GARY S. AUSTIN, Magistrate Judge.
George McClure ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff's First Amended Complaint filed on February 9, 2015, against defendants C. K. Chen (M.D.) and C. Horton (Physician's Assistant) (collectively, "Defendants"), for providing inadequate medical care in violation of the Eighth Amendment. (ECF No. 12.)
On September 14, 2018, the court issued a discovery and scheduling order setting a discovery deadline of January 14, 2019, and a dispositive motions deadline of March 14, 2019. (ECF No. 70.) On January 14, 2019, Defendants filed a motion to modify the discovery and scheduling order. (ECF No. 75.) On January 22, 2019, the court extended the discovery deadline until January 28, 2019, for the limited purpose of Defendants filing a motion to compel. (ECF No. 76.)
On January 28, 2019, Defendants filed a motion to compel and for sanctions. (ECF No. 77.) On February 14, 2019, Plaintiff filed an opposition to the motion. (ECF No. 78.) On February 21, 2019, Defendants filed a reply. (ECF No. 79.)
Defendants' motion to compel and for sanctions is now before the court. Local Rule 230(l).
Plaintiff is currently incarcerated at the California Institution for Men in Chino, California, under the custody of the California Department of Corrections and Rehabilitation (CDCR). The events giving rise to this action allegedly occurred at Kern Valley State Prison
Plaintiff alleges the following. Plaintiff is an epileptic with a long and documented history of seizures. Upon arriving at KVSP, Plaintiff informed medical staff of his medical needs and had a discussion with the screening nurse. Under CDCR's medical policies, epileptic inmates are not housed upstairs due to seizures and obvious dangers of placing these inmates on an upper tier or upper bunk. Plaintiff has a lower tier/lower bunk chrono that prohibits staff from housing him illegally. However, Plaintiff was housed on an upper tier.
Plaintiff suffered a fall causing a serious head injury and loss of vision in his left eye. Plaintiff submitted two or three medical requests to be seen and correct his living situation. Plaintiff saw Physician's Assistant Horton but nothing was done to abate the danger Plaintiff was in. Defendant Horton did not remove Plaintiff from his housing and Plaintiff was not given any consultation with another staff member to be removed from harm's way.
Plaintiff then saw Doctor C. K. Chen, who is Plaintiff's doctor. Plaintiff informed Dr. Chen of his injuries. Dr. Chen did not have any tests or x-rays done to evaluate Plaintiff's condition, did not order a specialist to diagnose Plaintiff's condition, and did not provide anything for Plaintiff's pain. Most importantly, Defendant Chen did not remove Plaintiff from his dangerous housing situation. Dr. Chen told Plaintiff to go back to his cell and return in six weeks.
Once Plaintiff finally saw a specialist the specialist ordered an urgent consultation with an eye surgeon. Defendants denied Plaintiff the necessary eye surgery requested by the eye specialist. Had Plaintiff received the surgery he required he would have his eyesight. Instead, long delays and refusals to treat caused Plaintiff unnecessary suffering and loss of vision in his left eye.
Each of the Defendants was aware of Plaintiff's medical condition because Plaintiff told them about it and they had Plaintiff's medical file in front of them when speaking to Plaintiff. Plaintiff told them he could not see out of his left eye and had a serious head injury. Plaintiff told the Defendants he was being housed against medical orders, but nothing was done by either Defendant to remove him from a knowingly dangerous living situation.
It took over two months to treat Plaintiff causing him to lose vision in his left eye. His last eye test revealed 3/300 vision.
Plaintiff seeks monetary damages.
While the Eighth Amendment of the United States Constitution entitles Plaintiff to medical care, the Eighth Amendment is violated only when a prison official acts with deliberate indifference to an inmate's serious medical needs.
"Deliberate indifference is a high legal standard."
"A difference of opinion between a prisoner-patient and prison medical authorities regarding treatment does not give rise to a § 1983 claim."
The Federal Rules of Civil Procedure govern discovery in this civil action. The discovery process is subject to the overriding limitation of good faith, and callous disregard of discovery responsibilities cannot be condoned.
Pursuant to Rule 37(a) of the Federal Rules of Civil Procedure, a party propounding discovery may seek an order compelling disclosure when an opposing party has failed to respond or has provided evasive or incomplete responses. Fed. R. Civ. P. 37(a)(3)(B). "[A]n evasive or incomplete disclosure, answer, or response is to be treated as a failure to disclose, answer, or respond." Fed. R. Civ. P. 37(a)(4). The moving party bears the burden of demonstrating "actual and substantial prejudice" from the denial of discovery.
Generally, if the responding party objects to a discovery request, the party moving to compel bears the burden of demonstrating why the objections are not justified.
