CAROLYN K. DELANEY, 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 are defendant Mott's motion to compel (ECF No. 49), plaintiff's motion to compel (ECF No. 59), and defendant Salz' motion to compel (ECF No. 60).
Plaintiff alleges that defendants Mott, Terry, Morrow, Johnson, Murillo, Molina, Glenn, Salz, Andrichuck, Schnider, and Bell-Sprinkel violated his rights under the Eighth Amendment. (ECF No. 1 at 1, 3, 9-10; ECF No. 50.) Specifically, he alleges that after a disagreement over what size jumpsuit he should wear in order to be allowed out on the yard, he requested to see a sergeant. (ECF No. 1 at 9.) Instead of getting a sergeant, defendants Mott, Terry, Morrow, Johnson, and Murillo forced him out of the holding cage and beat him nearly to death. (
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(a)(3)(B). The party seeking to compel discovery has the burden of showing that the discovery sought is relevant.
Defendant Mott seeks to compel supplemental responses to Interrogatory Nos. 1-3 and Request for Production Nos. 1-5, on the grounds that plaintiff's objections lack merit and his answers are insufficient. (ECF No. 49-1.) After plaintiff failed to respond to the motion, the court ordered him to respond and warned that failure to do so would be deemed a waiver of any opposition. (ECF No. 56.) Plaintiff has not responded to the motion.
(ECF No. 49-1 at 3-4; ECF No. 49-2 at 17.)
Defendant's requests for plaintiff to identify the grievances that he submitted regarding the allegations in the complaint are clearly relevant and plaintiff's objection to these requests is not valid. First, the Ninth Circuit did not find that plaintiff's administrative remedies were effectively unavailable. (ECF No. 22.) Instead, what the Ninth Circuit found was that failure to exhaust was not clear on the face of the complaint because the complaint included facts that indicated that administrative remedies may not have been available. (
(ECF No. 49-1 at 5; ECF No. 49-2 at 18.)
Defendant's third request regarding plaintiff's injuries and treatment for those injuries is relevant. Although plaintiff did respond to the request, he provided only some of the information requested and parts of the response were illegible. Accordingly, plaintiff will be required to provide a complete response to Interrogatory No. 3 and he must ensure that his response is legible.
(ECF No. 49-2 at 22-24.)
Defendant's requests for production all seek documentation related to plaintiff's claims and are therefore relevant. Plaintiff's response to all of the requests was that he was unable to fulfill his obligations because he was being housed without access to his property. Counsel avers that on December 15, 2017, he spoke with the litigation counselor at the institution where plaintiff was housed at the time and was advised that plaintiff was not then subject to any property restrictions related to legal property. (ECF No. 49-2 at 2, ¶ 6.) However, even if plaintiff did not have access to his property at the time he responded to the requests for production, that would not relieve him of his duty to provide the requested documentation once his access was restored. Accordingly, plaintiff will be required to provide responses to these requests.
Defendant Mott's motion to compel will be granted and plaintiff will be required to provide supplemental responses to the requests as set forth above. If plaintiff fails to comply with this order, he will be subject to sanctions that may range from exclusion of evidence all the way up to dismissal of the claims against defendant Mott (and possibly the claims against the other defendants represented by the Attorney General's Office), depending upon the degree of non-compliance.
Plaintiff seeks to compel responses to two requests for production and verifications for defendants' responses to his requests for admission. (ECF No. 59 at 1-2.) Defendants oppose the motion on the grounds that plaintiff has failed to show that his requests were relevant or that defendants' objections were not justified. (ECF No. 64.)
Defendants argue that plaintiff's motion to compel should be denied because the requirement to confer under Federal Rule of Civil Procedure 37(a) has not been met. ECF No. 64 at 2. Defendants are correct that, unlike the requirement to confer set forth in Local Rule 251, the requirement to confer outlined in Rule 37(a) has not been excused. However, while the court encourages parties to attempt to resolve disputes prior to seeking court intervention, because of plaintiff's status as a pro se prisoner, the requirements of Rule 37(a) will not be enforced here and will not provide grounds for denying the motion.
(ECF No. 59 at 3-4.)
Plaintiff seeks to compel production of "all pertinent information" from September 4, 2015 through November 2016, located in his medical and mental health records and his central file. (
Defendants also object on the grounds that these records are equally available to plaintiff because he can review them using the procedures established for that purpose. However, in his motion plaintiff claims that it is a "constant struggle" to obtain review of his files and to "get documents out of his C.D.C.R. file(s)." (ECF No. 59 at 2.) Although defendants imply that plaintiff's only claim is that he is not given free copies of his files (ECF No. 64 at 3), it appears that plaintiff also faces difficulty simply accessing the files for review. Whether plaintiff can readily obtain copies aside, if he is having difficulties even accessing the files for review, they are not equally available to him.
