GARY S. AUSTIN, Magistrate Judge.
C. Dwayne Gilmore ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on June 7, 2012. (Doc. 1.) This action now proceeds on the First Amended Complaint filed on March 8, 2013, against defendants Correctional Officer (C/O) C. Lockard, C/O C. Lopez, C/O J. Hightower, and C/O J. J. Torres for excessive force, and against defendant C/O J. J. Torres for denial of adequate medical care, in violation of the Eighth Amendment.
On April 25, 2014, the court issued a Discovery and Scheduling Order, establishing pretrial deadlines for the parties, including a deadline of December 25, 2014 for the completion of discovery, and a deadline of March 5, 2015, for the filing of pretrial dispositive motions. (Doc. 36.) The deadlines have now expired.
On September 18, 2014, Plaintiff filed a request propound three additional interrogatories upon defendant Hightower and two additional interrogatories upon defendant Lockard. (Doc. 78.) On October 1, 2014, defendants Hightower and Lockard filed an opposition to the motion. (Doc. 79.)
On October 16, 2014, Plaintiff voluntarily withdrew his request to propound additional interrogatories upon defendant Lockard. (Doc. 80.) Therefore, Plaintiff now seeks only to propound additional interrogatories upon defendant Hightower. On November 10, 2014, Plaintiff filed a reply to the opposition and a related request for judicial notice. (Docs. 85, 86.)
Plaintiff's request to propound three additional interrogatories upon defendant Hightower is now before the court.
The events at issue in the First Amended Complaint allegedly occurred at Kern Valley State Prison (KVSP) in Delano, California, when Plaintiff was incarcerated there. With respect to Plaintiff's excessive force claim against defendant Hightower, Plaintiff alleges as follows. On July 8, 2010, Plaintiff had just finished his inmate porter duties when he heard a commotion behind him and noticed an incident occurring between two handcuffed inmates and an officer. An alarm sounded, and Plaintiff got down on the ground. C/O Lockard aimed his Launcher Gun at Plaintiff's right thigh and shot him with a sponge round. Plaintiff was struck in the front inner right lower thigh/upper kneecap area, ripping a large hole in his leg. Plaintiff fell backwards onto the floor, actively bleeding. C/O Lockard called down to C/O Lopez, "Check Gilmore. I shot him. He was trying to get involved." Amd Cmp, Doc. 12 at 7 ¶21. Plaintiff was lying defenseless on the floor, in immense pain, attempting to put pressure on the wound. C/O Lopez walked over to Plaintiff and stood over him, stating, "You want to get involved motherf—er? You're involved now." Amd Cmp at 7 ¶23. C/O Lopez then sprayed Plaintiff with pepper spray without justification, in his face and up and down his backside. C/O Hightower approached Plaintiff and also began spraying him with pepper spray. Defendants Lopez and Hightower both emptied their pepper spray canisters on Plaintiff. Plaintiff was blinded by the pepper spray and felt severe burning. The blood vessels in Plaintiff's eyes had burst.
The court found that Plaintiff states a cognizable claim against defendant Hightower for use of excessive force in violation of the Eighth Amendment. (Doc. 13.)
"What is necessary to show sufficient harm for purposes of the Cruel and Unusual Punishments Clause [of the Eighth Amendment] depends upon the claim at issue. . . ."
"[W]henever prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm."
Pursuant to Rule 33(a) of the Federal Rules of Civil Procedure, "[u]nless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be granted to the extent consistent with Rule 26(b)(2)." Fed. R. Civ. P. 33(a). Rule 26(b)(2)(A) provides that "[b]y order, the court may alter the limits in these rules on the number of . . . interrogatories. Fed. R. Civ. P. 26(b)(2)(A). However, "the court must limit the frequency or extent of discovery . . . if it determines that (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues." Fed. R. Civ. P. 26(b)(2)(C).
"`[B]road discretion is vested in the trial court to permit or deny discovery, and its decision to deny discovery will not be disturbed except upon the clearest showing that denial of discovery results in actual and substantial prejudice to the complaining litigant.'"
