Cantu v. Garcia et al

Filing 70

ORDER DENYING Plaintiff's Motions for Subpoenas and Deposition By Written Questions 54 , 55 , 64 , 66 ; ORDER DENYING Plaintiff's Motions to Compel and Motion for Sanctions 57 , 59 , 60 ; ORDER DENYING Plaintiff's Motion for Leave to Serve Additional Interrogatories 63 , signed by Magistrate Judge Dennis L. Beck on 1/8/13. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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JOSHUA J. CANTU,

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Plaintiff,
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v.
M. GARCIA, et al.,

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ORDER DENYING PLAINTIFF’S MOTIONS
FOR SUBPOENAS AND DEPOSITION BY
WRITTEN QUESTIONS
Doc. 54, 55, 64, 66

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CASE NO. 1:09cv00177 AWI DLB PC

Defendants.

ORDER DENYING PLAINTIFF’S MOTIONS
TO COMPEL AND MOTION FOR
SANCTIONS
Doc. 57, 59, 60
ORDER DENYING PLAINTIFF’S MOTION
FOR LEAVE TO SERVE ADDITIONAL
INTERROGATORIES
/ Doc. 63

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I. Procedural History
On January 15, 2009, Plaintiff Joshua J. Cantu (“Plaintiff”), a state prisoner proceeding

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pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983. On July 26, 2010, Plaintiff

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filed an amended complaint. On November 29, 2010, the Court found a cognizable Eighth

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Amendment claim for excessive force against M. Garcia and failure to intervene excessive force

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against three doe defendants. On January 3, 2012, the Court issued a discovery and scheduling

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order, setting a deadline to amend pleadings of July 3, 2012, a discovery deadline of September

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3, 2012, and a dispositive motion deadline of November 13, 2012. On September 12, 2012, the

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Court granted Plaintiff’s motions to compel responses to discovery and granted his motion to
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modify the scheduling order. The Court set a revised deadline to amend pleadings of November

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13, 2012, a discovery deadline of January 14, 2013, and a dispositive motion deadline of March

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14, 2013.

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Between September 21, 2012 and December 3, 2012, Plaintiff filed two motions for

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subpoenas, two motions for deposition by written questions, one motion for sanctions, one

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motion to compel, one motion to order Defendant to identify employees, and one motion for

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leave to serve additional interrogatories. On December 12, 2012, Defendant filed an opposition

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to Plaintiff’s motion for leave to file additional interrogatories. This matter is deemed submitted

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pursuant to Local Rule 230(l).

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II. Analysis

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A. Motions for Subpoenas

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Subject to certain requirements, Plaintiff is entitled to the issuance of a subpoena

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commanding the production of documents or tangible things from a nonparty, and to service of

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the subpoena by the United States Marshal. Fed. R. Civ. P. 45; 28 U.S.C. § 1915(d).

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However, the Court will consider granting such a request only if the documents or

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tangible things sought from the nonparty are not equally available to Plaintiff and are not

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obtainable from Defendant through a request for the production of documents or tangible things.

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Fed. R. Civ. P. 34. If Defendant objects to Plaintiff’s discovery request, a motion to compel is

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the next required step. If the Court rules that the documents or tangible things are discoverable

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but Defendants do not have care, custody, and control of them, Plaintiff may then seek a

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subpoena of a nonparty. Alternatively, if the Court rules that the documents are not discoverable,

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the inquiry ends.

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The Court will not issue a subpoena for a nonparty individual without Plaintiff first

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following the procedure outlined above. Therefore, the Court DENIES Plaintiff’s motions for

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subpoenas.

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B. Motions to Conduct Deposition by Written Questions

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As for Plaintiff’s requests to conduct a deposition under Rule 31, a party may depose any

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person by written questions. However, where the deponent is incarcerated, the party must obtain
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the Court’s permission to conduct the deposition. Fed. R. Civ. P. 31(a)(2)(B). Unless the parties

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stipulate otherwise, the party noticing the deposition is required to provide the questions to an

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“officer,” as that term is defined in Rule 28(a), who will take the deponent’s responses to the

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questions, certify them, and send them to the noticing party. Id.; Fed. R. Civ. P. 31(b); 30(b)(5).

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Plaintiff has not established that he followed the procedure outlined above to obtain a

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deposition by written questions. Therefore, the Court DENIES Plaintiff’s motions to conduct

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deposition by written questions.