Since plaintiff should have access to these records and he has not identified the records he seeks with sufficient particularity, the court will not require defendants to produce these documents. However, defendants will be required to take whatever steps are necessary to ensure that plaintiff is provided an adequate opportunity to review his medical and mental health records and central file and obtain copies of the documents he believes are relevant.
(ECF No. 59 at 4.)
For his second request for production, plaintiff sought the production of the video recording of a cell extraction. The parties are in dispute as to the date of the cell extraction for which plaintiff requested the video. Defendants argue that "Plaintiff correctly noted in his motion that he referenced an incorrect date in his request." (ECF No. 64 at 4 (citing ECF No. 59 at 1).) However, what plaintiff's motion argues is that defendants "put some other date beside's [sic] the date the cell extraction actually happened" in their response. (ECF No. 59 at 1.) Plaintiff includes a handwritten copy of the request, which states the cell extraction took place on September 9, 2015, as evidence that defendants changed the date.
Without a copy of the original request plaintiff sent to defendants, it is impossible to tell what date was actually identified in the request. However, in reviewing plaintiff's handwriting, it appears possible that plaintiff requested video from the cell extraction on "9-9-15" and that it was misread as "4-8-13." Since it appears that defendants only searched for video from a cell extraction on April 8, 2013, they will be required to produce any video that exists from plaintiff's cell extraction on September 9, 2015. Although defendants argue that plaintiff is merely speculating that such a video exists, the report from the cell extraction shows that a video operator was present, indicating that a video did exist at some point. (
Plaintiff asserts that defendants Schneider and Andrichuk failed to provide verifications with their responses to his requests for admissions. (ECF No. 59 at 2.) However, while Federal Rule of Civil Procedure 33 requires the answer to an interrogatory be given under oath and signed by the person making the answer, Fed. R. Civ. P. 33 at (b)(3), (5), the rule governing admissions makes no such requirement, Fed. R. Civ. P. 36(a)(3). Instead, Rule 36 requires only that an answer or objection be signed by the party to whom it was directed or that party's attorney.
Plaintiff's motion to compel will be granted in part. Defendants Mott, Terry, Morrow, Johnson, Murillo, Molina, Glenn, Andrichuck, and Schnider will be required to ensure plaintiff has an opportunity to review the records requested in Request for Production No. 1 or provide copies of those records from the requested time period. Defendants will also be required to provide a supplemental response to Request for Production No. 2. Defendants Schneider and Andrichuk will not be required to provide verifications for their admissions.
Defendant Salz moves to compel plaintiff to respond to requests for production and interrogatories, to which plaintiff has completely failed to respond. (ECF No. 60.) Because plaintiff has failed to provide any answers or objections, defendant Salz argues that any objections have been waived and plaintiff should be required to fully respond to all requests. (ECF No. 60-1 at 3.) Plaintiff does not dispute his complete lack of response and instead appears to argue that he should not be required to respond to any discovery requests from defendant Salz because Salz is in default and should have had a default judgment entered against him. (ECF No. 65.) The court has already explained why plaintiff's motions for default judgment were denied (ECF Nos. 36, 43) and plaintiff's belief that default judgment should have been entered against defendant Salz does not provide grounds for refusing to participate in discovery. Defendant Salz' motion to compel will therefore be granted and plaintiff will be required to fully respond to the discovery requests without objection. If plaintiff fails to comply with this order, he will be subject to sanctions that may range from exclusion of evidence all the way up to dismissal of the claims against defendant Salz, depending upon the degree of non-compliance.
Accordingly, IT IS HEREBY ORDERED that:
1. Defendant Mott's motion to compel (ECF No. 49) is granted. Within thirty days of service of this order plaintiff must provide supplemental responses to defendant Mott's Interrogatory Nos. 1-3 and Request for Production Nos. 1-5 without any further objections.
2. Plaintiff's motion to compel (ECF No. 59) is granted in part and denied in part as follows:
b. With respect to Request for Production No. 2, the motion is granted and within thirty days of service of this order defendants must produce any video of plaintiff's September 9, 2015 cell extraction. If no such video can be located, they must provide details of the efforts to locate the video and, if applicable, an explanation as to why the video no longer exists.
c. With respect to the request that defendants Schneider and Andrichuk be required to verify their responses to his requests for admission, the motion is denied.
3. Defendant Salz' motion to compel (ECF No. 60) is granted. Within thirty days of service of this order, plaintiff must fully respond to defendant Salz' requests for production and interrogatories without objection.
4. The parties shall have sixty days from service of this order to bring any motions for sanctions under Federal Rule of Civil Procedure 37(b) for failure to comply with this order.