Plaintiff requests leave to propound three additional interrogatories upon defendant Hightower. Plaintiff argues that the proposed interrogatories are relevant to his claim and reasonably calculated to lead to the discovery of admissible evidence. Plaintiff also argues that the interrogatories are not unreasonably cumulative or duplicative, and he cannot reasonably obtain them from another source. Plaintiff also argues that the burden or expense on defendant Hightower to respond to the interrogatories is within reason, considering the needs of the case, the amount in controversy, Plaintiff's resources and limitations, the importance of the issues at stake in this action, and the importance of the discovery in resolving the issues.
Plaintiff submits these three proposed interrogatories for defendant Hightower:
Defendant Hightower ("Defendant") argues that Plaintiff has not made an offer of proof as to what information he expects to gain from the proposed interrogatories, or otherwise attempted to make the requisite particularized showing of why this additional discovery is needed. Defendant objects to the proposed interrogatories in that they lack foundation, assume unsubstantiated facts, call for speculation, and are argumentative. Defendant argues that Plaintiff's requests are somewhat unnecessary since Defendant informed Plaintiff in his previous interrogatory responses that "under CDCR policies and procedures, officers are only supposed to include the information in their report that documents any force the authoring officer used, force the authoring officer observed, and any observations of misconduct on the part of an inmate that may be relevant to supporting disciplinary action taken against that inmate." (Angus Decl., Docs. 79-1, 79-2, Exh. C at No. 12.) Defendant argues that defendant Lopez's response alone provides Plaintiff with the explanations he seeks in these interrogatories, i.e., that Defendants did not include the requested information in their reports because it either was not observed or not required to be included in a report.
Plaintiff contends that he has previously propounded only 23 interrogatories, at most, upon defendant Hightower, depending on how the number of subparts is calculated. Plaintiff argues that the 3 proposed additional interrogatories are relevant to when defendant Hightower arrived on the scene of the incident at issue, and whether defendant Hightower made a false report about what he saw and heard during the incident at issue.
In support of his reply, Plaintiff requests the court to take judicial notice of three facts: (1) On July 8, 2010, Investigative Services Unit (ISU) C/O M. Mendoza reported to Facility A Medical Clinic and took photographs of Plaintiff, six of which are attached as Exhibit 1; (2) On July 8, 2010, medical staff personnel at KVSP examined and documented the wound to Plaintiff's right kneecap area on CDC 7230, Interdisciplinary Progress Notes forms, two of which are attached as Exhibit 2; and (3) On July 8, 2010, medical staff personnel at KVSP examined and documented the wound to Plaintiff's right kneecap area on a CDCR 7464, Triage & Treatment Services Flow Sheet, which is attached as Exhibit 3.
The court previously found, in its order of September 2, 2014, that Plaintiff had exceeded the number of 25 interrogatories, propounded to defendant Hightower, permitted under Rule 33(a). (Doc 74 at 5:3-4.) Plaintiff now argues that he propounded at most 23 interrogatories upon defendant Hightower, based on Plaintiff's present calculations of the interrogatories and their subparts. Plaintiff has not set forth facts or law of a strongly convincing nature to induce the court to reverse its September 2, 2014 finding.
Plaintiff's request for the court to take judicial notice of the three facts enumerated above at ¶II.E. shall be denied. "A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). It appears to the court that Plaintiff's three facts are subject to reasonable dispute. Plaintiff has not shown that the facts are generally known or that the accuracy of his sources cannot be reasonably questioned. Therefore, the court finds no good cause to take judicial notice of Plaintiff's three facts.
The court finds that Plaintiff's three proposed interrogatories are relevant to his claim against defendant Hightower,
Defendant Hightower shall be granted twenty days in which to serve responses to the three interrogatories. Plaintiff must accept Defendant's responses to the extent they rely on Defendant's memory. A party cannot be compelled to remember what he is unable to recall. Motions to compel, if any, shall be filed within thirty days of the date of service of Defendant's responses.
Defendant is reminded of his obligation to respond to the interrogatories to the fullest extent possible. Fed. R. Civ. P. 33(b)(3). Further, any objections must be stated with specificity. Fed. R. Civ. P. 33(b)(4). In responding, the court expects Defendant to use common sense and reason, e.g., Collins v. Wal-Mart Stores, Inc., No. 06-2466-CM-DJW, 2008 WL 1924935, *8 (D.Kan. Apr. 30, 2008), and will be disinclined to view with favor the failure to provide discovery based on objections which are hyper-technical, quibbling, or evasive.
Based on the foregoing, IT IS HEREBY ORDERED that:
