Calloway v. Warden Corcoran State Prison et al

Filing 149

ORDER granting in part and denying in part 145 Motion to reopen Discovery signed by Magistrate Judge Barbara A. McAuliffe on 3/27/2014. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAMISI JERMAINE CALLOWAY, 12 13 14 Plaintiff, v. A. K. SCRIBNER, et al., 15 Defendants. 16 17 ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:05-cv-01284-BAM PC ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO REOPEN DISCOVERY (ECF No. 145) SIXTY-DAY DEADLINE 18 I. 19 Plaintiff Jamisi Jermaine Calloway (“Plaintiff”) is a state prisoner proceeding with counsel in Background 20 this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s first amended 21 complaint, filed on December 13, 2007, against Defendants Montgomery, Babb and Bhatt for 22 violation of the Eighth Amendment. Discovery in this action has closed and the parties’ cross-motions 23 for summary judgment have been denied. The parties have consented to the jurisdiction of the United 24 States Magistrate Judge. 25 On December 4, 2013, the Court issued an Amended Second Scheduling Order. Pursuant to 26 that Order, the Court set a telephonic trial confirmation hearing for January 16, 2014, and a jury trial 27 for February 25, 2014. The Court also set pretrial dates related to the filing of pretrial statements and 28 1 1 the procedures for obtaining the attendance of incarcerated and unincarcerated witnesses. (ECF No. 2 127.) 3 On December 16, 2013, Plaintiff’s pro bono counsel filed a notice of appearance in this action. 4 (ECF Nos. 130, 131.) On November 19, 2013, Defendants designated new counsel from the Attorney 5 General’s office, and terminated prior counsel. (ECF No. 133.) 6 On December 20, 2013, Plaintiff filed a motion to continue the jury trial and pretrial deadlines 7 set by the Amended Second Scheduling Order for 120 days. (ECF No. 135.) On January 14, 2014, 8 the Court granted the motion to modify the Amended Second Scheduling Order and set this matter for 9 a telephonic trial confirmation hearing on May 7, 2010. Additionally, the Court ordered Plaintiff to 10 11 file any motion to reopen discovery within fifteen days. (ECF No. 144.) On January 29, 2014, Plaintiff filed the instant motion to reopen discovery. (ECF No. 145.) 12 Defendants opposed the motion on February 18, 2014, and Plaintiff replied on February 21, 2014. 13 (ECF Nos. 146, 147.) The motion is deemed submitted. Local Rule 230(l). 14 II. Legal Standard 15 Pursuant to Rule 16(b), a scheduling order “may be modified only for good cause and with the 16 judge’s consent.” Fed. R. Civ. P. 16(b)(4). The “good cause” standard “primarily considers the 17 diligence of the party seeking the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 18 609 (9th Cir. 1992). The court may modify the scheduling order “if it cannot reasonably be met 19 despite the diligence of the party seeking the extension.” Id. If the party was not diligent, the inquiry 20 should end. Id. 21 Courts have permitted the reopening of discovery where a state prisoner proceeding pro se 22 moved to reopen discovery following the appointment or retention of counsel after the discovery cut- 23 off date. In so doing, courts have considered not only the diligence of the prisoner in pursuing 24 discovery, but also the necessity of additional discovery for trial preparation and for resolution of the 25 matter on the merits. See, e.g., Draper v. Rosario, 2013 WL 6198945, at *1-2 (E.D. Cal. Nov. 27, 26 2013) (court permitted pro se prisoner to reopen discovery when he acquired pro bono counsel after 27 the discovery cut-off date; counsel alone did not entitle plaintiff to additional discovery, but limited 28 additional discovery would serve the ultimate resolution of case on the merits); Woodard v. City of 2 1 Menlo Park, 2012 WL 2119278, at *1-2 (N.D. Cal. June 11, 2012) (discovery reopened for pro se 2 plaintiff who obtained counsel after the discovery cut-off date, noting that additional fact discovery 3 would serve the interest of justice and the public policy of adjudicating cases on the merits); 4 Henderson v. Peterson, 2011 WL 441206, at *2 (N.D. Cal. Feb. 3, 2011) (court noted that despite pro 5 se plaintiff’s discovery efforts, he was unable to gain access to evidence that he might have obtained 6 had he been represented by counsel). 