GARY S. AUSTIN, Magistrate Judge.
Damien T. Doster ("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 March 25, 2016, against defendants Chief Deputy Warden F. Vasquez, Yard Captain P. Llamas, Sgt. Sarah Leon, and Maintenance Engineer Ric Pavich, on Plaintiff's claim for deprivation of hot water in violation of the Eighth Amendment, and related negligence claims.
On July 5, 2016, the court issued a discovery and scheduling order establishing a deadline of December 2, 2016, for the parties to conduct discovery, including the filing of motions to compel. (ECF No. 19.) The discovery deadline has not been extended.
On January 4, 2017, Defendant Leon ("Defendant") filed a motion to compel further discovery responses, which the court deemed timely. (ECF Nos. 42, 50.) In the motion, Defendant argued that while Plaintiff had provided some responses to discovery requests, the responses were incomplete and evasive, and Plaintiff did not verify his responses under oath. Plaintiff did not file a response to the motion to compel. On April 13, 2017, the court granted the motion in part and ordered Plaintiff to provide further responses to Defendant Leon's Interrogatories numbers 4, 7, 8, 9, 10, 14, 16, 20, 21, and 22; Requests for Production of Documents numbers 7, 8, 9, 12, 13, 15, 16, and 17; and Requests for Admissions numbers 4, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 56, 66, and 67. (ECF No. 50.)
On July 13, 2017, Defendant filed a motion to dismiss this case for Plaintiff's failure to comply with the court's April 13, 2017, discovery order, or in the alternative, to compel further discovery responses from Plaintiff. (ECF No. 58.) On October 23, 2017, Plaintiff filed an opposition to the motion. (ECF No. 62.) On October 30, 2017, Defendant filed a reply to the opposition. (ECF No. 63.)
The events at issue in this case arose at Corcoran State Prison (CSP) in Corcoran, California, when Plaintiff was incarcerated there in the custody of the California Department of Corrections and Rehabilitation (CDCR). Defendants Vasquez, Llamas, Leon, and Pavich were employees of the CDCR at CSP during the relevant time. Plaintiff's allegations follow.
On May 18, 2015, the hot water was turned off to the housing unit and in Plaintiff's solitary cell. On June 3, 2015, defendants Vasquez and Leon were informed that Plaintiff's cell had no hot or warm water. Defendants Vasquez and Leon told Plaintiff the hot water would be back in a week or a few days, and to quit crying and complaining. This went on for months while Plaintiff's requests for interviews went unanswered.
On June 6, 2015, Plaintiff sent a CDCR-22 form request for interview to defendant Llamas, informing Llamas of the adverse conditions. Defendant Llamas responded that it was a maintenance issue and could not be corrected at her level.
On July 1, 2015, Plaintiff submitted a CDCR-22 form request for interview to defendant Pavich, informing Pavich of the adverse conditions which arose on May 18, 2015. On July 15, 2015, defendant Pavich responded that he was working on the hot water loop, and the hot water would be running by July 30, 2015.
Defendants Vasquez, Llamas, Leon, and Pavich all had authority to declare Plaintiff's cell unsafe for occupancy until the hot water was restored, but they did not do so. Plaintiff suffered physical injuries, mental and emotional pain and suffering, humiliation, and fear.
Plaintiff requests monetary damages and declaratory relief.
This case now proceeds against defendants Vasquez, Llamas, Leon, and Pavich, on Plaintiff's Eighth Amendment claims that he was deprived of hot water, and related state law negligence claims.
Federal Rule of Civil Procedure 37(b)(2) provides, in part:
Fed. R. Civ. P. 37.
Only two conditions are required to put into consideration the array of sanctions specified in Rule 37(b): (1) a prior order and (2) a violation of the order.
"[E]xcept for the sanction of dismissal, an imposition of sanctions under Rule 37(b)(2) does not require willfulness, fault, or bad faith.
"The Ninth Circuit has set forth five factors to be considered by the court in selecting the appropriate sanction: `(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.'"
Defendant Leon requests dismissal of this case for Plaintiff's failure to comply with the court's discovery order issued on April 13, 2017, or in the alternative, that Plaintiff be required to make supplemental responses to discovery request. The court's order required, in part, that Plaintiff provide Defendant with supplemental responses to interrogatories numbers 4, 7, 8, 9, 10, 14, 16, 20, 21, and 22, within thirty days. (ECF No. 50.) Defendant asserts that on or about June 29, 2017, Plaintiff sent supplemental responses, but the interrogatory responses were mostly identical to his previous inadequate responses. Defendant argues that sanctions should be imposed because Plaintiff did not make a good faith effort to comply with the court's order, despite Defendant providing Plaintiff multiple opportunities to do so. Defendant requests that her motion to compel or dismiss be deemed timely given the court's April 13, 2017, order and Plaintiff's failure to timely submit proper supplemental responses in compliance with the order.
In opposition, Plaintiff argues that "defendant's motion to compel amounts to unjustified harassment and an attempt to intimidate and/or take advantage of [Plaintiff's] litigation inexperience." (ECF No. 62 at 2:3-5.) Plaintiff asserts that soon after Defendant advised him that he had a duty to supplement his discovery responses, he supplemented them. On June 16, 2017, Defendant sent him a letter reminding him of his duty, and on June 29, 2017, he supplemented his responses. (Doster Decl., ECF No. 62 at 71 ¶ 4.) Plaintiff argues that his actions in failing to address all of the interrogatories were harmless because the court dismissed most of his claims, which resulted in most of Defendant's interrogatories being irrelevant. Plaintiff then proceeds, in his opposition, to respond again to Defendant's interrogatories numbers 7, 8, 10, 14, and 20. (ECF No. 62 at 2:18-4:6.)
The court finds Defendant Leon's motion to dismiss or compel, filed on July 31, 2017, to be timely, due to the fact that the same discovery issues have been pending since Defendant filed her first motion to compel on January 4, 2017. (ECF No. 50).
The court finds that Plaintiff failed to fully comply with the court's April 13, 2017, order, including the thirty-day deadline to provide responses (ECF No. 50). However, the Ninth Circuit's five factors do not weigh in favor of dismissal of the case based on Plaintiff's failure to comply.
"`The public's interest in expeditious resolution of litigation always favors dismissal.'"
Turning to the risk of prejudice, "pendency of a lawsuit is not sufficiently prejudicial in and of itself to warrant dismissal."
Although the court finds monetary sanctions of little use given that Plaintiff is a prisoner proceeding in forma pauperis, other lesser sanctions are available. Defendant requests that if this case is not dismissed, Plaintiff be required to provide additional supplemental responses to Defendant's interrogatories. This solution would allow the litigation to move forward, benefitting all of the parties. Therefore, this factor weighs against dismissal.
Finally, because public policy favors disposition on the merits, this factor will always weigh against dismissal.
The court's order of April 13, 2017, required Plaintiff to provide Defendant with further responses to interrogatories numbers 4, 7, 8, 9, 10, 14, 16, 20, 21, and 22. Only three of the interrogatories — numbers 10, 14, and 20 — are relevant to Plaintiff's hot water claim. The other interrogatories concern claims about drinking water, overflow of human waste, and lack of cleaning supplies, which have been dismissed from this case. The court now addresses each of the three relevant interrogatories.
Describe any interactions you had with Defendant Leon concerning plumbing issues.
"Refers Defendant to Defendant's response to RFA No 7.(6): Defendant admits he spoke to me after I filed a CDCR 602, However, plaintiff has not had any interaction with the defendant beyond June 3, 2015 concerning the matter."
Plaintiff has not responded to the interrogatory.
Plaintiff's response does not describe all of the interactions between Defendant Leon and Plaintiff concerning plumbing issues, as requested by the interrogatory. Fed. R. Civ. P. 37(a)(4). [Plaintiff] is ordered to make a further response to this interrogatory, discussing all such interactions.
"Plaintiff spoke with defendant Leon numerous times about the plumbing, while being escorted to and from the yard between May 2015, and July 2015."
Again, on 7/24/17, the Court concluded in defendants [sic] motion for summary judgment pertaining to plaintiff's claims about plumbing issues be dismissed, was granted in part and denied in part, and that the case proceed only on plaintiff's claims concerning the depravation of "HOT WATER" (see ECF No. 29 page 18).
Plaintiff has not responded to the interrogatory describe all of the interactions between Defendant Leon and Plaintiff concerning plumbing issues, as requested by the interrogatory. Instead, he now claims he does not have to answer the interrogatory any more. The hot water issue was a plumbing issue and therefore, Defendant Leon is still entitled to an adequate response.
