EDMUND F. BRENNAN, Magistrate Judge.
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. This action proceeds on plaintiff's Eighth Amendment claim against defendant Deleon based upon Deleon's alleged use of excessive force on October 14, 2009, and on plaintiff's First Amendment claim against defendants Guzman and Carillo based upon their alleged retaliation against plaintiff for filing administrative appeals. Before the court is plaintiff's motion to compel responses to his requests for production and interrogatories. ECF No. 34. Defendants opposed the motion. ECF No. 38.
Plaintiff requests an order compelling defendants to produce the following documents:
Plaintiff claims that defendants did not produce documents in response to numbers 1-4, above, in response to his request for production of documents ("RFP"). ECF No. 34 at 2; see also id. at 4-5 (showing that document numbers 1-4, above, actually correspond to plaintiff's RFP Nos. 1, 3, 5, 6). Plaintiff also indicates that for the first time, through the instant motion to compel, he is seeking documents responsive to numbers 5, 6 and 7, listed above. Id. at 2.
Plaintiff's RFP No. 1 requested the "complete prison records of plaintiff." Defendants objected on the ground that the documents sought were equally available to plaintiff, explaining that plaintiff may review his central file and medical file by requesting review from his correctional counselor. Plaintiff provides no argument as to how defendants' response is nonresponsive or why he is entitled to a further response from defendants. Defendants' proposal for how plaintiff may access his records appears reasonable and plaintiff's motion as to this request is denied without prejudice to renewal if requesting review from the correctional counselor, as proposed by defendants, does not result in access to the documents.
Plaintiff's RFP No. 3 requested "Any and all prison grievances filed against the defendants within the last five y[e]ars . . . and all actions taken, including but no[t] limit[ed to] all citizens' complaints . . . ." Defendants responded with numerous objections but without waiving those objections, provided with their opposition to plaintiff's motion, copies of the grievances filed by plaintiff against the defendants. Defendants state that they do not have any other grievances in their custody or control. Plaintiff did not file a reply or otherwise argue that these recently produced documents are nonresponsive, incomplete, or otherwise deficient. Accordingly, plaintiff's motion as it relates to this request appears to be resolved, and is denied as moot.
In RFP No. 5, plaintiff requested "Any and all written policies, procedures and practices about the inmates' housing in ASU interviews and treatment, including any protocol, policies and practices about use of force and method of investigation such use of force." Defendants objected to this request as vague and ambiguous, overly broad, and not reasonably calculated to lead to the discovery of admissible evidence. Without waiving those objections, defendants responded that the guidelines and procedures governing inmates' housing, administrative segregation unit, use of force and methods of investigation for allegations of use of force are contained within the California Code of Regulations and the Department Operations Manual. Defendants further informed plaintiff that copies of the California Code of Regulations and the sections of the Department Operations Manual from 2000 not deemed confidential for the safety and security of the institution, are located in the prison law library and are available for inspection and copying pursuant to prison policy and procedure. Defendants appear to have sufficiently responded to plaintiff's request by referring him to the California Code of Regulations and the Department Operations Manual. Plaintiff provides no argument as to how defendants' response is nonresponsive or why he is entitled to any further response. Accordingly, plaintiff's motion is denied as to this request.
In RFP No. 6, plaintiff requested "Any and all crime/incident reports about use of force, suicide, suicide[] attempts, and other incidents [that] occurred in Folsom State Prison's ASU from October 2009 to July 2012." Defendants objected to the request as vague, overly broad and not reasonably calculated to lead to the discovery of admissible evidence. Defendants further objected on the grounds that the documents requested are privileged and cannot be turned over to plaintiff due to safety and security concerns. Defendants' objections to the request as vague and overly broad are well-founded. Plaintiff makes no effort to narrow or otherwise clarify the request through his motion to compel, and provides no argument as to why he is entitled to a further response. Accordingly, plaintiff's motion to compel is denied as to this request.
Under the court's discovery and scheduling order, all requests for discovery pursuant to Rule 34 of the Federal Rules of Civil Procedure were to be served by April 3, 2013. ECF No. 19. A scheduling order may be modified upon a showing of good cause. Fed. R. Civ. P. 16(b). Good cause exists when the moving party demonstrates he cannot meet the deadline despite exercising due diligence. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992).
Plaintiff did not request document numbers 5, 6, and 7 until he filed the instant motion to compel on June 3, 2013. ECF No. 34. Accordingly, these requests are untimely. In his motion, plaintiff states that he was only prompted to request these documents after defense counsel deposed him about an incident that occurred on October 14, 2009. ECF No. 34 at 2. Plaintiff does not further elaborate.
Plaintiff does not request modification of the scheduling order, but even if his motion is construed to include such a request, plaintiff has not shown the requisite good cause. Plaintiff had ample time to serve his discovery requests in accordance with the scheduling order. He does not sufficiently explain why, despite his diligence, he could not have timely requested the documents listed in numbers 5, 6, and 7. His vague reference to questioning at his deposition does not demonstrate good cause for his delay in serving these requests. Accordingly, plaintiff's motion is denied as to these requests.
