Robinson v. Owens et al

Filing 21

ORDER - IT IS ORDERED that Plaintiff's "Notice to the Court That Defendants Have Refused to Comply with This Court's Order of 10/16/2012 Concerning Discovery Disputes Which Affects Court Deadlines," doc. 19 , which the Court c onstrues as a motion to compel, is DENIED with prejudice. IT IS FURTHER ORDERED that Defendant Hall's Motion to Strike Plaintiff's Notice, doc. 20 , is DENIED as moot. IT IS FURTHER ORDERED that counsel and any party, if unrepresented, must use the above caption, number and initials until further order of the District Court. Signed by Magistrate Judge Lawrence O Anderson on 3/1/13. (LAD)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Francisco J. Robinson, 10 11 Plaintiff, vs. 12 John W. Hall, 13 Defendant. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV-12-166-PHX-FJM (LOA) ORDER 15 This case arises on Plaintiff's “Notice to the Court That Defendants Have Refused to 16 Comply with This Court's Order of 10/16/2012 Concerning Discovery Disputes Which 17 Affects Court Deadlines,” which the Court construes as a motion to compel discovery, and 18 Defendant Hall’s Motion to Strike Plaintiff's Notice. (Docs. 19-20) Plaintiff’s motion to 19 compel discovery is untimely, fails to comply with LRCiv 7.2(j) and Rule 37(a)(1), and will 20 be denied. 21 I. Background 22 On January 25, 2012, Plaintiff Francisco J. Robinson, who is confined in the Arizona 23 State Prison Complex-Lewis, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 24 1983 and an Application to Proceed In Forma Pauperis. In a March 6, 2012 Order, the 25 Court granted the Application to Proceed and dismissed the Complaint without prejudice 26 because Plaintiff had failed to state a claim. (Doc. 6) On April 4, 2012, Plaintiff filed a 27 three-count First Amended Complaint against Deputy Warden Quency Owens and Sergeant 28 1 Hall. (Doc. 7) After mandatorily screening the First Amended Complaint per 28 U.S.C. § 2 1915A(a), on May 14, 2012, the Court ordered Defendant Hall to answer Count I of the First 3 Amended Complaint and dismissed the remaining claims and Defendant Owens. (Doc. 8 at 4 1) 5 In Count I, Plaintiff claims that his Eighth Amendment rights were violated when 6 Defendant Hall pulled him from the visitation area and informed him that he was being 7 placed on defecation watch. (Id. at 2) In Count I, Plaintiff claims, among other things, that 8 his Eighth Amendment rights were violated when Defendant Hall pulled him from the 9 visitation area and informed him that he was being placed on defecation watch. Plaintiff 10 alleges the handcuffs were too tight but that when he requested they be loosened, Defendant 11 Hall said they were fine. Plaintiff claims that six hours later, another sergeant came by, saw 12 the damage the cuffs were causing and immediately loosened them. (Id. at 3) Finally, 13 Plaintiff alleges that he was kept in the storage closet for twenty-six hours, and was forced 14 to lay on the floor with the padlock digging into his back and metal restraints cutting into his 15 wrists. During this time, Plaintiff alleges that he was denied water and not allowed to clean 16 himself after defecating. Plaintiff alleges he suffered nerve damage from the metal restraints 17 and a rash from not being allowed to clean himself.(Id. at 3) 18 Defendant John W. Hall filed his Answer on August 20, 2012. On October 16, 2012, 19 the Court entered a Rule 16 Scheduling Order, mandating, among other things, “[d]iscovery 20 disputes must be brought to the attention of the Court in writing after compliance with Rule 21 37(a)(1), Fed.R.Civ.P., and Local Rule (‘LRCiv’) 7.2(j) by [February 15, 2013].” (Docs. 15 22 at 2) Plaintiff filed his motion to compel discovery on February 27, 2013, twelve days after 23 the discovery dispute deadline. 24 II. Rule 16 Scheduling Order 25 Federal Rule of Civil Procedure 16(b)(4) “provides that a district court’s scheduling 26 order may be modified upon a showing of ‘good cause,’ an inquiry which focuses on the 27 reasonable diligence of the moving party.” Noyes v. Kelly Servs., 488 F.3d 1163, 1174 n. 6 28 (9th Cir. 2007) (citing Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. -2- 1 1992)). The scheduling order “controls the course of the action unless the court modifies it[]” 2 and Rule “16 is to be taken seriously.” Rule 16(d); Janicki Logging Co. v. Mateer, 42 F.3d 3 561, 566 (9th Cir. 1994). 4 Rule 16 “recognizes the inherent power of the district court to enforce its pretrial 5 orders through sanctions, Fed. R. Civ. P. 16(f), and the discretion of the [assigned] judge to 6 apply an appropriate level of supervision as dictated by the issues raised by each individual 7 case.” In re Arizona, 528 F.3d 652, 657 (9th Cir. 2009) (citing e.g., Fed.R.Civ.P. 16(c)(2)), 8 cert. denied, U.S. , 129 S.Ct. 2852, 2009 WL 1738654 (2009). “A scheduling conference 9 order ‘is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded 10 without peril.’” Johnson, 975 F.2d at 610 (quoting Gestetner Corp. v. Case Equip. Co., 108 11 F.R.D. 138, 141 (D. Me. 1985)). 12 13 14 15 16 17 The Ninth Circuit has clarified why the Rule 16 deadlines must be taken seriously by counsel and unrepresented parties: [I]n these days of heavy caseloads, trial courts in both the federal and state systems routinely set schedules and establish deadlines to foster the efficient treatment and resolution of cases. Those efforts will be successful only if the deadlines are taken seriously by the parties, and the best way to encourage that is to enforce the deadlines. Parties must understand that they will pay a price for failure to comply strictly with scheduling and other orders, and that failure to do so may properly support severe sanctions and exclusions of evidence. 18 Wong v. Regents of the Univ. of Cal., 410 F.3d 1052, 1060 (9th Cir. 2005); Hostnut.Com, 19 Inc.v. Go Daddy Software, Inc., 2006 WL 2573201, at *3 (D. Ariz., Sept. 6, 2006). “[R]ules 20 are rules - and the parties must play by them. In the final analysis, the judicial process 21 depends heavily on the judge’s credibility. To ensure such credibility, a [assigned] judge 22 must often be firm in managing crowded dockets and demanding adherence to announced 23 deadlines.” Singh v. Arrow Truck Sales, Inc., 2006 WL 1867540, at *2 (E.D. Cal., July 5, 24 2006). Moreover, the Ninth Circuit is highly protective of this particular rule, as it deems 25 Rule 16 to be an essential tool in controlling heavy trial court dockets, recognizing the 26 importance of a “district court’s ability to control its docket by enforcing a discovery 27 termination date, even in the face of requested supplemental discovery that might have 28 -3- 1 revealed highly probative evidence, when the [party’s] prior discovery efforts were not 2 diligent.” Cornwell v. Electra Central Credit Union, 439 F.3d 1018, 1027 (9th Cir. 2006) 3 (“We hold that the district court was well within its sound discretion when it denied [the 4 party’s] motion to reopen discovery.”). “The use of orders establishing a firm discovery 5 cutoff date is commonplace, and has impacts generally helpful to the orderly progress of 6 litigation, so that the enforcement of such an order should come as a surprise to no one.” Id. 7 As the Ninth Circuit has emphasized, “[d]istrict courts have wide latitude in controlling 8 discovery, and [their] rulings will not be overturned in the absence of a clear abuse of 9 discretion.” Id. (citation and internal quotation marks omitted). 10 Because Plaintiff’s discovery motion is untimely under the Scheduling Order, 11 Plaintiff’s motion will be denied. 12 III. Discovery Disputes 13 Prior to filing a motion to compel discovery, parties must confer in “good faith.” 14 Fed.R.Civ.P. 37(a). Rule 37(a)(1) requires that every disputed discovery request “[i]nclude 15 a certification that the movant has in good faith conferred or attempted to confer with the 16 person or party failing to make disclosure or discovery in an effort to obtain it without court 17 action.” The Local Rules for the District Court of Arizona also provide that “[a]ny discovery 18 motion brought before the Court without prior personal consultation with the other party and 19 a sincere effort to resolve the matter, may result in sanctions.” LRCiv 7.2(j). These rules 20 mandate an unrepresented party or attorney attach a certification that “after personal 21 consultation and sincere efforts to do so,” the party or counsel have been unable to 22 satisfactorily resolve the matter.1 23 24 25 26 1 LRCiv 7.2(j) provides: No discovery motion will be considered or decided unless a statement of moving counsel is attached thereto certifying that after personal consultation and sincere efforts to do so, counsel have been unable to satisfactorily resolve the matter . . . . 27 28 LRCiv 7.2(j). -4- 1 Plaintiff provides no affidavit, declaration, or certification signed under penalty of 2 perjury, detailing his good faith attempts with opposing counsel to resolve the discovery 3 dispute prior to seeking a judicial resolution of the issue. “Personal consultation requires 4 either face-to-face communication or telephone communication. Letters, faxes and e-mails 5 are insufficient.” Hart v. Agnos, 2008 WL 2008966, at *7 (D. Ariz., April 25, 2008). For 6 incarcerated litigants, face-to-face communication, faxes and e-mails may be impractical, but 7 Plaintiff could have done more than he did in this case to resolve the issue before seeking a 8 court order. Sending a letter to some person or persons, unidentified in Plaintiff’s motion, to 9 “set up a call” to Plaintiff is wholly insufficient and inadequate to meet the requirements of 10 LRCiv 7.2(j). (Doc. 19 at 1) 11 The Ninth Circuit has “[e]xplain[ed], yet again, the importance of following a district 12 court’s local rules. ‘District courts have broad discretion in interpreting and applying their 13 local rules.’” Simmons v. Navajo County, 609 F.3d 1011, 1017 (9th Cir. 2010) (quoting 14 Miranda v. S. Pac. Transp. Co., 710 F.2d 516, 521 (9th Cir. 1983)). Because Plaintiff failed 15 to satisfy the District Court’s certification requirements for it to consider a discovery dispute, 16 an additional basis exists to deny Plaintiff’s motion. See Sandpiper Resorts Development 17 Corp. v. Global Realty Investments, 2012 WL 2009965 (D. Ariz., June 5, 2012) (plaintiffs’ 18 motion to compel denied because there had been no personal consultation in an effort to 19 resolve discovery dispute per Rule 37(a)(1), Fed.R.Civ.P., and LRCiv 7.2(j)); Reishus v. 20 Almaraz, 2011 WL 109569 (D. Ariz., Jan 12, 2011). 21 For the foregoing reasons, 22 IT IS ORDERED that Plaintiff's “Notice to the Court That Defendants Have Refused 23 to Comply with This Court’s Order of 10/16/2012 Concerning Discovery Disputes Which 24 Affects Court Deadlines,” doc. 19, which the Court construes as a motion to compel, is 25 DENIED with prejudice. 26 27 28 IT IS FURTHER ORDERED that Defendant Hall’s Motion to Strike Plaintiff’s Notice, doc. 20, is DENIED as moot. IT IS FURTHER ORDERED that counsel and any party, if unrepresented, must use -5- 1 2 the above caption, number and initials until further order of the District Court. Dated this 1st day of March, 2013. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-

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