ALLISON CLAIRE, Magistrate Judge.
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Currently before the court is plaintiff's motion to compel. ECF No. 29.
The deadline for filing discovery motions was April 10, 2015. ECF No. 19. Plaintiff did not file his motion to compel discovery until April 22, 2015.
Plaintiff alleges that on September 22, 2013, defendant M. Martinez used excessive force against him when she kicked him in the right ankle during a search. ECF No. 1 at 3-4. Plaintiff further alleges that defendant Major placed him in administrative segregation and that defendants Major, Lozano, Matteson, and Kyte continued to retain him in administrative segregation in retaliation for filing an inmate appeal.
The scope of discovery under Federal Rule of Civil Procedure 26(b)(1) is broad. Discovery may be obtained as to "any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case." Fed. R. Civ. P. 26(b)(1). "Information within this scope of discovery need not be admissible in evidence to be discoverable."
Where a party fails to answer an interrogatory submitted under Rule 33, or fails to produce documents requested under Rule 34, the party seeking discovery may move for compelled disclosure. Fed. R. Civ. P. 37. The party seeking to compel discovery has the burden of showing that the discovery sought is relevant.
In his first motion to compel, plaintiff seeks to compel answers to interrogatories served on April 5, 2015; further responses to requests for admissions served on February 2, 2015; further responses to a first request for production served on an unspecified date; and responses to a second request for production served on April 14, 2015. ECF No. 29; ECF No. 32 at 3-5.
Defendants argue that the motion to compel should be denied because it was filed after the close of discovery. ECF No. 32 at 2-3. They further argue that the motion should be denied as to the April 5, 2015 interrogatories and April 14, 2015 request for production because those requests were untimely and as to the requests for admissions and the first request for production because they have already provided appropriate and sufficient objections or responses.
Defendants argue that plaintiff's motion to compel should be denied as untimely. ECF No. 32 at 2-3. This argument is rejected. In ordering defendants to respond to the motion, the court specifically considered that the motion had been filed after the April 10, 2015 close of discovery and, in its discretion, deemed the motion timely filed. ECF No. 30.
On December 19, 2014, this court filed a discovery and scheduling order which set the deadline for discovery and any motions necessary to compel discovery for April 10, 2015. ECF No. 19 at 5. The scheduling order further specified that requests for discovery pursuant to Federal Rules of Civil Procedure 31 (deposition by written question), 33 (interrogatories), 34 (production), and 36 (admissions) had to be served at least sixty days prior to April 10, 2015.
Plaintiff seeks to compel responses to interrogatories that were not served until April 5, 2015 (ECF No. 29 at 1-2, 9-13), and a second request for production which was not served until April 14, 2015 (
Contrary to plaintiff's argument, while the court deemed plaintiff's motion to compel timely, that determination did not extend to the underlying requests for discovery. Defendants are therefore correct that the April 5, 2015 interrogatories and April 14, 2015 requests for production were untimely. Plaintiff's general assertion that he is entitled to special consideration because he is an inmate proceeding pro se is also unpersuasive given his failure to explain why he did not submit his discovery requests within the time provided or request additional time to seek discovery. Although plaintiff does state that his second request for production was delayed because defendants did not provide certain documents, since neither party has produced a copy of the second set of requests, the court is unable to determine whether it was dependent upon the responses to the first set as plaintiff appears to argue.
The April 5, 2015 interrogatories and April 14, 2015 requests for production were untimely and plaintiff has not established sufficient grounds to excuse their untimeliness and re-open discovery. The motion to compel as to these requests will therefore be denied.
In his motion to compel, plaintiff seeks to compel further responses to requests for admissions that he served on February 2, 2015. ECF No. 29 at 2-3. The court has already found defendants' initial objections to be inappropriate and ordered defendants to provide copies of their supplemental responses, which were served on plaintiff after he filed his motion to compel. ECF No. 42 at 9-11. Because plaintiff's reply, which was filed after he received defendants' supplemental responses, indicates that the supplemental responses were satisfactory except as to a few requests, the court will consider only the remaining disputes and deny the motion to compel as moot as to the rest.
ECF No. 45 at 3.
Although plaintiff's motion to compel (ECF No. 29 at 2), reply (ECF No. 33 at 5), and letter to defendants' counsel (ECF No. 31 at 4) all indicate that Request for Admission No. 3 was directed at all defendants, only defendant M. Martinez' supplemental responses contain a response to this request. ECF No. 45 at 3. It appears that upon providing clarification, plaintiff only requested a response from M. Martinez or there was a misunderstanding between counsel and plaintiff. However, given the nature of the request and defendant M. Martinez' response, the court assumes that any response by defendants Kyte, Lozano, Matteson, and Major would be identical.
