BARBARA A. McAULIFFE, Magistrate Judge.
Plaintiff Charles W. Windham ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds against Defendants Uribe, Marin, Rasley, Contreras, Capano, Rubio and Doe #1 for excessive force in violation of the Eighth Amendment, and against Defendants Navarro, Morales, Marin and Shiver for deliberate indifference to serious medical needs in violation of the Eighth Amendment.
Currently pending before the Court is Defendants' motion to compel responses to discovery, filed on October 20, 2016. (ECF No. 77.) Plaintiff opposed the motion on November 16, 2016, and Defendants replied on December 7, 2016. (ECF Nos. 82, 86.) Plaintiff filed a sur-reply on December 20, 2017. (ECF No. 87.)
Also pending before the Court is Defendants' motion to strike Plaintiffs' surreply, filed on January 4, 2017. (ECF No. 89.) Plaintiff opposed the motion to strike on January 20, 2017, and Defendants' replied on January 27, 2017. (ECF Nos. 91, 92.)
Defendants' motion to compel responses to discovery and their motion to strike Plaintiff's sur-reply are deemed submitted. Local Rule 230(l).
On September 2, 2015, Defendants filed a motion for summary judgment based on Plaintiff's failure to exhaust administrative remedies. (ECF No. 49). Plaintiff did not submit a timely opposition. However, on October 5, 2015, the Court granted Plaintiff a thirty-day extension of time to file his opposition to the motion for summary judgment. (ECF No. 44). Plaintiff again did not file a timely opposition.
On October 15, 2015, Defendants served Plaintiff with special interrogatories regarding exhaustion. (ECF No. 77, Declaration of A. De La Torre-Fennell ("Torre-Fennell Decl.") ¶ 4). Plaintiff did not serve timely responses. (Id.).
On February 5, 2016, Defendants moved to dismiss this action pursuant to Federal Rule of Civil Procedure 41(b) based on Plaintiff's failure to comply with court orders. (ECF No. 61). Plaintiff opposed the motion, explaining that he was transferred to the California Health Care Facility in Stockton, California on October 1, 2015, and from that date until about January 13, 2016, he was unable to communicate with the Court and Defendants for a number of reasons. (ECF No. 62). The Court issued findings and recommendations to deny Defendants' motion to dismiss, determining that Plaintiff had shown good cause for his non-compliance with court orders. (ECF No. 65). Before the District Court could address the findings and recommendations, however, Defendants filed a second motion to dismiss the action under Federal Rule of Civil Procedure 41(b) on August 18, 2016. Defendants reported that they had re-served Plaintiff with the motion for summary judgment and interrogatories, and he again failed to respond. (ECF No. 66).
On September 15, 2016, the Court declined to grant Plaintiff an extension of time to respond to the motion to dismiss and instead directed Plaintiff to file an opposition or statement of non-opposition to Defendants' motion for summary judgment within thirty (30) days. (ECF No. 68).
On September 28, 2016, Plaintiff filed an opposition to Defendants' second motion to dismiss. He attached to his opposition a number of documents, including his responses to Defendants' interrogatories, which were dated March 10, 2016. (ECF No. 70). Defendants replied to Plaintiff's opposition on October 3, 2016, arguing that dismissal was appropriate because Plaintiff had not opposed the motion for summary judgment or served interrogatory responses. (ECF No. 71).
On October 13, 2016, Plaintiff filed his opposition to the motion for summary judgment based on exhaustion of administrative remedies. (ECF Nos. 72-75).
On October 19, 2016, the Court issued findings and recommendations recommending that Defendants' second motion to dismiss be denied. (ECF No. 76).
On October 20, 2016, Defendants filed the instant motion to compel responses to discovery. Defendants argue that Plaintiff's responses to Defendants' Special Interrogatories, Set One, numbers 3, 4, 8, 10, 11, 14, 15, 16 and 17, were insufficient. (ECF No. 77). On the same date, Defendants also filed a motion requesting an extension of time to serve their reply in support of the motion for summary judgment. Defendants explained that they could not adequately respond to Plaintiff's opposition to the motion for summary judgment without Plaintiff's full responses to the interrogatories. (ECF No. 78).
On October 24, 2016, the Court partially granted Defendants' request for an extension of time to serve and file a reply in support of their motion for summary judgment. The Court indicated that it would issue an order setting a deadline for Defendants to serve and file their reply concurrently with its order regarding Defendants' motion to compel interrogatory responses. (ECF No. 81).
On November 16, 2016, Plaintiff opposed the motion to compel, arguing not only that his responses were sufficient, but also that he had been prejudiced in responding because he had not been issued any of his stored property, including his case files, evidence, briefs and notes. (ECF No. 82).