Pursuant to Rule 33(a), 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). Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath, Fed. R. Civ. P. 33(b)(3), and the grounds for objecting to an interrogatory must be stated with specificity, Fed. R. Civ. P. 33(b)(4);
Pursuant to Rule 34(a) of the Federal Rules of Civil Procedure, "any party may serve on any other party a request to produce and permit the party making the request . . . to inspect and copy any designated documents . . . which are in the possession, custody or control of the party upon whom the request is served." Fed. R. Civ. P. 34(a)(1). "[A] party need not have actual possession of documents to be deemed in control of them."
Defendants move the court to compel Plaintiff to: (1) provide amended substantive responses to their Interrogatories Nos. 3, 4, 5, and 6; and, (2) provide amended responses to their entire Request for Production of Documents to clearly identify the documents responsive to each request. Defendants assert that despite the parties' agreement that Plaintiff would amend these responses, Plaintiff failed to resolve the issues with the responses.
Defendants served Plaintiff with Requests for Production, Set One, and Interrogatories, Set One, on November 15, 2018. (Mohmoud Decl., ¶ 2.)
On December 12, 2018, the day of Plaintiff's deposition, defense counsel met and conferred with Plaintiff, explained why Plaintiff's responses to Interrogatories Nos. 3, 4, 5, 6, and 8, and the Requests for Production, were deficient; how they could be corrected; and, asked if he was willing to amend them in order to avoid a motion to compel. (
Defense counsel contacted Plaintiff on January 14, 2019, explaining that, while she (defense counsel) had received other communications from Plaintiff amending his responses to the Request for Admissions, no amended responses had been received for the Requests for Production or Interrogatories. (
Defendants assert that Plaintiff produced over thirty-five pages of documents which included medical records, health care appeals records, and miscellaneous handwritten documents. (
Defendants argue that Plaintiff's documents render the discovery production useless as Defendants are unable to determine which of these records provides the specific information sought in Defendants' requests. Defendants suggest that at the very least Plaintiff should label the records by an exhibit page, or a page number, and refer Defendants to the corresponding number for the documents responsive to each request. Defendants contend that Plaintiff's responses are evasive and therefore non-responsive.
Defendants further argue that Plaintiff's amended responses to Interrogatories Nos. 3, 4, 5, and 6 are deficient. Plaintiff's amended response to Interrogatory No. 3 is not complete within itself and refers Defendants to his response to Interrogatory No. 1 instead of stating all of the facts once more. (ECF No. 77-2 at 30 (Exh. C at 3)). Plaintiff's amended responses to Interrogatories Nos. 4 and 6 do not directly answer the question and instead refer to his "§1983 filing" and other "documents" that may, "but not necessarily," have the responsive information. (
Plaintiff argues that he provided adequate responses to Defendants in a timely manner. Plaintiff asserts that he had a deadline of January 14, 2019, to satisfy all discovery requests pursuant to the court's order dated September 13, 2018. (ECF No. 70.) On December 4, 2018, Plaintiff mailed the responses to Interrogatories, Requests for Admissions, and Production of Documents requested by Defendants. (ECF No. 78 at 6 (Exh. A)). On December 12, 2018, Plaintiff was deposed by defense counsel who informed Plaintiff that she (defense counsel) would like more detailed answers to Interrogatories Nos. 3, 4, 5, 6, and 8 by December 24, 2018, but she did not mention a problem with the documents produced by Plaintiff. (Decl. of Pltf., ECF No. 78 ¶ 5.) On December 19, 2018, Plaintiff mailed the amended Interrogatories to defense counsel. (ECF No. 78 at 8 (Exh. B)). Plaintiff contends that defense counsel misplaced the amended Interrogatories and Plaintiff re-mailed them to her on January 14, 2019. (Decl. of Pltf., ECF No. 78 ¶¶ 3, 4.) Plaintiff asserts that defense counsel never further contacted him about more deficiencies until she filed this motion to compel. (
As for the documents produced, Plaintiff asserts that he did the best he could because it is difficult for inmates to obtain documents at the prison. After filing CDCR Form 7385 to the medical department an inmate must wait 3-5 weeks to receive the documents. (
Plaintiff contends that defense counsel only wants Plaintiff's discovery responses to conform to Defendants' version of the events, and when they do not they are classified as "defective" or "nonresponsive." (
Plaintiff agrees to re-work the Interrogatory responses in question and to attempt to find information of use to defense counsel in the documents.
In response to Plaintiff's assertion that he was not notified at the deposition that the documents he produced were deficient, defense counsel provides evidence that at Plaintiff's deposition testimony defense counsel informed him of the need to revise his responses to the Request for Production and how they could be fixed in order to clearly indicate which documents responded to each request. (ECF No. 77-2 at 21, Mohmoud Decl., Exh. B.) Defendants argue that Plaintiff failed to clarify to the court how Defendants could be expected to identify specific records without any labels or references.
