Lamon v. Adams et al

Filing 187

ORDER Overruling Plaintiff's 154 Objections and Clarifying the Order Amending the Schduling Order signed by Magistrate Judge Sandra M. Snyder on 11/02/2012. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BARRY LOUIS LAMON,

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Plaintiff,

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vs.

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Defendants.

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________________________________/

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I.

ORDER OVERRULING PLAINTIFF’S
OBJECTIONS AND CLARIFYING THE
ORDER AMENDING THE SCHEDULING
ORDER (DOC. 150)

DERRAL ADAMS, et al.,

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1:09-cv-00205-LJO-SMS (PC)

(Doc. 154)

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Procedural Background
Plaintiff, Barry Louis Lamon (“Plaintiff”), a state prisoner proceeding pro se and in

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forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 and is proceeding on

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the Complaint, filed February 2, 2009, only on Plaintiff’s claims against Defendants Baer,

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Valdez, Buenos, Lee, Ponce, and Purvis for excessive use of force and deliberate indifference to

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a threat to Plaintiff’s safety in violation of the Eighth Amendment and for retaliation in

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violation of the First Amendment.

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Originally, this case proceeded on Plaintiff’s claims against Defendants Baer, Valdez,

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Buenos, Lee, Ponce, and Purvis for use of excessive force, deliberate indifference to a threat to

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Plaintiff’s safety, and retaliation and against Defendants Adams, Junious, Da Viaga, and Callow

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for deliberate indifference to a threat to Plaintiff’s safety. (Docs. 7, 8, 9.) The first Discovery

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and Scheduling Order issued in this case on October 27, 2009. (Doc. 17.) Therein, the

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discovery cut-off date was set at June 27, 2010, with September 7, 2010 set as the dispositive

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motion deadline. (Id.) The parties engaged in discovery, multiple discovery disputes arose, and

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dispositive motions were filed. (See Docs. 24, 26, 28, 31, 34, 37, 39, 40, 43, 46, 49, 55, 56, 63,

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67, 74, 75, 76, 84, 90, 94, 101, 102, 103.)

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A telephonic status conference (“TSC”) was held on April 27, 2011. In that conference,

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the parties and the Court discussed the multiple pending motions and the stricter pleading

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standards which were ushered in by the decision of the United States Supreme Court in

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Ashcroft v. Iqbal, 556 U.S. 662 (2009), see Moss v. U.S. Secret Service, 572 F.3d 962, 968-69

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(9th Cir. 2009). This conference was held merely as a courtesy to apprise the parties both that

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the case would be re-screened and, since the re-screening would likely narrow Plaintiff’s

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claims, that judicial resources were insufficient to delve through all of the pending discovery

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motions to discern which would subsequently remain relevant, so the parties would be given

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opportunity to advise the Court as to what discovery remained necessary subsequent to the re-

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screening of the Complaint. An Order Following Telephonic Status Conference (“the TSC

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Order”) issued stating that the case would be re-screened, that the parties would have

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opportunity to submit statements of discovery needed (including motions to compel), and that

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all discovery motions filed prior to the TSC were thus rendered moot. (Doc. 109.)

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Subsequently, the case was re-screened (“the Re-screening Order”). (Doc. 111.) After

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his objections to the new screening order were overruled and reconsideration was denied,

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Plaintiff elected to proceed on the claims found cognizable upon re-screening. (Docs. 116, 117,

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118, 121.)

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Thereafter, the parties were ordered to submit statements delineating what, if any,

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discovery remained necessary for pursuing/defending the remaining claims. (Docs. 109, 121.)

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These orders did not re-open discovery, but issued with the understanding that significant

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discovery disputes existed premised on a primary dispute as to whether Plaintiff’s responses to

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Defendants’ Requests for Admissions (“RFAs”) resulted in automatic admissions. The intent

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behind ordering the parties to submit statements of remaining discovery was to ascertain

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whether any discovery disputes remained and what, if any further discovery the parties desired

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to propound, limited solely to pursuit and/or defense of the remaining claims in the case which

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might warrant reopening discovery. All issues surrounding Defendants’ RFAs were to be

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separately addressed.
Plaintiff filed his statement of discovery needed (“Plaintiff’s Statement”) on June 29,

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2011. (Doc. 123.) Defendants filed their statement of discovery needed (“Defendants’

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Statement”) on June 30, 2011. (Doc. 122.) Defendants filed their response to Plaintiff’s

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Statement on July 8, 2011. (Doc. 125.) Plaintiff filed his corresponding reply on September

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19, 2011. (Doc. 134.) Instead of filing a response to Defendants’ Statement, on July 13, 2011,

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Plaintiff filed a document identified as his objections and motion to strike Defendants’

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Statement. (Doc. 127.) While Plaintiff’s motion to strike Defendants’ Statement was denied

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and his objections were disregarded, they were construed as Plaintiff’s opposition/response to

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Defendants’ Statement. (Doc. 144.) Subsequently, an order amending the scheduling order

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issued which found that Plaintiff’s responses to Defendants’ RFAs were sufficient, reopened

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limited discovery and extended the discovery deadline (including motions to compel) to June 1,

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2012, and extended the deadline for filing pre-trial dispositive motions to September 7, 2012

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(“the Amd/Sch Order”). (Doc. 150.)

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II.

