Robledo #250767 v. Taylor et al

Filing 204

ORDER - The Magistrate Judge's 193 Report and Recommendation is REJECTED.Thus, Defendant's pending Motion for Summary Judgment will be decided based on Defendant's 89 Motion and 90 Supporting Statement of Facts, Plaintiff� 39;s replacement 145 Response and 146 Supporting Statement of Facts, Defendant's 152 Reply in Support of Defendant's Motion for Summary Judgment, Defendant's 153 Objection to Plaintiff's Statement of Facts and Suppleme ntal Statement of Facts, Defendant's 157 Sealed Exhibits to the Supplemental Statement of Facts, and Plaintiff's 198 Controverting Statement of Facts to Defendant's Supplemental Statement of Facts. FURTHER ORDERED Plaintiff's 168 Motion for an Extension of Time is DENIED as moot. Signed by Senior Judge James A Teilborg on 12/21/2016. (ATD)

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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 Paul Anthony Robledo, 10 Plaintiff, 11 ORDER v. 12 No. CV-14-01864-PHX-JAT (DMF) Nicole Taylor, et al., 13 Defendants. 14 15 Plaintiff Paul Anthony Robledo, who is currently confined in Arizona State Prison 16 Complex-Lewis (“ASPC-Lewis”), brought this civil rights case against Defendant Nicole 17 Taylor pursuant to 42 U.S.C. § 1983. (Docs. 16, 109). Pending before the Court is a 18 Report and Recommendation (“R&R”) from the Magistrate Judge, (Doc. 193), 19 recommending the Court do the following: (1) strike the Reply in Support of Defendant’s 20 Motion for Summary Judgment, (Doc. 152); (2) strike Defendant’s Objection to 21 Plaintiff’s Statement of Facts and Supplemental Statement of Facts, (Doc. 153); (3) strike 22 Defendant’s Sealed Exhibits to the Supplemental Statement of Facts, (Doc. 157); 23 (4) deny, as moot, Plaintiff’s Motion for an Extension of Time and for Miscellaneous 24 Relief, (Doc. 168); and (5) deny, as moot, Plaintiff’s Supplement to his Motion for an 25 Extension, (Doc. 187). 26 I. BACKGROUND 27 Plaintiff is suing Defendant, who was a psychologist at ASPC-Lewis, for allegedly 28 denying him constitutionally adequate medical care in violation of the Eighth 1 Amendment. (Doc. 16 at 3, 8). 2 In response to Plaintiff’s Motion to Compel Defendant to Produce his Medical and 3 Mental Health Records, (Doc. 58), the Magistrate Judge granted Plaintiff’s Motion 4 pursuant to Arizona Department of Corrections Department Order 1104. (Doc. 61 at 2). 5 Department Order 1104 sets forth a specific procedure in response to an inmate’s request 6 to review his mental health records. 1 Ariz. Dep’t of Corr. Dep’t Order 1104.02. First, a 7 psychiatrist or licensed psychologist determines whether an inmate’s review of his mental 8 health records would be “detrimental to the inmate’s condition or treatment.” Id. 9 at 1104.02(1.2.4). Next, where “there is no contraindication to the inmate reviewing” 10 particular sections of the records, the inmate may review those sections in the presence of 11 the reviewing psychiatrist or licensed psychologist. Id. at 1104.02(1.2.5). However, for 12 sections of the records for which review is contraindicated, the psychiatrist or licensed 13 psychologist is to “verbally advise” the inmate that access to the records is denied. Id. 14 at 1104.02(1.2.6). 15 Defendant filed a Motion for Summary Judgment and accompanying Statement of 16 Facts, which, because Plaintiff had not yet complied with Department Order 1104, 17 contained excerpts of Plaintiff’s mental health records that had not been produced to him. 18 (Docs. 89, 90, 105, 107). Six weeks after filing her Motion for Summary Judgment, 19 Defendant filed a motion to seal the “documents attached as exhibits and submitted in 20 support of [Defendant’s] Statement of Facts in [S]upport of [Defendant’s] Motion for 21 Summary Judgment.” (Doc. 107). Given Defendant’s delay and the fact that Plaintiff had 22 already reviewed the filed portions of Plaintiff’s mental health records, the Magistrate 23 Judge ordered Defendant to “produce to Plaintiff a full copy of