7 III. 1. Plaintiff’s Position 8 9 Discussion Plaintiff moves for a court order (1) modifying the current scheduling order to reopen 10 discovery until May 7, 2014; (2) permitting Plaintiff to serve each defendant with up to 25 11 interrogatories beyond what has already been served; (3) deposing Defendants Montgomery, Babb and 12 Bhatt; (3) propounding written discovery of 18 new witnesses disclosed in Defendants’ pretrial 13 statement; and (4) deposing the newly identified witnesses. 14 Plaintiff argues that good cause exists to modify the scheduling order and reopen discovery. 15 First, Plaintiff contends that he diligently pursued discovery in this matter, but because of his pro se 16 status and limited resources he was unable to gain access to evidence and information pertinent to his 17 claims, such as the identity of witnesses with discoverable information, documents related to 18 Defendants’ searches of Plaintiff, including the forcible enema on March 14, 2013, and documents 19 Defendants intend to use in support of their defenses. Plaintiff further contends that because he 20 proceeded pro se and was incarcerated, he was unable to obtain initial disclosures required by Federal 21 Rule of Civil 26(a) and was unable to take any depositions. 22 Second, Plaintiff asserts that he was not dilatory in conducting discovery in this matter, having 23 attempted to obtain discovery as best as he could. For instance, Plaintiff served requests for 24 production of documents on all defendants, which included pertinent medical records. Plaintiff’s 25 counsel now reports that Plaintiff only received a portion of the medical files and requested 26 documents. (ECF No. 145-1, Declaration of Jason H. Tokoro (“Tokoro Dec.”), Ex. B.) Plaintiff also 27 served requests for admissions and interrogatories, but did not receive meaningful responses. (Id., 28 Exs. C, D.) 3 Third, Plaintiff asserts that good cause exists to reopen discovery based on the 18 new 1 2 witnesses identified in Defendants’ pretrial statement, including 10 expert witnesses. Although 3 Defendants have clarified that they intend to call 11 witnesses at trial, many of them were not 4 identified until the pretrial statement. (ECF No. 145-1, Tokoro Dec. ¶ 5.) Based on the recent 5 disclosure, Plaintiff believes that Defendants cannot now complain about the reopening of discovery. 6 As a final matter, Plaintiff believes that additional discovery will not prejudice Defendants or 7 delay the proceedings because there is no trial date set in this matter and Defendants will have 8 adequate time to respond to discovery. 2. Defendants’ Opposition 9 Defendants respond that Plaintiff failed to diligently pursue discovery while proceeding pro se 10 11 and he is not entitled to additional time simply because he is now represented by counsel. With regard 12 to depositions, Defendants argue that Plaintiff took no steps to depose any witnesses in this case prior 13 to the close of discovery. Although Defendants explained the logistics of scheduling a deposition, 14 Plaintiff was not prevented from conducting deposition discovery. (ECF No. 146, pp. 2-3.) In other 15 words, Plaintiff did not unsuccessfully attempt to conduct deposition discovery prior to the relevant 16 deadline. 17 With regard to written discovery, Defendants also argue that Plaintiff did not diligently pursue 18 his motion to compel. On June 7, 2012, Plaintiff filed a motion to compel, which the Court denied as 19 procedurally deficient on July 24, 2012. (ECF No. 93.) Although the Court extended the deadline to 20 file a motion to compel, Plaintiff did not re-file his motion. He also did not request to serve additional 21 written discovery or to exceed the discovery limits imposed by the Federal Rules of Civil Procedure. 22 Thus, Defendants contend that Plaintiff has not established good cause to reopen discovery in this 23 matter. 24 Defendants further argue that the requested discovery is excessive and unnecessary. First, 25 Defendants indicate that documents from Plaintiff’s central file, including his medical records have 26 been provided to Plaintiff’s counsel. (ECF No. 146, p. 4.) Defendants also report that the testimony 27 of 8 witnesses (CDCR Chief Deputy Warden V. Yamamoto, CDCR Correctional Officer A. Pyle, 28 CDCR Correctional Officer P. Tome, CDCR Sgt. V. Rangel, CDCR Correctional Officer W. Alford, 4 1 CDCR Psychological Technician R. Dowling, CDCR R. Garrison, LCSW, and CDCR R. Gibson, 2 MSW) likely would be limited to the content of documents they authored. As result, their depositions 3 would not be necessary. (ECF No. 146, pp. 4-5.) 