Defendant's objections to the request are well taken. The request is compound, as it seeks admission of three distinct matters, which is inappropriate under the rule. Fed. R. Civ. P. 36(a)(2). Furthermore, while the word "kicking" may not appear vague on first impression, in the context of the request, the court can see that there may be some ambiguity. While the basic motion described by the word "kicking" is not sufficiently specific, it is easy to see how the response to the request could differ depending upon the amount of force used. For example, a light kick that could also be classified as a tap or nudge could be perfectly acceptable and within policy, while it is hard to imagine a scenario where a kick made with enough force to cause injury would be acceptable. Finally, the portion regarding "assault and battery" seeks a legal opinion and objection on that ground is appropriate, especially given the lack of facts that would be necessary to form an opinion. Defendant's response that she "admits that a correctional officer may not wantonly apply force" is sufficient and no further response will be required.
ECF No. 43 at 8.
Plaintiff seeks a further response from defendant Major on the ground that his response is "evasive and less than truthful." ECF No. 33 at 4. However, while defendant Major did object to the request, he also provided a response. The request seeks an admission that defendant Major placed plaintiff in administrative segregation on false charges. This is a major disputed factual issue in this case and it is unsurprising that defendant Major would deny that the charges were false. Without more, plaintiff's dissatisfaction with the response and belief that defendant Major is lying are not grounds for requiring defendant Major to admit the statement or provide a further response. To the extent plaintiff's letter to defendants' counsel indicates that the request was also for defendant Major's opinion (ECF No. 31 at 4), that is an improper request for an admission and defendant Major will not be required to respond further.
ECF No. 43 at 13.
It does not appear that defendant M. Martinez submitted a separate response to Request for Admission No. 8. ECF No. 45. However, in a letter dated May 27, 2015, defense counsel included a supplemental response from defendants M. Martinez and Kyte in response to plaintiff's clarification of the request. ECF No. 43 at 23.
ECF No. 43 at 23.
Defendants' objections to the original request are appropriate. The request is compound as it seeks admission of three or more distinct matters depending upon how it is broken down. The request also fails to specify the time period for which it seeks an admission that defendant M. Martinez was conducting her duties and the last portion of the request appears to be incomplete.
Defendants have admitted portions of the request while denying others, and as with Request for Admission No. 6, plaintiff's dissatisfaction with defendants' denial of certain matters does not warrant granting his motion to compel. As for the portion of the clarified request that defendants stated they were unable to admit or deny, this response is also sufficient. The 128-B authored by defendant M. Martinez stated that she believed that plaintiff would attempt to manipulate her, not that she had experienced attempts by him to manipulate her or stop her from performing her duties. ECF No. 1 at 18. The response that defendants cannot answer because they are unaware of what plaintiff may have been trying to do without their knowledge is not inconsistent with defendant M. Martinez' statement of what she believed plaintiff would do if given the chance. Defendants' responses to Request for Admission No. 8 are sufficient and no further response will be required.
ECF No. 43 at 9-10.
Defendant Major's objections and response are proper. The request is compound, defendant Major would be required to speculate regarding any conversations between plaintiff and CCI McVey that he was not present for, and he has responded that he does not recall any such request being made in his presence. The response identified by plaintiff in his letter to counsel does not establish that defendant Major is being untruthful in his response (ECF No. 21 at 29) and no further response will be required.
Plaintiff seeks to compel responses to Requests for Production Nos. 1-9 from his first set of requests. ECF No. 29 at 3-4. Defendants oppose the motion on the ground that responsive documents do not exist or have already been produced.
ECF No. 29 at 24-25.
In his motion to compel, plaintiff asserted that defendants had yet to provide any documents in response to this request.
It is troubling that defendants did not produce any documents to plaintiff until he filed his motion to compel and "clarified" that the request included policies and procedures applying to any CDCR employee. Clearly, a policy or procedure that applied to all CDCR employees would have applied to defendant M. Martinez and been responsive. Defendants' apparent reading of the request to apply only to policies and procedures written specifically about defendant M. Martinez is simply unreasonable. However, given that defendants appear to have produced the responsive documents and plaintiff has received them, no further response will be required. Plaintiff's claim that the policies produced do not address what actually happened, and that defendants did not follow the policies provided, does not mean that further policies exist. Given the nature of plaintiff's complaint, that he was placed in administrative segregation on false charges and in retaliation for filing a staff complaint, or essentially outside of policy, it is unsurprising that there is not a policy or procedure setting forth the steps that plaintiff alleges were taken. To the extent plaintiff may be attempting to allege that there is an unwritten policy of placing inmates in administrative segregation in retaliation for filing staff complaints, defendants cannot produce a document that does not exist. No further response will be required.
In their response to the motion to compel, defendants argue that further production should not be ordered because they served plaintiff with copies of training records for defendants Matteson, M. Martinez, Kyte, and non-defendant Lee on April 30, 2015, and records for defendants V. Martinez and Major on May 21, 2015. ECF No. 32 at 9. They stated that records for defendant Lozano would be sent as soon as they were obtained.
