Calloway v. Veal et al

Filing 74

ORDER DENYING 62 Motion to Withdraw Discovery Requests, Re-Open Discovery, and Serve New Discovery Requests, without prejudice to Renewal within thirty days, as instructed by this order, signed by Magistrate Judge Gary S. Austin on 9/27/12. (30) Day Deadline (Copy of Rules 26, 33, 34 and 36 of the FRCP forwarded to Plaintiff as directed) (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JASIMI JERMAINE CALLOWAY,

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Plaintiff,

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1:08-cv-01896-LJO-GSA-PC
ORDER DENYING PLAINTIFF’S MOTION
TO WITHDRAW DISCOVERY REQUESTS,
RE-OPEN DISCOVERY, AND SERVE NEW
DISCOVERY REQUESTS, WITHOUT
PREJUDICE TO RENEWAL WITHIN THIRTY
DAYS, AS INSTRUCTED BY THIS ORDER
(Doc. 62.)

v.
WARDEN M. VEAL, et al.,

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Defendants.
/

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I.

RELEVANT PROCEDURAL HISTORY

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Jasimi Jermaine Calloway (“Plaintiff”) is a state prisoner proceeding pro se in this civil

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rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff commenced this action on December 10,

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2008. (Doc. 1.) This action now proceeds on the Third Amended Complaint filed on October 5,

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2009, on Plaintiff’s Eighth Amendment claims, against defendant Dr. Wang for deliberate

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indifference to Plaintiff’s serious medical needs, and against defendants C/O Hayward and C/O Oaks

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for use of excessive force.1 (Doc. 20.)

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On April 25, 2012, Plaintiff filed a motion to withdraw his previous discovery requests,

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reopen discovery, and serve new discovery requests. (Doc. 62.) On May 8, 2012, Defendants filed

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an opposition. (Doc. 63.) Plaintiff did not file a reply. Plaintiff’s motion is now before the Court.

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On March 17, 2011, the Court dismissed all other claims and defendants from this action, under Rule 18(a)
or for Plaintiff’s failure to state a claim. (Doc. 24.)

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II.

BACKGROUND

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On September 8, 2011, Plaintiff filed a motion to compel Defendants to respond to his thirty-

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eight requests for admissions and eight interrogatories, and to produce documents including

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personnel files and psychiatric records. (Doc. 42.) In their opposition filed on September 20, 2011,

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Defendants argued that Plaintiff’s requests for admissions were vague, overbroad, and mostly

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undecipherable; contained no information with regard to time, persons, or place; and required the

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unidentified respondent to assume information in order to respond. (Doc. 44.) Defendants also

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argued that Plaintiff had improperly combined interrogatories and requests for production of

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documents, and that the requests were not directed to individual defendants. Id.

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Defendants indicated to Plaintiff that they would not object to Plaintiff’s withdrawal of the

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requests for admissions and re-submission of separate, clearly defined requests for admissions made

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in compliance with Rule 36(a). Id., Exh. D at 2:17-23. Defendants also suggested that Plaintiff

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withdraw his interrogatories, prepare them pursuant to the Rules, and re-serve them on Defendants.

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Id., Exh. E, Doc. 44-2 at 20:20-22. Defendants stated that they would not count the Interrogatories

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against Plaintiff’s limit of 25 interrogatories. Id. at 20:23-25. Defendants also suggested to Plaintiff

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that he could withdraw his requests for production of documents and re-submit separate, clearly

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defined document requests. Id. at 2:13-16.

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On April 4, 2012, the Court issued an order denying Plaintiff’s motion to compel and

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requiring Plaintiff to either (1) file a motion to withdraw his discovery request, re-open discovery,

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and serve new discovery requests, or (2) file written notice that he does not wish to serve new

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discovery requests.

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III.

PLAINTIFF’S MOTION

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In response to the Court’s order of April 4, 2012, Plaintiff brings a motion to withdraw his

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discovery requests, re-open discovery, and serve new discovery requests on defendants Oaks,

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Hayward, and Wang, pursuant to Rules 33, 34, and 36.

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In opposition, Defendants refer to “discovery requests attached” which are “completely

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objectionable.” Opp’n, Doc. 63 at 3:9-10. Defendants argue that allowing Plaintiff to serve these

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improper requests will only delay this litigation further, as defendants will be forced to object, again,
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and likely file a motion for protective order. Defendants maintain that Plaintiff has not shown a

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compelling need for the personnel files, medical records, and psychiatric records he requests.

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IV.

DISCUSSION

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The Court has not seen the proposed discovery requests described by Defendants. Plaintiff

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did not submit any proposed requests for the Court’s review, and Defendants did not submit copies

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of the requests with their opposition. Plaintiff has not replied to Defendants’ opposition to explain

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his intent. Thus, the Court does not have sufficient information to make a ruling. Therefore,

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Plaintiff’s motion shall be denied, without prejudice to renewal of the motion within thirty days.

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If Plaintiff chooses to renew the motion, he must submit his proposed discovery requests with

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the motion to the Court for review. Plaintiff is cautioned that he must comply with the Federal Rules

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when preparing his discovery requests. Under Rule 26, Plaintiff may only “obtain discovery

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regarding any nonprivileged matter that is relevant to any party's claim or defense.” Fed. R. Civ.

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P. 26(a) (emphasis added). Evidence is relevant only if (a) it has any tendency to make a fact more

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or less probable than it would be without the evidence, and (b) the fact is of consequence in

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determining the action. Fed. R. Evid. 401. Discovery in this case must be relevant to Plaintiff’s

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Eighth Amendment claims for excessive force and inadequate medical care. Plaintiff is also

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cautioned that his discovery requests must be legible, concise, and clearly understandable, and each

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request must be directed to a specific defendant. Each interrogatory should contain only one

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question, and Plaintiff should only request specific, identifiable documents limited in time and scope.

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It must be apparent to the Court that Plaintiff has made a good faith effort to follow these guidelines,

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or his motion will not be granted. The Clerk shall be directed to send Plaintiff copies of Rules 26,

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33, 34, and 36 for his review.

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V.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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Plaintiff’s motion to withdraw his discovery requests, re-open discovery, and serve

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new discovery requests, filed on April 25, 2012, is DENIED, without prejudice to

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renewal of the motion within thirty days from the date of service of this order, as

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instructed by this order; and
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2.

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The Clerk is directed to send Plaintiff copies of Rules 26, 33, 34, and 36 of the
Federal Rules of Civil Procedure.

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IT IS SO ORDERED.
Dated:
6i0kij

September 27, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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