Defendants request that when Plaintiff amends the Interrogatories he be required to refer to the motion to compel and guidelines provided in the Federal Rules to ensure that his revised responses are amended accordingly.
The court concurs with Defendants that Plaintiff's responses to Interrogatories Nos. 3, 4, 5, and 6, and responses to Defendants' Request for Production of Documents are deficient. Plaintiff has agreed to amend these responses.
With respect to the Interrogatories Plaintiff is reminded that he is required, to the extent that he does not object to an Interrogatory, to answer each of the four Interrogatories at issue separately and fully in writing under oath. Fed. R. Civ. P. 33(b)(3). Plaintiff cannot limit his answers to matters within his own knowledge and ignore information immediately available to him or under his control,
With respect to the Request for Production of Documents, Plaintiff has agreed to attempt to find information of use to defense counsel in the documents he possesses. Plaintiff's contention that he is not required to provide responses to Defendants more than once, nor produce documents in an organized fashion, is erroneous. The court acknowledges that Plaintiff faces substantial challenges in complying with discovery rules while he is incarcerated. However, as discussed above, Plaintiff must comply with the Federal Rules which require him to make a reasonable inquiry when Defendants request relevant and unprivileged documents, Fed. R. Civ. P. 26(g)(1), and if no responsive documents exist, to demonstrate to the court that he has made a reasonable inquiry and exercised due diligence,
Rule 37(a)(5)(A) of the Federal Rules of Civil Procedure provides that if a motion to compel is granted, "the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. But the court must not order this payment if (i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust." Fed. R. Civ. P. 37(a)(5)(A).
Defendants request the imposition of sanctions upon Plaintiff as reimbursement for Defendants' expenses in obtaining this order on the grounds that Plaintiff failed to disclose, answer, or respond pursuant to Rule 37(a)(4). Defense counsel declares that she "spent a total of three hours reviewing the discovery at issue, conducting the necessary legal research, and drafting this motion to compel." (Mohmoud Decl. ¶ 7.) "At the billing rate of $170 per hour for Deputy Attorneys General, the total attorneys' fees incurred as a result of my time on this matter is $510.00." (
Plaintiff opposes the motion for sanctions arguing that he responded timely and appropriately to Defendants' discovery requests. Plaintiff declares that he failed to timely amend his responses to Defendants' Request for Production because defense counsel never mentioned a problem with his prior responses before the motion to compel was filed on January 19, 2019. However, Defendants have provided evidence refuting Plaintiff's version of the events; testimony from Plaintiff's deposition on December 12, 2018, shows that Plaintiff was informed of the deficiencies at the deposition. (Pltf's Decl., ECF No. 78 at 3 ¶ 5.) Plaintiff also asserts that he was not contacted about the deficiencies in his amended responses to Interrogatories before Defendants filed their motion to compel. (
Defendants' motion to compel shall be granted by this order. Evidence shows that Defendants have acted in good faith to obtain the discovery they requested without court action. Defendants conferred with Plaintiff more than once, and even requested an extension of the discovery deadline to give Plaintiff another opportunity to provide the requested discovery before they filed their motion to compel.
Plaintiff has offered no reasonable explanation why he was unable before now to look through thirty-five pages of medical records and determine if any of the records are responsive to Defendant's Requests for Production. Plaintiff appears to have put minimal effort into responding to Defendants' interrogatories, even after he conferred with defense council at his deposition and was informed why the responses were deficient. Plaintiff complains of his limitations at the prison, but he has not participated in discovery to the extent he is able. Therefore, the court shall grant Defendants' motion for sanctions.
Plaintiff shall be required to pay Defendants' reasonable expenses, including attorney's fees, for the preparation of their motion to compel and for sanctions, filed on January 28, 2019. The monetary award shall be deducted from Plaintiff's damages award if he is successful at trial, or shall be assessed as part of Defendants' costs if they prevail at trial.
The Court finds these monetary sanctions to be sufficient. While Plaintiff has caused a delay in the resolution of discovery, Defendants have not demonstrated that they are unable to defend this action on the merits. "What is most critical for case-dispositive sanctions, regarding risk of prejudice and of less drastic sanctions, is whether the discovery violations `threaten to interfere with the rightful decision of the case.'"
Based on the foregoing, Defendants' motion to compel and for sanctions shall be granted. Plaintiff is required to provide further responses to Defendants' Interrogatories Nos. 3, 4, 5, and 6, as discussed above. Plaintiff shall also provide amended responses to Defendants' Request for Production of Documents, with documents labeled or otherwise organized to clearly indicate to Defendants which documents are being provided in response to which request. Plaintiff shall also reimburse Defendants for their costs in bringing this motion, pursuant to this order.
Accordingly, IT IS HEREBY ORDERED that:
IT IS SO ORDERED.