Plaintiff’s mental health 24 1 25 26 27 28 The Court notes that Department Order 1104.03 sets forth a specific procedure by which inmates may “obtain copies of their medical records for use in litigation of medical issues.” Ariz. Dep’t of Corr. Dep’t Order 1104.03 (2012). The parties appear to have disregarded this Department Order and instead used Department Order 1104.02, by which an inmate may simply “review” his medical records. Id. at 1104.02; see also, e.g., Aros v. Ryan, No. CV11-2565-PHX-SRB (LOA), 2014 WL 936131, at *3 (D. Ariz. Mar. 11, 2014) (requiring a plaintiff to attempt to obtain his medical records following the procedures set forth in ADOC Department Order 1104.02 before filing a motion to compel with the court). -2- 1 records” in her possession, instructing that “a mental health provider need not be present 2 during Plaintiff’s review of such records.” (Doc. 120 at 3–4). 3 Plaintiff later filed a “Motion for Interrogatories,” with five questions regarding 4 terms or phrases from Plaintiff’s mental health records that Plaintiff found unclear. 2 5 (Doc. 125). Plaintiff asked that the interrogatories be “answered by the [Facility Health 6 Administrator (“FHA”)] at ASPC-Lewis or any other qualified individual.” (Id. at 2). The 7 Magistrate Judge ordered that “Defendant shall respond to [Plaintiff’s] Motion.” 8 (Doc. 127). In her Response, Defendant stated that “Defendant Taylor will timely 9 respond to Plaintiff’s Interrogatories.” (Doc. 129) (emphasis added). In a following 10 Order, however, the Magistrate Judge, noted that “Defendant has responded that 11 Defendant will timely answer the interrogatories” and, therefore, ordered that “Defendant 12 timely answer Plaintiff’s [I]nterrogatories.” (Doc. 130) (emphasis added). In responding 13 to Plaintiff’s Interrogatories, Defendant drafted the following objection for each question: 14 OBJECTION. Plaintiff specifically notes he “submits [his Interrogatory] to Defendant Taylor to by [sic] answered by the FHA at ASPC-Lewis [where he is presently incarcerated] or any other qualified individual” . . . . Plaintiff’s 15 16 17 18 19 20 21 22 23 24 25 26 27 2 Plaintiff’s Motion for Interrogatories included the following questions: (1) What does the following mean: NOS[;] Diagnosis Deferred On Axis II[;] Axis I, II, III, etc.[;] Diagnosis Code[s] #311[,] #298.9[,] 799.9a[,] #e99.04[,] #e99.11[,] #309.28[.] *These terms and codes are in my mental health record[;] (2) When my mental health record states: “Rule Out Malingering Assessed,” does it mean that a provider determined I was not malingering?[;] (3) If “no” to #2, what does: “Rule Out Malingering Assessed” mean?[;] (4) When my mental health record states: “Rule Out Personality Disorder Assessed,” does it mean that a provider determined I do not have a personality disorder?[;] (5) If “no” to #4, what does: “Rule Out Personality Disorder Assessed” mean? 28 (Doc. 125 at 4). -3- Interrogatory therefore requests a response from an individual other than a party to this lawsuit, i.e., Defendant Taylor. Plaintiff fails to cite to any authority that requires a party to respond to a discovery request that is not directed to any party in a lawsuit. Rule 33 allows a party to serve on any other party a request for written interrogatories. Plaintiff’s discovery request is not directed to any party as required under Rule 33. As such, no response from Defendant Taylor is warranted. To the extent Plaintiff seeks a Response from the FHA or any other qualified individual, he may utilize the Health Needs Request forms, which are available to him at ASPC-Lewis. 1 2 3 4 5 6 7 8 (See Doc. 144 at 5–8). In response to Defendant’s objections, Plaintiff filed a Motion to 9 Compel, asking the Magistrate Judge to order Defendant to respond to his Interrogatories. 10 (Id. at 1–4). The Magistrate Judge, construing Plaintiff’s Motion as a request for 11 sanctions, found “that Defendant and her counsel provided evasive and incomplete 12 responses to Plaintiff’s Interrogatories” and ordered that Defendant “timely and 13 completely answer” Plaintiff’s Interrogatories and show cause as to why the Court should 14 not sanction Defendant under Federal Rule of Civil Procedure (“Federal Rule”) 37. 