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C. Motion for Sanctions
The Court declines to issue a sanction for non-compliance with the interrogatories and

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requests for production of documents until after the issuance of an order commanding

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compliance. See Pennwalt Corp. v. Durand-Wayland, Inc., 708 F.2d 492, 494 (9th Cir. 1983)

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(finding corporation subject to subpoena could not be sanctioned in absence of enforcement

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order). Accordingly, Plaintiff’s motion for sanctions is DENIED.

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D. Motion to Compel Production of Documents
Plaintiff moves to compel further documents and responses to his discovery requests. He

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requests the CDCR bus schedule from March 10, 2008, to March 14, 2008; procedures for

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handcuffs, waist chains and leg irons; and pictures of a CDCR bus from every angle.

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Under Rule 26 of the Federal Rules of Civil Procedure, “[p]arties may obtain discovery

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regarding any non-privileged matter that is relevant to any party’s claim or defense.” Fed. R.

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Civ. P. 26(b).

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Defendant objected, noting that the requested information is sensitive and raises an issue

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of institutional security. “The interest of the party asserting a privilege tends to be strongest

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when the information in question falls squarely within the definition of privilege, and its

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disclosure would undermine the public interest in free, candid and uninhibited exchange of

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information or jeopardize the physical security of an individual or governmental institution.”

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Assoc. for Reduction of Violence v. Frank, 734 F.2d 63, 66 (1st Cir. 1984). Plaintiff has not

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established how the information he requests is relevant to his case and how it does not

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compromise institutional security. Therefore, the Court DENIES Plaintiff’s motion to compel

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production of documents.

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E. Motion to Order Defendant to Identify Employees

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Plaintiff requests that the Court order Defendant to identify all employees on the bus.

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When bringing a motion to compel discovery responses, the moving party shall set forth

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each discovery request and response at issue. E.D. Cal. Local Rule 251. Plaintiff’s motion is

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procedurally defective because it does not provide his requests for discovery. He fails to submit

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any proof that he ever submitted a discovery request to Defendant, and his previous motions to

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compel do not satisfy this requirement. Plaintiff’s motion is also vague and does not establish

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that he followed to proper procedure before filing the motion. Therefore, the Court DENIES

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Plaintiff’s motion to order Defendant to identify all employees on the bus.

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F. Motion for Leave to Serve Additional Interrogatories

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Federal Rule of Civil Procedure 33(a)(1) provides: “Unless otherwise stipulated or

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ordered by the court, a party may serve on any other party no more than 25 written

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interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be

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granted to the extent consistent with Rule 26(b)(2).”

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Although Plaintiff was allowed 25 interrogatories, he served well over the allotted

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number, and Defendant Garcia either answered the interrogatories or raised proper objections.

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Although Plaintiff seeks to propound additional interrogatories, he fails to offer any information

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on the subject matter of the proposed interrogatories and fails to offer any reason establishing

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good cause of their use. “In general, pro se representation does not excuse a party from

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complying with a court’s orders and with the Federal Rules of Civil Procedure.” Ackra Direct

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Mktg. Corp. v. Fingerhut Corp., 86 F.3d 852, 856-57 (8th Cir. 1996). Plaintiffs who represent

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themselves must abide by the rules of the court in which they litigate. Carter v. Comm’r, 784

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F.2d 1006, 1008-09 (9th Cir. 1986). “[W]hile pro se litigants may be entitled to some latitude

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when dealing with sophisticated legal issues, acknowledging their lack of formal training, there is

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no cause for extending this margin to straightforward procedural requirements that a layperson

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can comprehend as easily as a lawyer.” Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir. 1991).
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Plaintiff has not established good cause to serve additional interrogatories. Therefore, the
Court DENIES Plaintiff’s motion for leave to serve additional interrogatories.
III. Conclusion

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Accordingly, it is HEREBY ORDERED that:

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Plaintiff’s motions for subpoenas are DENIED;

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2.

Plaintiff’s motions to conduct deposition by written questions are DENIED;

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3.

Plaintiff’s motion for sanctions is DENIED;

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4.

Plaintiff’s motion to compel production of documents is DENIED;

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Plaintiff’s motion to order Defendant to identify all employees is DENIED; and

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Plaintiff’s motion for leave to serve additional interrogatories is DENIED.

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IT IS SO ORDERED.
Dated:
3b142a

January 8, 2013

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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