Farley v. Capot et al
Filing
80
ORDER DENYING Plaintiff's 65 Motion to Compel signed by Magistrate Judge Michael J. Seng on 9/13/2011. (Marrujo, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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LEONARD FARLEY,
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CASE NO.
Plaintiff,
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1:06-cv-1760-LJO-MJS (PC)
ORDER DENYING PLAINTIFF’S MOTION TO
COMPEL
v.
(ECF Nos. 65)
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DR. HAROLD TATE,
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Defendant.
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Plaintiff Leonard Farley (“Plaintiff”) is a state prisoner proceeding pro se and in
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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
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I.
INTRODUCTION; PROCEDURAL HISTORY
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Plaintiff’s Amended Complaint has been screened and found to state a cognizable
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claim against Defendants Capot and Tate. (Order, ECF No. 17.) Defendants filed a
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Motion to Dismiss (ECF No. 22); it was granted on March 25, 2009 (ECF No. 33). On
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appeal, the Ninth Circuit found that the claim against Defendant Capot had been properly
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dismissed, but that the district court had erred in dismissing the claim against Defendant
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Tate. (Mem., ECF No. 39.) Accordingly, the case proceeded against Defendant Tate, and
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he filed his Answer on August 25, 2010. (Answer, ECF No. 48.) The parties then
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undertook discovery.
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Before the Court is Plaintiff’s January 25, 2011 Motion to compel Defendant Tate’s
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further responses to Plaintiff’s request for production of documents, interrogatories and
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requests for admission. (Mot., ECF No. 65.) Defendant Tate filed an Opposition on
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February 14, 2011. (Opp’n, ECF No. 66.)
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II.
PLAINTIFF’S REQUESTS
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Plaintiff seeks to compel Defendant Tate’s additional response to all of Plaintiff’s
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discovery requests. Plaintiff’s various requests are listed, by category of discovery device,
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below:
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A.
Plaintiff’s Requests for Production of Documents
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1.
Any and all grievances, complaints, or other documents received by the
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Defendants or their agents at Tehachapi State Prison concerning
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mistreatment, inadequate medical care, denial of treatment of inmates by
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Defendant Dr. Harold Tate, and any memoranda, investigative files, or other
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documents created in response to such documents, since January 1, 2005.
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2.
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procedures, both in general population and in segregation.
3.
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Any and all policies, directives, or instructions to staff governing sick call
The Plaintiff’s complete medical records from September 5, 2004 to the date
of [Defendant Tate’s] response.
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Any logs, lists, or other documentation reflecting grievances filed by
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Tehachapi State Prison inmates about receiving inadequate medical care,
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or denial of treatment from Dr. Harold Tate, from January 1, 2004 to the Date
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of [Defendant Tate’s] response.
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5.
Any and all documents created by any Tehachapi State Prison staff member
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in response to a grievance filed by the Plaintiff in January, 2005 concerning
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his medical care.
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6.
Any and all documents created by any Tehachapi State Prison staff member
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from September 5, 2004 to date, concerning the Plaintiff’s medical care and
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not included in items 4,5,6, of [Plaintiff’s Request for Production of
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Documents].
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B.
Plaintiff’s Interrogatories Combined with Requests for Production of
Documents
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1.
State the duties of Defendant Dr. Harold Tate, Chief Medical Officer at
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Tehachapi State Prison. If those duties are set forth in any job description
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or other document, produce the document
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2.
State the duties of Defendant Dr. Harold Tate, Chief Medical Officer at
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Tehachapi State Prison, insofar as they pertain to providing medical care to
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prisoners or transportation of prisoners to medical appointments or facilities.
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If those duties are set forth in any job description or other document, product
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the document.
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3.
State the names, titles, and duties of all staff members at Tehachapi State
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Prison, other than Defendant Tate, who have responsibility for scheduling
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prisoners’ medical appointments outside the prison, or for evaluating
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requests for specialized treatment or evaluation. If those duties are set forth
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in any job description, or other document, produce the document.
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4.
State the names, titles, and duties of all staff members at Tehachapi State
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Prison, other than Defendant, who have responsibility for ensuring that
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inmates requests for medical attention are responded to. If those duties are
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set forth in any job description, or other document, produce the document.
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5.
State the procedure in effect during September, 2004 at Tehachapi State
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Prison for conducting sick call, including the procedure by which inmates sign
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up for or request sick call. If the procedure is different for segregation
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inmates than for general population inmates, state both procedures. If those
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procedures are set forth in any policy, directive, or other document, produce
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the document.
