion asking the court to have a sample of pollutants he submitted tested. (ECF No. 40). Defendant opposes the motion. (ECF No. 43.) Plaintiff filed a reply. (ECF No. 45.) He then filed a motion to compel on September 24. (ECF No. 44.) Defendant filed an opposition to this motion as well. (ECF No. 49.) Finally, on October 2, plaintiff filed a motion for a fee waiver. (ECF No. 44.)
In his first motion, plaintiff asks the court to order the Environmental Protection Agency ("EPA") to test a sample of pollutants he removed from the exit vent of his cell at MCSP. (ECF No. 40.) He also appears to ask, in the alternative, that defendant be ordered to test the sample and share the results. (
The court finds the testing sought parallel to a request for expert assistance under Federal Rule of Evidence 706. Rule 706 is not a meant to provide an avenue to avoid the in forma pauperis statute and its prohibition against using public funds to pay for the expenses of witnesses.
Plaintiff asks the court to compel defendant to "comply with discovery." (ECF No. 44.) He argues that defendant's responses have been evasive. Specifically, he points to (1) defendant's counsel's statement in a letter that defendant cannot produce an environmental impact report on MCSP; and (2) defendant's counsel's statement that he cannot test the sample plaintiff provided him.
Under Rule 37 of the Federal Rules of Civil Procedure, "a party seeking discovery may move for an order compelling an answer, designation, production, or inspection." Fed. R. Civ. P. 37(a)(3)(B). The court may order a party to provide further responses to an "evasive or incomplete disclosure, answer, or response." Fed. R. Civ. P. 37(a)(4). "District courts have `broad discretion to manage discovery and to control the course of litigation under Federal Rule of Civil Procedure 16.'"
The party moving to compel bears the burden of informing the court (1) which discovery requests are the subject of the motion to compel, (2) which of the responses are disputed, (3) why the party believes the response is deficient, (4) why any objections are not justified, and (5) why the information sought through discovery is relevant to the prosecution of this action.
The purpose of discovery is to "remove surprise from trial preparation so the parties can obtain evidence necessary to evaluate and resolve their dispute."
"Relevance for purposes of discovery is defined very broadly."
Plaintiff complains that defendant avoided providing him with a copy of an environmental impact report on MCSP. Plaintiff points to a letter from defendant's counsel, in response to a letter from plaintiff, that states that defendant "cannot produce what he does not have." (
Plaintiff argues that letters he received after a request for the environmental impact report show that the MCSP litigation office had access to such a report. (
Plaintiff argues that this letter exchange shows that defendant had access to the environmental impact report. It does not. Defendant is not required to seek out documents responsive to plaintiff's requests that are not already in his possession, custody, or control. In any event, in his opposition to plaintiff's motion, defendant explains that the document referenced by the litigation office was not, in fact, an environmental impact report. Rather, it was an "Environmental Health Survey Report" dated October 2017. (ECF No. 49 at 2-3.) Even though it was not directly responsive to plaintiff's request, defendant provided plaintiff with a copy of that report on September 21, 2018. (
Plaintiff also takes issue with defendant's refusal to test the sample materials he sent to defendant's counsel. Defendant has no obligation during the discovery process, or for that matter at any time absent a court order, to assist plaintiff in collecting evidence in support of his case.
In his third motion, plaintiff seeks a "fee waiver for my research into state agencys." (ECF No. 47.) Specifically, plaintiff points to a request he made to the California Inspector General for a copy of its "2016 Mule Creek State Prison Medical Inspection Results Cycle 4 report." In response, plaintiff received a letter informing him that the cost of the report is $12.00 and further informing him that he could read it for free on the Inspector General's website. (Ex. 2 to Pl.'s Mot. (ECF No. 47 at 6).) As plaintiff has been advised above, the court cannot pay for plaintiff's investigations. Further, the court lacks the power to "waive fees" imposed by the state Inspector General to provide plaintiff a report for free. Finally, the court notes that plaintiff makes no showing that this report is relevant to his case. Plaintiff's case involves the questions of whether he suffered harm from environmental toxins when he was incarcerated at MCSP and whether defendant was aware of the potential for harm to plaintiff and refused to take appropriate action. Plaintiff is not alleging that defendant provided inadequate medical care. Accordingly, the court will deny plaintiff's third motion as well.
For the foregoing reasons, IT IS HEREBY ORDERED as follows: