Skinner #193387 v. Ryan et al

Filing 94

ORDER denying without prejudice 48 Plaintiff's Motion to Compel. Defense counsel shall promptly respond to Plaintiff's letter in a good faith attempt to avoid judicial involvement in this discovery dispute or narrow the issues upon which the parties disagree. Signed by Magistrate Judge Lawrence O Anderson on 1/8/14.(LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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James E. Skinner,
Plaintiff,

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vs.

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Charles L. Ryan, et al.,

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Defendants.

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No. CV-12-1729-PHX-SMM (LOA)
ORDER

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This matter is before the Court on Plaintiff’s Motion to Compel Discovery in which
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Plaintiff requests that the Court compel Defendant Ryan to produce documents responsive to
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his requests for production. (Doc.48) Defendant Ryan has filed a Response and Plaintiff has
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filed a Reply. (Docs. 58, 63) On December 29, 2013, Plaintiff filed a Supplemental Pleading
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in Support of His Motion to Compel Discovery. (Doc. 92)
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I. Background
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Plaintiff, a frequent filer1 and proceeding pro se, commenced this prisoner civil rights

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action pursuant to 42 U.S.C. § 1983 on August 14, 2012, by lodging a Complaint. (Docs. 1-2)
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Plaintiff also requested leave to proceed in forma pauperis, which was granted. (Docs. 3, 6) On
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September 21, 2012, the assigned District Judge denied Plaintiff’s request to exceed the page
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Plaintiff has filed six lawsuits in this division of the District Court of Arizona in the
last seven years. The others are CV-06-1879-PHX-SMM (on appeal); CV-07-1070-PHX-SMM
(ECV) (on appeal); CV-09-1363-PHX-SMM (LOA) (on appeal); CV-09-2152-PHX-SMM
(LOA) (open case at trial level); CV-10-1197-PHX-SMM (LOA) (case final, no appeal). Each
judgment entered in these cases was adverse to Plaintiff.

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limit and file the Complaint, but granted Plaintiff leave to file an amended complaint within

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thirty days thereafter. (Doc. 6)

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Plaintiff filed a First Amended Complaint on October 2, 2012. (Doc. 8) Plaintiff

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raised two grounds for relief against seventeen separate defendants. In Count I, Plaintiff alleged

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he is being deprived of basic necessities in violation of the Eighth Amendment, including

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inadequate plumbing in his cell, unsanitary conditions in his cell and other areas, and the failure

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to provide cleaning supplies to address the unsanitary conditions. In Count II, Plaintiff alleged

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prison officials retaliated against him in violation of the First Amendment for filing a previous

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federal civil rights lawsuit. The District Judge screened the First Amended Complaint in

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accordance with 28 U.S.C. § 1915A(a) on February 19, 2013. (Doc. 9) The District Judge

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dismissed Count II for failure to state a claim, along with three defendants, but ordered fourteen

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defendants to answer the allegations in Count I. (Doc. 9 at 15)

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II. Motion to Compel

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In the Motion to Compel, Plaintiff asks the Court to order Defendant Ryan to produce

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documents responsive to his eight requests for production. Defendant Ryan’s Responses to

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Plaintiff’s First Request for Production, a copy of which is attached to the Motion to Compel,

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reflect that, while Defendant objected to all of the requests for various reasons, Defendant

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produced 19 documents that he claims are responsive to two of Plaintiff’s requests. (Doc. 48

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at 9-32)

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Defendant contends, inter alia, the Motion to Compel should be denied because

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Plaintiff failed to comply with Rule 37(a)(1) of the Federal Rules of Civil Procedure

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(“Fed.R.Civ.P.”) and Rule 7.2(j) of the Local Rules of Civil Procedure (“LRCiv”). Rule

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37(a)(1), Fed.R.Civ.P., provides that a motion to compel “must include a certification that the

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movant has in good faith conferred or attempted to confer with the person or party failing to

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make disclosure or discovery in an effort to obtain it without court action.” The Local Rules

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reiterate this certification requirement and further provide that “[a]ny discovery motion brought

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before the Court without prior personal consultation with the other party and a sincere effort to

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resolve the matter, may result in sanctions.” LRCiv 7.2(j).
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Regarding his obligation to confer in good faith, Plaintiff attaches to his Motion to

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Compel a letter to Defendant’s counsel, dated September 19, 2013, in which he expresses his

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dissatisfaction with Defendant’s responses to the requests for production. (Doc. 48-1 at 20)

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Plaintiff also requests a teleconference with Defendant’s counsel to “confer in good faith and

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attempt to resolve the dispute.” (Id.)