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6.
State the names, titles, and duties of all staff members at Tehachapi State
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Prison who have responsibility for responding to, investigating or deciding
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inmate grievances. If those duties are set forth in any job description, policy,
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directive, or other document, produce the document.
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7.
State the procedure in effect during September, 2004 at Tehachapi State
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Prison for responding to, investigating and deciding inmate grievances. If the
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procedure for handling grievances based on medical complaints is different
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from the procedure for handling other kinds of grievances, state both
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procedures. If those procedures are set forth in any directive, manual or
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other document, produce the document.
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C.
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1.
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The Plaintiff was transported to the emergency room of Mercy Hospital in
Bakersfield California, on April 12, 2005.
2.
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Plaintiff’s Requests for Admission
The Plaintiff was examined at Mercy Hospital by physician Dr. Ronald
Rodriguez.
3.
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Dr. R. Rodriguez concluded that the Plaintiff was suffering from a cancerous
tumor.
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4.
Dr. Rodriguez, removed cancerous tumor on April 13, 2005.
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5.
It is the routine and established practice at Tehachapi Prison to send a
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“Tehachapi Prison Hospital Referral Form” along with every inmate who is
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taken to a hospital.
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6.
It is the routine and established practice at Mercy Hospital to write on the
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referral form the patient’s diagnosis, the treatment provided at the hospital,
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and directions for follow-up treatment after the patient’s return to the prison.
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7.
It is the routine and established practice at Tehachapi Prison for the Chief
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Medical Officer to review all referral forms to ensure that the patient receives
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appropriate follow up treatment.
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8.
Dr. Rodriguez’s directions regarding Plaintiff’s continued treatment of cancer
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situation, and provision of physical therapy were placed in writing on a
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referral form.
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9.
The referral form containing Dr. Rodriguez’s directions was returned to the
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prison along with the Plaintiff consistently with the prison’s routine and
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established practice.
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10.
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Dr. Tate, reviewed the referral from bearing Dr. Rodriguez’s directions
consistently with the prison’s routine and established practice.
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11.
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As of this date, the Plaintiff has not been provided with physical therapy
needed to heal correctly from surgery on April 13, 2005.
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12.
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There is an informal policy at Tehachapi Prison giving low priority to the
medical needs of the inmates housed there.
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13.
The failure to remove the Plaintiff’s cancerous tumor in a timely manner
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resulted from the application of the informal policy stated in item 12 of this
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request.
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14.
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the Plaintiff.
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15.
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Defendant Tate took no action to ensure that the Plaintiff [sic] tumor was
removed in a timely manner.
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16.
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There is an informal policy at Tehachapi Prison that inmates are not sent out
of the prison for medical care unless their lives are at risk.
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17.
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The failure to provide needed surgery to the Plaintiff resulted from the
application of the informal policy stated in item 14 of this request.
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18.
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Defendant Tate knew of this policy and acquiesced in it’s [sic] application to
the Plaintiff.
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19.
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Defendant Tate took no action to ensure that Plaintiff receive the proper
medical care after surgery on April 13, 2005.
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20.
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Defendant Tate took no action to ensure that Plaintiff be placed in proper
housing so he could receive proper treatment after surgery on April 13, 2005.
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21.
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Defendant Tate knew of this policy and acquiesced in it’s [sic] application to
The failure to provide physical therapy, proper housing for the Plaintiff
presents a substantial risk to Plaintiff [sic] health and safety.
III.
PLAINTIFF’S ARGUMENT
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Plaintiff served his discovery requests on September 14, 2010. Defendant Tate did
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not respond in the time allotted under applicable rules. After Plaintiff wrote and advised
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him that responses were past due, Defendant requested that his deadline to respond be
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extended to December 15, 2010. At some point prior to December 20, 2010, Plaintiff
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received Defendant Tate’s responses. On December 20, 2010, Plaintiff wrote and advised
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that the responses were incomplete and requested additional information. Plaintiff advised
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that he would file a Motion to Compel if he did not hear from Defendant Tate within 20
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days.
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Plaintiff now argues that Defendant Tate waived his objections by his failure to
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timely respond to the discovery requests. Plaintiff also argues that the information sought
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in each of his discovery requests is relevant to the claims and defenses in his case.
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However, Plaintiff only explains the relevancy of the information sought in one of his
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multiple discovery requests even though he is seeking to compel further answers to all of
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his requests. Except as to that one, Plaintiff does not explain why Defendant Tate's
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responses were deficient, why Defendant Tate's objections were not justified, and why the
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information he sought is relevant to the prosecution of this action.
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IV.
DEFENDANT’S OPPOSITION
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Defendant first argues that Plaintiff failed to identify which of Defendant Tate’s
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responses to Plaintiff’s requests for production of documents were inadequate. Defendant
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correctly notes that Plaintiff has the burden of informing the Court “which discovery
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requests are the subject of his motion to compel, which of [Defendant’s] responses are
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disputed, why he believes [Defendant’s] responses are deficient, why [Defendant’s]
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objections are not justified, and why the information he seeks through discovery is relevant
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to the prosecution of this action.” Haynes v. Sisto, No. CIV S-08-2177, 2010 WL 4483486,
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at *1 (E.D. Cal. Nov. 1, 2010).
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Defendant Tate also argues that he has produced all responsive documents in his
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possession, custody, or control. (Opp’n at 2.) He either: 1) produced all of the responsive
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documents, 2) notified Plaintiff that he did not have any responsive documents, or 3)
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informed Plaintiff that Plaintiff could inspect Defendant’s central and medical files. (Opp’n
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at 3.)
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III.
ANALYSIS
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“Parties may obtain discovery regarding any nonprivileged matter that is relevant to
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any party's claim or defense.... Relevant information need not be admissible at the trial if
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the discovery appears reasonably calculated to lead to the discovery of admissible
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evidence.” Fed. R. Civ. P. 26(b)(1). For document production requests, responding parties
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must produce documents which are in their “possession, custody or control.” Fed. R. Civ.
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P. 34(a)(1). “Property is deemed within a party's ‘possession, custody, or control’ if the
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party has actual possession, custody, or control thereof or the legal right to obtain the
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property on demand.” Allen v. Woodford, No. CV–F–05–1104, 2007 WL 309945, at*2
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(E.D.Cal. Jan.30, 2007) (citing In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir. 1995));
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accord Bovarie v. Schwarzenegger, No. 08cv1661, 2011 WL 719206, at *4 (S.D.Cal. Feb.
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22, 2011); Evans v. Tilton, No. 1:07CV01814, 2010 WL 1136216, at *1 (E.D.Cal. Mar.19,
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2010).
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Once Defendant Tate objects to a discovery request, it is Plaintiff's burden to assert
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in his Motion to Compel why the objection is not justified. In general, Plaintiff must inform
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the Court which discovery requests are the subject of his motion to compel, and, for each
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disputed response, inform the Court why the information sought is relevant and why
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Defendant’s objections are not meritorious.
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Plaintiff explains why Defendant’s objections are not meritorious and the documents
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sought are relevant only with regard to the first one of his requests for documents. Plaintiff
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argues that the requested items are relevant to show Defendant Tate’s “motive,
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opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or
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accident.” (Mot. at 32.) However, nothing presented to the Court suggest that any such
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matters are relevant to claims raised in Plaintiff’s First Amended Complaint. (Am. Compl.,
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ECF No. 15.) Plaintiff also neglected to inform the Court that Defendant Tate had granted
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Plaintiff permission to inspect and copy his “central and medical Files” pursuant to
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institutional policies. (Mot. at Ex. E.) Plaintiff does not indicate if he availed himself of this
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opportunity. Plaintiff fails to offer any evidence that Defendant had possession, custody,
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or control over documents which were requested and not made available for inspection and
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copying. Plaintiff’s Motion to Compel further production of documents shall accordingly be
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denied.
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Plaintiff has failed to inform the Court why he believes Defendant’s other responses
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are deficient and why the information he seeks is relevant to the prosecution of his action.
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Plaintiff’s argument that Defendant Tate’s tardiness in responding to Plaintiff’s
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discovery requests resulted in Defendant waiving his objections to Plaintiff’s discovery
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requests is also without merit. Plaintiff did not object when Defendant’s attorney asked for
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additional time to respond to Plaintiff’s discovery requests. (Mot. at Ex. C.) It appears that
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Plaintiff effectively acquiesced to Defendant’s delay; in Plaintiff’s affidavit attached to his
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current Motion he refers to a “deal” he entered into with Defendant’s counsel to extend the
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response deadline. (Id. at 14.)
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III.
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CONCLUSION
In accordance with the above, Plaintiff’s January 25, 2011, Motion to Compel (ECF
No. 65) is hereby DENIED.
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IT IS SO ORDERED.
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Dated:
ci4d6
September 13, 2011
Michael J. Seng
/s/
UNITED STATES MAGISTRATE JUDGE
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