Since it appears that defendants have provided plaintiff with the requested documents, they will not be required to produce anything further in response to these requests. Although plaintiff alleges that he has not received defendants' signed duty statements, he requested training records, which are not the same. Defendants will not be required to produce their duty statements. However, while the court will not require further production, it is concerning that defendants did not begin sending plaintiff the requested records until approximately two and a half months after they submitted their original response to the request with the final response being sent over four months after the initial response. Defendants have offered no explanation for this delay. Responding that documents will be provided at a later date does not give a party leave to produce the documents whenever they want or to unnecessarily delay their production.
In his motion to compel, plaintiff argued that every staff complaint goes into an officer's employee file and that he would limit the time period to five years from September 22, 2013. ECF No. 29 at 4. Defendants responded that documents in defendant M. Martinez' personnel file are privileged under the official information privilege and that there are no responsive documents in her file. ECF No. 32 at 11.
Defendants' objection as to overbreadth is appropriate to the extent plaintiff's request could be interpreted to seek allegations of use of force against any officer at CSP-Solano against any inmate. It is also overbroad to the extent it covers any interaction between defendant M. Martinez and any inmate. It should be limited to allegations of excessive use of force against defendant M. Martinez. The request is also overly burdensome in requiring the review of individual inmate appeals to locate complaints about defendant M. Martinez. However, if plaintiff is correct that staff complaints are kept in officer's personnel files, then the objection on the grounds of undue burden, as the request applies to staff complaints for excessive use of force against defendant M. Martinez, is without merit. Defendants have not addressed whether plaintiff's allegation that these complaints are kept in officer personnel files is true. Instead, they assert that documents in defendant M. Martinez' personnel file are privileged under the official information privilege
On October 5, 2015, plaintiff filed a supplemental motion to compel, which he states he originally submitted to the court on July 20, 2015. ECF Nos. 39, 41 at 2. Upon review, the supplemental motion appears to actually constitute a request for additional discovery. ECF No. 39. Even assuming plaintiff served these requests on July 20, 2015, they are untimely because discovery closed on April 10, 2015, and discovery requests were to be served no later than February 9, 2015. ECF No. 19 at 5. Moreover, the request for production appears to seek documents defendants are already obligated to produce in response to Requests for Production Nos. 2-4 of plaintiff's first request for production. ECF No. 39 at 2.
Plaintiff argues that the requests are not untimely because they relate back to his motion to compel (ECF No. 29), which was deemed timely by the court (ECF No. 30). ECF No. 41 at 2. Plaintiff, however, misunderstands the purpose of a motion to compel. The purpose of a motion to compel is to compel a party to produce responses to discovery that has already been served. It is not an opportunity to submit additional requests. The court's determination that plaintiff's motion to compel was timely did not make his underlying discovery requests timely or re-open the period for discovery.
The court will construe the supplemental motion to compel as a request to re-open discovery, and deny it because plaintiff has not shown good cause for re-opening discovery.
Defendants' supplemental responses to the requests for admissions are sufficient and no further responses will be required, with the exception of the supplemental information to be provided in response to Requests for Production 3 and 4. Although the court finds that sufficient responses have now been provided, defendants' conduct in responding to plaintiff's discovery requests boarders on obstructionist and defendants and their counsel are cautioned to avoid similar such conduct in the future. Plaintiff's supplemental motion to compel, which the court construes as a motion to re-open discovery, is denied.
In their response to the motion to compel, defendants requested that if the court deemed plaintiff's April 5, 2015 Interrogatories and April 14, 2015 Requests for Production timely, that their time to respond be stayed pending resolution of their motion for partial summary judgment. ECF No. 32 at 11-12. Since plaintiff's additional discovery requests were found to be untimely, defendants' request is denied as moot.
Plaintiff's motion to compel responses to his April 5, 2015 Interrogatories and April 14, 2015 Requests for Production is denied because those requests were served too late. Plaintiff's motion to compel additional responses to his February 2, 2015 Requests for Admissions is denied because defendants made good objections and have responded to the requests. Plaintiff's request to compel further responses to his first Request for Production is granted only as to Requests Nos. 3 and 4. Defendants will be required to provide supplemental information to clarify whether an incident package was created and to explain what steps they took to locate the video and what happened to the video. The motion is denied as to all other requests for production.
Defendants' will not be required to respond to plaintiff's additional discovery requests because they are late and plaintiff has not explained why the court should re-open discovery. Because defendants are not required to respond to the additional request, their request to stay discovery is denied as moot.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion to compel (ECF No. 29) is granted to the extent defendants must provide supplemental responses to Requests for Production Nos. 3 and 4 as set forth in Section III.B.4. above. The motion is denied in all other respects.
2. Plaintiff's supplemental motion to compel (ECF No. 39), which the court construes as a motion to re-open discovery, is denied.
3. Defendants' request to stay discovery (ECF No. 32) is denied as moot.