4 Defendants next argue that the requested depositions and interrogatories will significantly add 5 to the expense of litigating this matter, causing Plaintiff’s attorneys’ fees and costs to increase beyond 6 the value of Plaintiff’s claimed injury. As a practical matter, the increased litigation costs would 7 remove any motivation on the part of Defendants to resolve this case on a “cost of defense” basis. 3. Plaintiff’s Reply 8 9 Plaintiff replies that he has demonstrated due diligence in pursuing discovery. He actively 10 pursued written discovery, but was hampered by his pro se and indigent status. Plaintiff asserts that 11 despite his efforts he was unable to gain access to crucial evidence and information that he would have 12 received had he been represented. He also did not have the financial means to pursue depositions in 13 this matter. 14 With regard to the requested discovery, Plaintiff contends that his request related to the newly 15 disclosed witnesses is not excessive or surprising. Per Plaintiff, there is no dispute that these witnesses 16 possess relevant information and there is no indication that their testimony would be limited to the 17 documents that they authored. As a final matter, Plaintiff essentially asserts that Defendants’ 18 arguments regarding settlement are unavailing since Defendants have not demonstrated any 19 motivation to resolve this case. 20 21 4. Analysis Having considered the parties’ arguments, the Court finds good cause to reopen discovery in 22 this action as it will assist in resolution of this matter on its merits. Plaintiff diligently pursued 23 discovery to the best of his ability given his pro se and indigent status. In particular, Plaintiff served 24 written discovery, but was unsuccessful in his efforts to compel further responses due to his pro se 25 status. Such difficulty is evident by his procedurally deficient motion to compel. (ECF Nos. 90, 93.) 26 Plaintiff also was unsuccessful in conducting depositions given his indigent status. Although 27 Defendants contend that Plaintiff was not diligent in pursuing depositions because he took no steps to 28 depose any witnesses, Defendants do not identify what steps Plaintiff could have taken to schedule 5 1 such depositions. In the absence of financial means, Plaintiff could not have secured an appropriate 2 deposition officer or obtained copies of any deposition transcript. See Fed. R. Civ. P. 30(b)(5), (f)(3). 3 However, once Plaintiff secured representation in this matter, counsel diligently sought to modify the 4 relevant deadlines and to reopen discovery. (ECF Nos. 135, 145.) 5 The Court does not find that Defendants will be prejudiced by the reopening of discovery. A 6 trial date has not been scheduled in this matter and Defendants will be afforded sufficient time to 7 respond to any permitted discovery. Moreover, the Court finds that the proposed scope of discovery 8 should be narrowed. 9 10 Written Discovery With regard to written discovery, it appears from Defendants’ representations that Plaintiff’s 11 counsel has been provided with central file documents and medical records relevant to Plaintiff’s 12 claims in this action. There is no indication that further document requests are warranted. Plaintiff 13 also has not established to the Court’s satisfaction that an additional 25 interrogatories for each 14 defendant is warranted in conjunction with written discovery propounded on any newly identified 15 witness. Plaintiff previously propounded written discovery on each defendant and any further written 16 discovery should be narrowly tailored to the remaining issues in this matter, namely Plaintiff’s 17 allegations that Defendants subjected him to an unnecessary and painful enema procedure in violation 18 of the Eighth Amendment. As such, the Court finds it appropriate to permit Plaintiff to propound ten 19 (10) additional interrogatories to each defendant in this action. 20 Deposition Discovery 21 With regard to deposition discovery, the Court will permit Plaintiff to conduct depositions of 22 Defendants Montgomery, Babb and Bhatt. This additional fact discovery will assist in resolving this 23 matter on its merits. However, conducting depositions of all percipient and expert witnesses identified 24 in Defendants’ pretrial statement is excessive. 25 Percipient Witnesses 26 In addition to Defendants Montgomery, Babb and Bhatt, Defendants have identified 12 27 additional percipient witnesses, which include 2 custodians of records. Plaintiff does not need to 28 depose the custodians of records. Further, Defendants have indicated that 8 other percipient witnesses 6 1 (CDCR Chief Deputy Warden V. Yamamoto, CDCR Correctional Officer A. Pyle, CDCR 2 Correctional Officer P. Tome, CDCR Sgt. V. Rangel, CDCR Correctional Officer W. Alford, CDCR 3 Psychological Technician R. Dowling, CDCR R. Garrison, LCSW, and CDCR R. Gibson, MSW) 4 likely will testify only to the content of documents they authored. These documents have been 5 provided to Plaintiff’s counsel. Accordingly, there are only two remaining percipient witnesses 6 appropriate for deposition: (1) CDCR Sgt. T. Gonzalez, and (2) CDCR Sgt. J. Torres. Defendants 7 will be granted leave to conduct the depositions of Sgt.Gonzalez and Sgt. Torres. 8 Expert Witnesses 9 Defendants have identified 9 expert witnesses.1 As discussed above, the Court has granted 10 Plaintiff leave to depose Sgt. Gonzalez, who is listed as both a percipient and an expert witness. The 11 remaining eight (8) expert witnesses proposed by Defendants appear to be providing duplicative or 12 cumulative testimony. According to Defendants’ pretrial statement, proposed experts CDCR Bruce Barnett, M.D., and 13 14 CDCR P. Zuckerman, M.D., are expected to “testify concerning the injuries and treatment caused by 15 the incident of March 14, 2003, documented in the Calloway’s medical records, Calloway’s pre- 16 existing injuries and conditions, and Calloway’s subsequent injuries and conditions.” (ECF No. 140, 17 p. 12.) Similarly, proposed experts CDCR Shama Chaiken, Ph.D, CDCR Bret McLaughlin, Ph.D, 18 CDCR B. Becich, Ph.D, CDCR B. Wagner, Ph.D, CDCR R. Garrison, LCSW, and CDCR R. Gibson, 19 MSW, are expected to “testify concerning the injuries and treatment caused by the incident of March 20 14, 2003, documents in the Calloway’s medical records, Calloway’s pre-existing injuries and 21 conditions, and Calloway’s subsequent injuries and conditions.” (ECF No. 140, pp. 12, 13.) The Court will not permit cumulative testimony at trial. Fed. R. Evid. 403 (court may exclude 22 23 relevant evidence if its probative value is substantially outweighed by a danger of needlessly 24 presenting cumulative evidence). As such, the parties are directed to meet and confer in good faith to 25 narrow the number of Defendants’ experts to be used at trial and to be deposed by Plaintiff. If the 26 parties are unable to reduce the number of Defendants’ experts, then Plaintiff shall be given leave to 27 28 1 Defendants originally identified 10 expert witnesses. However, they subsequently clarified that Sgt. Torres would testify solely as a percipient witness. (ECF No. 146, p. 5.) 7 1 depose all of Defendants’ proposed experts listed in the January 3, 2014 pretrial statement. In that 2 event, however, the Court may exercise its discretion to preclude the trial testimony of those expert 3 witnesses not properly identified or limited by Defendants during meet and confer discussions. 4 IV. 5 Based on the above, Plaintiff’s motion to reopen discovery is GRANTED IN PART and 6 7 DENIED IN PART as follows: 1. Plaintiff is granted leave to propound ten (10) additional interrogatories to each defendant in this action; 8 9 Conclusion and Order 2. Plaintiff is granted leave to conduct the following depositions: (1) Defendant 10 Montgomery; (2) Defendant Babb; (3) Defendant Bhatt; (4) Sgt. Gonzalez; and (5) Sgt. 11 Torres. 12 3. Within ten (10) days of the date of this order, the parties are directed to meet and confer in 13 good faith to reduce the number of Defendants’ experts to be called at trial and to be 14 deposed by Plaintiff. If the parties cannot reduce the number of Defendants’ experts, then 15 Plaintiff is granted leave to conduct the depositions of all proposed experts identified in 16 Defendants’ pretrial statement; and 17 4. The limited discovery outlined above shall be completed within sixty (60) days of the date of this order. 18 19 20 21 22 IT IS SO ORDERED. Dated: /s/ Barbara March 27, 2014 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 8

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