15 (Doc. 150 at 6–7). 16 II. REPORT AND RECOMMENDATION 17 A. Legal Standard 18 The Court “may accept, reject, or modify, in whole or in part, the findings or 19 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that 20 the district judge must review the magistrate judge’s findings and recommendations de 21 novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 22 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc); accord Schmidt v. Johnstone, 23 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court 24 concludes that de novo review of factual and legal issues is required if objections are 25 made, ‘but not otherwise.’”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land 26 Mgmt., 589 F.3d 1027, 1032 (9th Cir. 2009) (holding that the district court “must review 27 de novo the portions of the [Magistrate Judge’s] recommendations to which the parties 28 object”). District courts are not required to conduct “any review at all . . . of any issue that -4- 1 is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis 2 added); see also 28 U.S.C. 636(b)(1) (“A judge of the court shall make a de novo 3 determination of those portions of the [R&R] to which objection is made.”). 4 B. 5 Both Plaintiff and Defendant object to the Magistrate Judge’s R&R. Defendant 6 argues that sanctions are not appropriate and, alternatively, that the sanctions 7 recommended are inappropriate in relation to Defendant’s conduct. (Doc. 200). Plaintiff 8 argues that “the only suitable sanction is rendering a default judgment against 9 Defendant.” (Doc. 197 at 6). Analysis 10 Upon a party’s motion, a court may impose sanctions on another party pursuant to 11 Federal Rule 37(d). Fed. R. Civ. P. 37(d)(1)(A). Federal Rule 37(d)(1)(A)(ii) provides 12 that a court may order sanctions if “a party, after being properly served with 13 interrogatories under [Federal] Rule 33 fails to serve its answers, objections, or written 14 response.” However, the Ninth Circuit Court of Appeals (the “Ninth Circuit”) has held 15 that Federal Rule 37(d) is only triggered when a party completely fails to respond to 16 another party’s interrogatories. See Fjelstad v. Am. Honda Motor Co., 762 F.2d 1334, 17 1339–40 (9th Cir. 1985) (holding that Federal Rule 37(d) “did not give the district court 18 authority to impose sanctions against” a party because the party “did not ‘fail . . . to serve 19 answers or objections to interrogatories’” (quoting Fed. R. Civ. P. 37(d))); see also 20 Unigard Sec. Ins. Co. v. Lakewood Eng’g & Mfg. Corp., 982 F.2d 363, 368 (9th Cir. 21 1992) (“[W]e [have] held that [Federal] Rule 37(d) does not extend to situations in which 22 the rule is ‘inapplicable by its very terms,’ even when general discovery misconduct is 23 alleged.” (quoting Halaco Eng’g Co. v. Costle, 843 F.2d 376, 380 n.1 (9th Cir. 1992))). 24 Further, Federal Rule 37(d)(1)(B) requires that a party requesting sanctions “must include 25 a certification that the movant has in good faith conferred or attempted to confer with the 26 party failing to act in an effort to obtain the answer or response without court action.” 27 Here, Federal Rule 37(d) is not triggered for two reasons. First, Defendant did 28 respond to Plaintiff’s interrogatories. The Magistrate Judge noted that Federal Rule -5- 1 37(d)(2) states that a “failure described in [Federal] Rule 37(d)(1)(A) is not excused on 2 the ground that the discovery sought was objectionable” and, thus, found that 3 Defendant’s objections were no excuse to possible Federal Rule 37 sanctions. (Doc. 193 4 at 6). However, as described above, the Ninth Circuit has held that Federal Rule 5 37(d)(1)(A) is not triggered unless a party completely fails to respond. Given the Ninth 6 Circuit’s holding, the situation that Federal Rule 37(d)(2) appears to anticipate is where a 7 party refuses to even respond to interrogatories because the party finds them 8 objectionable. 