This interrogatory concerns plumbing issues, which includes Plaintiff's claim for deprivation of hot water. Plaintiff's response does not describe all of the interactions between Defendant Leon and Plaintiff concerning plumbing issues (including hot water issues), as requested by the interrogatory. Fed. R. Civ. P. 37(a)(4). Plaintiff should be ordered to make a further response to this interrogatory, discussing all such interactions. If Plaintiff does not remember the interactions or cannot respond beyond what he has already answered, he should so state.
Describe any interactions you had with Defendant Pavich concerning plumbing issues.
"The interaction Plaintiff had with defendant Pavich concerning the plumbing issues were through work orders."
Plaintiff's response is unclear and not responsive. Plaintiff has failed to describe what types of issues were discussed and on what occasions.
Plaintiff has not described interactions, as requested by the interrogatory. Fed. R. Civ. P. 37(a)(4). Rather, Plaintiff has described the means of communication used by Plaintiff and Defendant Pavich. Plaintiff is ordered to make a further response, describing any interactions he had with Defendant Pavich concerning plumbing issues.
"The interaction Plaintiff had with Defendant Pavich concerning plumbing were through work orders.
During the time frame of these issue, plaintiff was in the security housing unit (SHU). The only interaction plaintiff had with defendant Pavich about the plumbing issues were through work orders and his response to them. Defendant Pavich [sic] office was not located in 4A-2R housing unit. Again, on 7/24/17, the Court concluded in defendants [sic] motion for summary judgment pertaining to plaintiff's claims about plumbing issues be dismissed, was granted in part and denied in part, and that the case proceed only on plaintiff's claims concerning depravation of "HOT WATER" (see ECF No. 29 page 18.)
Plaintiff's response still fails to address the interrogatory as set forth in the Court's order. Plaintiff has not described the interactions, as requested by the interrogatory. Fed. R. Civ. P. 37(a)(4). Rather, Plaintiff has described the means of communication used by Plaintiff and Defendant Pavich. Additionally, Plaintiff now claims he does not have to answer the interrogatory any more. The hot water issue was a plumbing issue and therefore, Defendant Leon is still entitled to an adequate response.
This interrogatory concerns plumbing issues, which includes Plaintiff's claim for deprivation of hot water. Plaintiff has not described interactions, as requested by the interrogatory. Fed. R. Civ. P. 37(a)(4). Plaintiff should be ordered to make a further response, describing the interactions he had with Defendant Pavich concerning plumbing issues (including hot water issues). If Plaintiff does not remember the interactions or cannot respond beyond what he has already answered, he should so state.
Identify all documents that support each injury you contend is related to the allegations raised in your Complaint.
"Refers defendants to Plaintiff's medical file the months of May through September 2015. All medication proscribed and both affidavit statements of Mr. Gilfredo B. Magana, and Mr. Clarence E. Reese."
Plaintiff's response is evasive and incomplete. Plaintiff must point to specific dates of treatment rather than his medical file, generally.
Plaintiff must state with more specificity which documents are responsive to this interrogatory. As Plaintiff's medical file may be voluminous, Plaintiff must direct Defendants to each specific document supporting his assertion that he sustained injuries, and where the documents can be found, so that Defendants can find the documents without a burdensome search. Plaintiff is advised to identify such documents by date. Upon request to prison officials, Plaintiff has access to his medical file. Plaintiff must search for documents that support each injury, as requested.
Defendants have equal access to plaintiff's medical file during the relevant period, the months of May through July 2015. All medication prescribed to plaintiff during the relevant time period, which plaintiff has already produced.
See declaration of Damien Doster, at 10. Paragraph 10 states: I did not keep a record of the particular dates I saw and/or attempted to speak with Leon because I did not know the extent of (CSP) Corcoran hot water problem and simply thought it would be repaired in a day or so, not months later. (see exhibit pictures)
Plaintiff has attempted to comply with this request by attaching the documents to his opposition. However, Plaintiff still has not stated with specificity the documents he relies on.
Plaintiff should not be required to provide any futher response to interrogatory number 20. The court has reviewed Plaintiff's declaration (ECF No. 62 at 71) and the documents attached to Plaintiff's opposition (
For the reasons set forth above, the court finds that Defendant Leon's motion to dismiss should be denied and Defendant Leon's motion to compel should be granted in part.
Accordingly
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within