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Plaintiff’s Motion to Compel also includes a certification pursuant to LRCiv 7.2(j),

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explaining his attempt to confer with Defendant’s counsel. (Doc. 48-1 at 18) Plaintiff asserts

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Defendant’s counsel failed to respond to his request to confer. (Id.) Defendant’s counsel

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apparently failed to review these attachments because he argues in the Response that Plaintiff

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failed to comply with the certification and conferral requirements. (Doc. 58 at 6) Moreover,

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Defendant’s counsel presents nothing to show he did respond to Plaintiff’s attempt to confer

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about the dispute. For these reasons, Defendant’s argument that Plaintiff failed to comply with

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Fed.R.Civ.P. 37(a)(1) is without merit.

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Nevertheless, Plaintiff, an experienced pro se litigant, has not demonstrated

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compliance with a different requirement pertaining to motions to compel. LRCiv 37.1 provides

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that a motion to compel discovery shall “set forth, separately from a memorandum of law, the

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following in separate, distinct, numbered paragraphs:

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(1) the question propounded, the interrogatory submitted, the designation
requested or the inspection requested;

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(2) the answer, designation or response received; and
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(3) the reason(s) why said answer, designation, or response is deficient.”
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LRCiv 37.1(a). Civil Local Rule 37.1(a) applies to all pro se litigants, including prisoners. See
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Aros v. Robinson, 2011 WL 643386, at *2 (D. Ariz. Feb. 11, 2011) (“Plaintiff’s failure to
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comply with [LRCiv 37.1(a)] provides an independent sufficient basis to deny his Motion to
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Compel. ”). The requirements of this Local Rule do not apply only “where there has been a
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complete and total failure to respond to a discovery request.” LRCiv 37.1(b).
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A district court’s local rules are not petty requirements, but have “the force of law.”
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Hollingsworth v. Perry, 558 U.S. 183, 191 (2010) (citation omitted). They “are binding upon
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the parties and upon the court, and a departure from local rules that affects substantial rights

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requires reversal.” Professional Programs Group v. Department of Commerce, 29 F.3d 1349,

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1353 (9th Cir. 1994) (internal quotation marks omitted). “A departure is justified only if the

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effect is so slight and unimportant that the sensible treatment is to overlook it.” Id. (citations and

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internal quotation marks omitted). “Anyone appearing before the court is bound by these Local

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Rules[,] including “[p]arties not represented by an attorney unless the context requires

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otherwise.” LRCiv 83.3(c)(1).

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Plaintiff’s Motion to Compel fails to comply with LRCiv 37.1(a). Plaintiff’s motion

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does not set forth, separately from a memorandum of law, in separate, distinct, numbered

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paragraphs, the documents requested, the response received and the reasons why the response

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is deficient. Although Plaintiff attached to his motion a copy of Defendant Ryan’s responses to

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Plaintiff’s requests for production, which included the original requests, Plaintiff did not do

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what the rule requires by explaining, with respect to each response, why it is deficient. This

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requirement enables the Court to address the merits of each request and response individually.

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Much of what Plaintiff argues in the Motion to Compel pertains generally to the admissibility

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of the documents requested and how he was able to obtain similar documents in prior cases.

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LRCiv 37.1(a) requires more. For these reasons, the Court finds Plaintiff’s Motion to Compel

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fails to comply with LRCiv 37.1(a), and it will be denied on that basis.2

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Accordingly,

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IT IS ORDERED that Plaintiff’s Motion to Compel Discovery, doc. 48, is DENIED

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without prejudice. Defense counsel shall promptly respond to Plaintiff’s letter in a good faith

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attempt to avoid judicial involvement in this discovery dispute or narrow the issues upon which

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the parties disagree.
DATED this 8th day of January, 2014.

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Plaintiff’s recently Supplemental Pleading in Support of His Motion to Compel
Discovery, doc. 92, also fails to comply with LRCiv 37.1(a).
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