9 Second, Plaintiff has failed to comply with Federal Rule 37(d)(1)(B), which 10 requires a movant to certify that he has, in good faith, conferred or attempted to confer 11 with the noncompliant party. Plaintiff’s Motion to Compel, (Doc. 144), which the 12 Magistrate Judge construed as Plaintiff’s motion for sanctions, (Doc. 150 at 6), contains 13 no certification and details no attempt to resolve the parties’ dispute without court 14 involvement. All discovery is conducted pursuant to Federal Rule 1, which directs that 15 the rules “shall be construed and administered to secure the just, speedy, and inexpensive 16 determination of every action.” Fed. R. Civ. P. 1. The Court expects the parties to carry 17 out the spirit of the Federal Rules by working collaboratively throughout the discovery 18 process and attempting to resolve any differences before bringing those issues to the 19 Court for disposition. The provision in Federal Rule 37(d)(1)(B) serves a valuable 20 purpose in reminding parties that the role of a federal court is not to micromanage all 21 disputes between parties during discovery. Because Plaintiff has not complied with 22 Federal Rule 37(d)(1)(B) by attempting to confer with Defendant regarding this dispute, 23 the sanctions provisions available under Federal Rule 37(d) are not triggered. 24 The Court further finds that no other sanctions are warranted at this time. For 25 example, while a federal court may impose sanctions against anyone “who so multiplies 26 the proceedings in any case unreasonably and vexatiously,” 28 U.S.C. § 1927, 27 Defendant’s filings have not been vexatious. Additionally, Plaintiff’s Motion to Compel 28 is procedurally defective to warrant Federal Rule 11 sanctions. See Fed. R. -6- 1 Civ. P. 11(c)(2) (providing for a 21-day safe harbor between service of motion and 2 filing). Finally, while a federal court has the inherent power to levy sanctions for a 3 party’s “bad faith or willful disobedience of a court’s order,” Chambers v. NASCO, Inc., 4 501 U.S. 32, 46–47 (1991), the Magistrate Judge explicitly noted that Defendant had not 5 acted in bad faith, (see Doc. 120 at 3 (“[T]he Court does not find Defendant was acting at 6 any time in bad faith . . . .”)). Thus, the Court finds that sanctions against the Defendant 7 are inappropriate at this time. 3 8 III. 9 CONCLUSION Based on the foregoing, 10 IT IS ORDERED the Magistrate Judge’s Report and Recommendation 11 (Doc. 193) is REJECTED. 4 Thus, Defendant’s pending Motion for Summary Judgment 12 will be decided based on Defendant’s Motion and Supporting Statement of Facts 13 (Docs. 89, 90), Plaintiff’s replacement Response and Supporting Statement of Facts 14 (Docs. 145, 146), Defendant’s Reply in Support of Defendant’s Motion for Summary 15 Judgment (Doc. 152), Defendant’s Objection to Plaintiff’s Statement of Facts and 16 Supplemental Statement of Facts (Doc. 153), Defendant’s Sealed Exhibits to the 17 Supplemental Statement of Facts (Doc. 157), and Plaintiff’s Controverting Statement of 18 Facts to Defendant’s Supplemental Statement of Facts (Doc. 198). 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 3 26 27 28 Because the Court rejects the Magistrate Judge’s R&R, the Court must rule on Plaintiff’s Motion for an Extension of Time to File a Controverting Statement of Facts to Defendant’s Supplemental Statement of Facts (Doc. 168). Because Plaintiff has filed a Supplemental Statement of Facts, (Doc. 198), on November 23, 2016, the Court rules that Plaintiff’s filing was timely and his Motion for an Extension of Time is moot. 4 The parties’ objections are sustained and/or rejected consistent with this Order. -7- 1 2 3 IT IS FURTHER ORDERED Plaintiff’s Motion for an Extension of Time (Doc. 168) is DENIED as moot. Dated this 21st day of December, 2016. 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 -8-

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