On November 22, 2016, Defendants requested an extension of time to submit their reply in support of the motion to compel. Defendants explained that additional time was needed to investigate Plaintiff's allegations that he had not been provided with any of his legal or personal property since returning to Corcoran State Prison on October 18, 2016. (ECF No. 83). The Court granted the requested extension of time, and directed Defendants to file their reply on or before December 7, 2016. (ECF No. 84).
On December 7, 2016, Defendants replied to Plaintiff's opposition to the motion to compel. In the reply, Defendants argue that they have yet to receive adequate or verified responses to their special interrogatories. Defendants contend that they are prejudiced by Plaintiff's failure to respond to their special interrogatories because they cannot defend against Plaintiff's allegations that he has exhausted his administrative remedies. Defendants also contend that they are either entitled to know the entire universe of facts that Plaintiff contends supports his claim of exhaustion or to receive an unequivocal statement that Plaintiff does not have any supporting evidence.
With regard to Plaintiff's assertions that he had not been given his legal property, which hampered his ability to respond, Defendants report that Plaintiff made no such request for his property upon returning to Corcoran State Prison on October 18, 2016. (ECF No. 86 at 2). In support, Defendants submitted an unsigned declaration from M. Kimbrell, the litigation coordinator at Corcoran State Prison. (ECF No. 86-1, Declaration of M. Kimbrell ¶ 1). According to that declaration, Plaintiff was transferred to Department of State Hospitals, Stockton on October 1, 2015, and pursuant to policy, his property was not transferred with him and was instead stored in the administrative segregation property room at Corcoran State Prison. (Id. at ¶ 3). Plaintiff returned to Corcoran State Prison on October 18, 2016, but there is no record of any request for return of Plaintiff's stored property since that time. (Id. at ¶ 6-8, 10). M. Kimbrell reports that on November 22, 2016, at the request of the Attorney General's Office, it was determined that Plaintiff had one box of property in storage in the administrative segregation unit where Plaintiff was housed from October 18, 2016 to October 26, 2016. (Id. at ¶ 9). As of November 22, 2016, Plaintiff's stored property had been transferred to Plaintiff's housing facility to be issued to him according to policy. (Id.at ¶ 11). Defendants also submitted a declaration from the Appeals Coordinator at Corcoran State Prison indicating that the prison's appeals office had not received an appeal regarding requests for return of Plaintiff's property for the time period from October 18, 2016, to November 22, 2016. (ECF No. 86-2, Declaration of M. Oliveira ¶¶ 4-5).
On December 20, 2016, Plaintiff filed a surreply to Defendants' reply. (ECF No. 87). Plaintiff reports that he received Defendants' reply on December 13, 2016, and as of that date, he had not been issued any of his personal property or any of his law books or legal/court property by any Corcoran State Prison guards or property officers. (Id. at 2). Plaintiff also objects to the declaration of M. Kimbrell, and notes that the declaration is not executed or dated. (Id. at 4-5). Additionally, Plaintiff declares under penalty of perjury that between October 18, 2016 and December 13, 2016, he made multiple verbal requests for his property. He also drafted multiple CDCR-22 forms and CDCR 602 forms requesting priority issuance of his property, but none were returned to him and he did not receive his property. (Id. at 3, 5). Plaintiff also declares that he cannot provide further responses to Defendants' special interrogatories due to this obstruction. (Id.). Plaintiff argues that the Court does not need to compel responses to discovery, but instead needs to order the California Department of Corrections and Rehabilitation ("CDCR") and the Warden to inventory and issue his legal, court and personal property. (Id. at 4). Plaintiff asserts that he has five boxes of property in storage in Corcoran State Prison's administrative segregation unit, along with two large trash bags from the Department of State Hospitals. (Id. at 6).
On December 30, 2016, Defendants filed a notice of errata regarding the declaration of M. Kimbrell. Defendants explained that the due to administrative error, an unsigned copy of M. Kimbrell's declaration was attached to Defendants' reply, but that the declaration was properly executed on December 6, 2016. (ECF No. 88).
On January 4, 2017, Defendants filed a motion to strike Plaintiff's surreply, arguing that it was it not authorized by the Court and is not a recognized pleading within the Federal Rules of Civil Procedure. (ECF No. 89-1).
On January 5, 2017, the District Court judge adopted the pending findings and recommendations, and denied Defendants' motions to dismiss Plaintiff's action under Federal Rule of Civil Procedure 41(b). (ECF No. 90).