Plaintiff seeks to compel defendant Deleon's responses to interrogatory numbers 12-13 and 18-20. Plaintiff seeks to compel defendant Carillo's responses to interrogatory numbers 2 and 8.
Interrogatory number 12 asked who "ordered you to take the plaintiff out of his cell in ASU on 10-21-09, Officer Carrillo or Guzman?" Deleon responded "I do not recall."
Plaintiff argues that Deleon should review defendant Guzman's responses to interrogatories and then supplement the above response. Deleon's response, however, must be based upon his own personal knowledge, and not based upon information contained in the discovery responses of a co-defendant. Deleon stated that he does not recall who ordered plaintiff out of his cell, and plaintiff fails to demonstrate that this representation is false. Accordingly, plaintiff's motion is denied as to this request.
Interrogatory number 13 asked "is the policy of the CDCR to force the inmates housed [in] ASU into a room to be interviewed by Officers Guzman and Carillo in order to obtain an involuntary or false, and or leading confession?" Rather than answer the question, defendant objected on the ground that CDCR policies cannot be turned over to plaintiff due to safety and security concerns. Defendant also suggested that plaintiff consult the Department Operations Manual for any applicable sections.
Defendant argues that plaintiff's motion should be denied because plaintiff provides no argument as to how his response is nonresponsive. In this instance, however, defendant's response is quite plainly nonresponsive. The interrogatory calls for a "yes" or "no" response.
Interrogatory number 18 asked "What is the lieutenant's full name who came from the officer with Officer Guzman?" Defendant responded "While other officers may have been present, I do not recall any other officers except for Officer Guzman."
Interrogatory number 19 asked, "What is the lady's full name who stared at you in the hallway at the time that you was forcing the [plaintiff]?" Defendant objected to the interrogatory as argumentative and premised on facts which are not true, specifically that defendant forced plaintiff in any manner. Without waiving those objections, defendant responded with a denial, and by stating that he did not recall seeing a lady in the hallway.
Interrogatory number 20 asked "Who were the other office[r]s that were with Officers Guzman and Carrillo in that office on 10-21-09?" Defendant responded by referring plaintiff to his response to interrogatory number 18.
In his motion to compel, plaintiff identifies a Lieutenant Sunny who was the subject of interrogatory number 18 and a "Nancy" as the woman who is the subject of interrogatory number 19. Plaintiff asserts that these are the people who were present and that this additional information should "refresh" defendant's memory for purposes of responding to the interrogatories. Once again, however, defendant may only respond based upon his personal knowledge. In response to interrogatory numbers 18-20, Deleon states he does not recall. Plaintiff fails to demonstrate that Deleon's responses are false, and his motion to compel further responses to these interrogatories is denied.
Interrogatory number 2 asked "If that was true why did you wait[] until 12-29-09 to take pictures of the utilized items?"
Because Carillo responded that the photographs were taken on October 29, 2009, his response to the interrogatory appears to be complete. Plaintiff contends that the response is incomplete because it does not state the time and place that the photographs were taken. Because interrogatory number 2 did not request the time and place of the photographs, however, plaintiff's motion to compel a supplemental response with such information, is denied.
Interrogatory number 8 asked "Did you were interviewed about complaints of officers' misconduct taking place in FSP's ASU?" Defendant objected on the grounds that the request was incomprehensible and not reasonably calculated to lead to the discovery of admissible evidence. In addition, defendant responded that if plaintiff is requesting information regarding other inmates, and that those documents are privileged under state law.
In his motion, plaintiff explains that "nowhere" in interrogatory number 8 does he seek information concerning other inmates. He states that Carillo must respond to the interrogatory with a "yes" or a "no" response. Plaintiff's point in this regard is valid. However, plaintiff fails to address Carillo's objection to the request as incomprehensible. However, when the interrogatory is reasonably construed by correcting the obvious typo it is apparent that plaintiff is asking if Carillo was "interviewed about complaints of officers' misconduct taking place in FSP's ASU?" See Interrog. No. 8. Carillo's objection to the interrogatory as incomprehensible is overruled and defendant shall supplement the response to this request. Defendant shall file a statement with the court within 14 days, confirming that he has supplemented his response in accordance with this order.
Plaintiff moves to "disqualify the defendants' counsel from this civil action" on the grounds that the opposition to plaintiff's motion to compel contains false statements regarding plaintiff's attempts to meet and confer. ECF No. 41. Plaintiff fails to demonstrate that defendants' opposition contains false statements, and otherwise fails to demonstrate a conflict of interest or other grounds for disqualification. Accordingly, plaintiff's motion is denied.
Accordingly, IT IS HEREBY ORDERED that:
