Cohea v. Adams et al

Filing 76

ORDER Denying Plaintiff's 61 Motion to Compel as Premature; ORDER Denying Plaintiff's 68 Motion for Hearing Regarding Discovery Disagreements and Request for Sanctions signed by Magistrate Judge Sandra M. Snyder on 09/02/2011. Opposition or Statement of Non-Opposition due by10/5/2011. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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DANNY JAMES COHEA,

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Plaintiff,

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CASE NO. 1:08-cv-01186-LJO-SMS PC
ORDER DENYING PLAINTIFF’S MOTION TO
COMPEL AS PREMATURE

v.
D. ADAMS, et al.,

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(ECF No. 61)
Defendants.

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ORDER DENYING PLAINTIFF’S MOTION FOR
HEARING REGARDING DISCOVERY
DISAGREEMENTS AND REQUEST FOR
SANCTIONS

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(ECF Nos. 68, 71, 73)
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/ THIRTY-DAY DEADLINE
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I.

Procedural History
Plaintiff Danny James Cohea, a state prisoner proceeding pro se and in forma pauperis, filed

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this civil rights action pursuant to 42 U.S.C. § 1983 on August 13, 2008.

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D. Adams, J. Jones, and I. Vela-Lopez filing an answer to the complaint, discovery in this action

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opened on December 9, 2009. The discovery cut-off date was August 9, 2010. Plaintiff filed a

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notice of appeal as to the screening order on May 24, 2010, which was denied on June 14, 2010. On

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June 21, 2010, a second order directing service on Defendants N. Hicinbothem and N. Kush issued.

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On August 9, 2010, Defendants filed a motion for an extension of the discovery cut-off date. On

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September 14, 2010, an order adopting the findings and recommendations issued dismissing certain

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claims and defendants and setting forth the claims proceeding in this action. Plaintiff failed to file

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an opposition to the motion to amend the scheduling order and the Court granted Defendants’ motion
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Following Defendants

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for a 120 day extension of time in which to conduct discovery on September 21, 2010.

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On January 21, 2011, Defendants filed a motion to amend the scheduling order due to two

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defendants still being unserved. The Court found that the fact that there were unserved defendants

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did not warrant extending the discovery cut-off date, however there was ambiguity in the claims

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found to be cognizable due to Plaintiff’s motions for reconsideration and Plaintiff’s appeal to the

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Ninth Circuit. The claims at issue in this action were not clearly defined until the order dismissing

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certain claims and defendants issued on September 14, 2010. Accordingly, the Court issued an

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amended discovery and scheduling order with the discovery cut-off date extended to April 15, 2011.

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Currently before the Court are Plaintiff’s motion to compel, filed April 15, 2011, and Plaintiff’s

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motion for a hearing regarding discovery disagreements and request for sanctions, filed June 3, 2011.

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(ECF Nos. 61, 68.) Defendants filed an opposition to Plaintiff’s motion for a hearing and request

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for sanctions on June 23, 2011 and Plaintiff filed a reply on July 6, 2011. (ECF Nos. 71, 73.)

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II.

Motion to Compel

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Plaintiff filed a precautionary motion to compel in case Defendants fail to respond to his

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discovery requests. Plaintiff is advised that discovery is self executing and the opposing party is to

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have an opportunity to respond to discovery requests prior to requesting intervention of the Court.

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The Court will only become involved where there is a discovery dispute. Plaintiff’s motion was filed

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before Defendants had an opportunity to respond to his discovery request and is denied as it is

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premature.

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III.

Motion for Hearing Regarding Discovery Disagreements and Request for Sanctions

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A.

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Plaintiff claims that Defendants acted in bad faith to obtain extensions of time to take his

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deposition. Plaintiff argues that Defendants moved to amend the discovery order too late to comply

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with the Court’s order that he be noticed of a deposition within fourteen days. Defendants informed

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the Court that they would travel to the prison to take Plaintiff’s deposition, but Plaintiff was deposed

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by video conference on April 7, 2011. Plaintiff submitted requests for admissions, interrogatories,

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and productions of documents to Defendants a week before the discovery cut-off deadline and

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Defendants failed to respond. Plaintiff moves for a hearing regarding the discovery disagreements

Argument

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between the parties and requests that the Court dismiss Defendants motion for summary judgment

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as a sanction for Defendants failing to comply with the discovery rules.

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Defendants respond that the discovery and scheduling order was amended on January 21,

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2011, due to an ambiguity in the claims found to be cognizable in the screening order. Due to the

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ambiguity the Court allowed the parties additional time to conduct discovery. While this Court did

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not grant Defendants’ request to extend the discovery deadline until all defendants were served other

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courts have granted such a request and defendants made the argument in the interest of efficiency.

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In the past defense counsel has taken the deposition of inmates at the prison in which they

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are housed. However, recently the decision was made to conduct depositions by video conference

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since a service was available to allow video conferencing with inmates. Plaintiff’s deposition was

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one of the first video depositions conducted by defense counsel and was conducted prior to the

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discovery cut-off date. However, Plaintiff did not serve his discovery requests until two days before

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the discovery cut-off date. Counsel has discovered that Plaintiff has been involved in ten lawsuits

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and due to his litigation experience he would be on notice that he could not file discovery requests

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and a precautionary motion to compel just prior to the discovery cut-off date.

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Plaintiff submits a sixteen page reply arguing that the Court should not have granted

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Defendants’ requests for an extension of the discovery deadline, Defendants misled the Court

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regarding his deposition and then waited until just prior to the discovery cut-off date to conduct his

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deposition, and his discovery requests were timely because they were served prior to the discovery

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cut-off date of April 15, 2011.

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B.

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While Plaintiff complains that the Court granted an excessive amount of time for discovery,

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the Court enjoys “wide discretion in controlling discovery.” Little v. City of Seattle, 863 F.2d 681,

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685 (9th Cir. 1989). Both of Defendants’ motions to amend the discovery and scheduling order were

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timely filed. The first motion was granted based upon Plaintiff’s failure to object. In deciding the

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second motion to amend the discovery and scheduling order, the Court found that the claims were

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not clearly defined until September 14, 2010. Due to the timing of the order defining the claims that

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were proceeding in the action, the Court determined that the parties should have additional time to

Discussion

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conduct discovery. While discovery had been opened for a period of time prior to the September 14,

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2010 order, it was unclear which claims were proceeding in this action. At the time that the January

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31, 2011 order issued the parties had only had approximately four months to conduct discovery on

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the clarified claims. It is this Court’s general practice to schedule eight months for discovery to

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allow the parties to propound discovery, receive responses, and file a motion to compel, if necessary.

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The decision to extend the discovery deadline to allow additional time to conduct discovery was

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within the discretion of the Court.

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Plaintiff alleges that Defendants have engaged in misconduct due to misleading the Court by

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stating in their motion that they would conduct Plaintiff’s deposition in person. The Court has

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inherent power to sanction parties or their attorneys for improper conduct. Chambers v. Nasco, Inc.,

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501 U.S. 32, 43-46 (1991); Roadway Express, Inc. v. Piper, 447 U.S. 752, 766 (1980); Fink v.

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Gomez, 239 F.3d 989, 991 (9th Cir. 2001). This includes the “inherent power to dismiss an action

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when a party has willfully deceived the court and engaged in conduct utterly inconsistent with the

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orderly administration of justice.” Anheuser-Busch, Inc. V. Natural Beverage Distrib., 69 F.3d 337,

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348 (9th Cir. 1995) (quoting Wyle v. R. J. Reynolds Indus., Inc., 709 F.2d 585, 589 (9th Cir. 1983));

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see Combs v. Rockwell Intern. Corp., 927 F.2d 486, 488 (9th Cir. 1991) (“Dismissal is an

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appropriate sanction for falsifying deposition”). “It is well settled that dismissal is warranted where

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. . . a party has engaged deliberately in deceptive practices that undermine the integrity of judicial

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proceedings. . . .” Anheuser-Busch, Inc., 69 F.3d at 348.

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Plaintiff argues that the issuance of the orders extending discovery were granted based upon

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the representation that depositions would be conducted in person and since his deposition was done

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by video conference Defendants misled the Court. Defense counsel has stated in a signed

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declaration, executed under penalty of perjury, that until recently the law firm did not have the set

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up for video conferencing at the prison and this was one of the first video depositions conducted by

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counsel. The Court does not find that Defendants have acted in bad faith by representing to the

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Court that they would take Plaintiff’s deposition in person.

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The Court fails to understand Plaintiff’s argument regarding the timing of his deposition.

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The discovery cut-off date was April 15, 2011, and Defendants conducted Plaintiff’s deposition on
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April 7, 2011. Plaintiff’s deposition was taken within the time period granted for discovery and the

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fact that it was one week prior to the discovery cut-off date is irrelevant.

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Additionally, Plaintiff complains that Defendants did not respond to his discovery requests

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that were propounded just prior to the discovery cut-off date. Although Plaintiff was aware that

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discovery opened in this action on December 9, 2009, he waited until April 2011, to propound

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discovery requests. The discovery and scheduling order issued December 9, 2009, informed the

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parties of the rules regarding propounding and responding to discovery. Additionally, the order

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stated that all discovery, including filing motions to compel, must be completed prior to the

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discovery cut-off date. Plaintiff could not reasonably believe that his discovery requests were timely,

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given that Defendants’ responses would not be due until forty five days after the requests were

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served. The discovery and scheduling order made it clear that discovery must be completed prior

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to the discovery cut-off date. To be timely Plaintiff’s discovery requests would have to be served

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at least forty five days prior to the discovery cut-off date. Plaintiff discovery requests were untimely

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and Defendants do not have to respond to the untimely requests.

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IV.

Conclusion and Order

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Based on the foregoing, the Court acted within its discretion in issuing the amended

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discovery and scheduling orders, Defendants have not engaged in any bad faith conduct to warrant

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sanctions, Plaintiff’s discovery requests were untimely, and Plaintiff’s motion to compel was

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premature.

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Accordingly, it is HEREBY ORDERED that:

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Plaintiff’s motion to compel, filed April 15, 2011, is DENIED as premature;

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2.

Plaintiff’s motion for a hearing regarding discovery disagreements and request for

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sanctions, filed June 3, 2011, is DENIED;

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3.

Within thirty days from the date of service of this order, Plaintiff shall file an

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opposition or statement of non-opposition to Defendants’ motion for summary

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judgment; and

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The failure to respond to Defendants’ motion in compliance with this order will
result in dismissal of this action, with prejudice, for failure to prosecute.

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IT IS SO ORDERED.
Dated:
icido3

September 2, 2011

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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