On January 20, 2017, Plaintiff opposed Defendants' motion to strike his surreply. (ECF No. 91). Plaintiff contends that the surreply should not be stricken because (1) he is not an attorney and is proceeding pro se, (2) he is not familiar with all of the district court protocols and procedures, (3) he must be permitted to respond to Defendants' attempts to mischaracterize the facts, and (4) he cannot personally appear to orally argue against Defendants due to his incarceration and must rely on written means. (Id. at 2-3). Additionally, Plaintiff argues that the Court should authorize the surreply as it is an important part of the matters at issue. (Id. at 3). Plaintiff also reports that his property continues to be withheld. (Id. at 4).
On January 27, 2017, Defendants replied, reasserting that there is no provision in the Local Rules authorizing the filing of additional briefs beyond an opposition and reply. In response to Plaintiff's assertion that he is unfamiliar with court rules and procedures, Defendants argue that Plaintiff has shown his ability to discern the rules of this Court, and has filed more than one request for an extension of time in this matter. Defendants further argue that if Plaintiff required more time to respond to the motion to compel, then he could have filed a request for an extension of time. (ECF No. 92).
As detailed above, Defendants move to strike Plaintiff's surreply, arguing that it is not authorized by the Federal Rules of Civil Procedure or the Local Rules. (ECF No. 89).
The Local Rules of this Court governing motions in prisoner cases do not provide for the submission of a surreply. Local Rule 230(l). However, district courts have discretion to either permit or preclude a surreply. See U.S. ex rel. Meyer v. Horizon Health Corp., 565 F.3d 1195, 1203 (9th Cir. 2009) (district court exercised discretion in refusing to accept supplemental declarations as "inequitable surreply"), overruled on other grounds by U.S. ex rel. Hartpence v. Kinetic Concepts, Inc., 792 F.3d 1121 (9th Cir. 2015); JG v. Douglas County School Dist., 552 F.3d 786, 803 n. 14 (9th Cir. 2008) (district court did not abuse its discretion in denying leave to file surreply where it did not consider new evidence in reply); Provenz v. Miller, 102 F.3d 1478, 1483 (9 th Cir. 1996) (district court should not consider new evidence presented in reply without giving non-movant an opportunity to respond). A district court may allow a surreply to be filed, but only "where a valid reason for such additional briefing exists, such as where the movant raises new arguments in its reply brief." Hill v. England, 2005 WL 3031136, at *1 (E.D. Cal. Nov.8, 2005) (citing Fedrick v. Mercedes-Benz USA, LLC, 366 F.Supp.2d 1190, 1197 (N.D. Ga. 2005)).
Although a surreply was not authorized in this instance, the Court intends to exercise its discretion and consider Plaintiff's surreply in ruling on Defendants' motion to compel. At issue in the motion to compel is whether certain of Plaintiff's interrogatory responses are sufficient and, if they are not, whether they can be responded to more fully by Plaintiff with the assistance of his legal property and related papers. In their reply, Defendants provided new factual information concerning Plaintiff's property through the declarations of M. Kimbrell and M. Oliveira. Based on the representations in the declarations, there was a valid reason for Plaintiff to provide an additional response regarding the status of his property requests and property, including whether he had received any of his property. Given that a valid reason existed for additional briefing, Defendants' motion to strike the filing of Plaintiff's surreply shall be denied.
Defendants move to compel further responses to special interrogatories ("ROGs") numbered 3, 4, 8, 10, 11, 14, 15, 16 and 17. (ECF No. 77).
"Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense," and information within this scope "need not be admissible in evidence to be discoverable." Fed. R. Civ. P. 26(b)(1). An interrogatory may relate to any matter that may be inquired into under Rule 26(b), and an interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact. Fed. R. Civ. P. 33(a)(2) (quotation marks omitted). Parties are obligated to respond to interrogatories to the fullest extent possible under oath, Fed. R. Civ. P. 33(b)(3), and any objections must be stated with specificity, Fed. R. Civ. P. 33(b)(4); Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981) ("objections should be plain enough and specific enough so that the court can understand in what way the interrogatories are alleged to be objectionable"). A responding party is not generally required to conduct extensive research in order to answer an interrogatory, but a reasonable effort to respond must be made. Gorrell v. Sneath, 292 F.R.D. 629, 632 (E.D. Cal. 2013). Further, the responding party has a duty to supplement any responses if the information sought is later obtained or the response provided needs correction. Fed. R. Civ. P. 26(e)(1)(A).
Additionally, Plaintiff's reference to his ROG 7 response is insufficient and does not answer the interrogatory. Fed. R. Civ. P. 33(b)(3). The ROG 7 response is a description of a person, not an identification of any mental health diagnosis. Plaintiff will therefore be afforded an additional thirty (30) days to supplement his response to this interrogatory, and Defendants' motion to compel a further response to this interrogatory is GRANTED.
For the reasons stated, it is HEREBY ORDERED as follows:
IT IS SO ORDERED.