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Plaintiff’s Objections & Request for Clarification
On February 2, 2012, Plaintiff filed a document entitled “Plaintiff’s Objections to, and

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Request of Magistrate Judge Snyder to Clarify her January 18, 2012 Order Amending the

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Scheduling Order (Doc. 150)” (“Current Objections”), which is currently before the Court.

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(Doc. 154.) In this document, Plaintiff states that he feels the Amd/Sch Order made inaccurate

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descriptions of the nature, context, and initially stated purpose for issuing both the TSC Order

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(Doc. 109) and the Order Directing the Action to Proceed on First and Eighth Amendment

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Claims against Defendants Baer, Valdez, Buenos, Lee, Ponce, and Purvis (Doc. 121). Despite

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more than sufficient lapse of time, Defendants have not responded.

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In Plaintiff’s Current Objections, he takes umbrage with the following: (1) Plaintiff

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objects that none of the discovery issues which he filed prior to the re-screening of the

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Complaint were considered; (2) Plaintiff believed that the adequacy of his responses to the

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RFAs was decided verbally at the TSC and so objects to the discussion in the Amd/Sch Order

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regarding the prior dispute as to whether he had adequately responded to Defendants’ RFAs; (3)

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Plaintiff feels that the Amd/Sch Order mentions only Defendants’ arguments regarding their

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RFAs and is “utterly silent as to [his] discovery concerns” (that Defendants stated they had

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served various documents on Plaintiff when in fact they had not done so); and (4) Plaintiff

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objects that the Amd/Sch Order did not require Defendants to file a copy of all discovery

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responses served on Plaintiff with the Court under seal, which he believes was also verbally

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decided and agreed to at the TSC.

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A.

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Plaintiff’s objection that none of the discovery issues which were pending prior to the

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Prior Discovery Motions

re-screening of the Complaint were considered is not well taken.
The TSC was held as a courtesy to the parties for a variety of reasons: (1) to apprise the

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parties that the case was going to be re-screened in light of the changed pleading standards as

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delineated in Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S.

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544, 555 (2007); ref Moss v. U.S. Secret Service, 572 F.3d 962 (9th Cir. 2009); (2) to provide

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an informal discussion regarding the volume of the outstanding discovery disputes and a

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discussion of the result if any of Plaintiff’s then pending claims were found not to be

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cognizable on re-screening to facilitate a decision as to whether discovery should be reopened;

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and (3) to give the parties opportunity to review the pending motions which would be rendered

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moot to refresh their recollection so as to adequately prepare statements delineating

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further/remaining discovery desired subsequent to re-screening.

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Plaintiff filed objections to the TSC Order which were overruled and any motion for
reconsideration construed thereon was denied. (Docs. 113, 115.)

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Re-screening of the Complaint narrowed Plaintiff’s claims in this case. (Doc. 150.)

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This being so, the Court was not in a position to spend a considerable amount of its limited

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resources attempting to discern which of the prior discovery disputes remained relevant.

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Further, it neither could, nor should speculate as to the desires of the parties thereon.

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It is important to note that the parties were not limited as to what they were allowed to

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delineate as further/remaining discovery in their statements of discovery needed. The TSC

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Order stated that, in their statements of discovery needed the parties were to delineate

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“remaining discovery sought (i.e. via compelling further responses to previously propounded

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discovery as well as additional discovery necessary for adequate trial preparation and/or

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dispositive motions) . . . .” (Doc. 109.) If Plaintiff felt they were still applicable, he could have

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restated every single discovery request he had previously propounded on Defendants, or he

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could have indicated that the responses he received were insufficient so as to necessitate

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motions to compel, or he could have restated requests and responses received that were

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contained in any of his previously filed motions to compel further response. Plaintiff has only

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himself to blame for not resurrecting issues in the discovery motions that were found moot on

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re-screening when given the opportunity to do so.

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It is also important to note that Defendants were ordered to respond to all discovery

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request which Plaintiff delineated in his statement of discovery needed – both as interrogatories

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and requests for production.

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B.

No Verbal Rulings Were Made at the TSC

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The TSC Order generally reflects the topics discussed at the April 27, 2011 TSC. (Doc.

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109.) Though verbally discussed in some detail, none of the discovery disputes were

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specifically resolved, or ruled on in any way, at the TSC. The TSC Order reflected this by

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ordering the parties, subsequent to service of the order re-screening the Complaint, to submit

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statements delineating remaining discovery they desired. (Id.) The TSC Order specified that

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the parties could delineate both responses to previously propounded discovery for which further

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responses needed to be compelled as well as additional discovery necessary for adequate trial

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preparation and/or filing/opposing dispositive motions. (Id.) The TSC Order also specifically

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stated that the previously served RFAs should not be included in the parties’ requests for

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discovery as they would be ruled on separately. (Id.) While the parties’ differing opinions

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regarding the effect of Plaintiff’s responses to Defendants’ RFAs were discussed in the TSC,

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the issue was not ruled on until the Amd/Sch Order (Docs. 109, 150.)

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Plaintiff’s belief that the status of his responses to Defendants’ RFAs was resolved

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verbally at the TSC is inaccurate. If such ruling had been made, it would have been reflected in

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the TSC Order. Plaintiff previously filed objections to the TSC Order (Doc. 113) which were

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overruled and any motion for reconsideration that might have been construed thereon was

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denied (Doc. 115). Plaintiff’s objection to the TSC Order and Amd/Sch Order based on his

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belief that the issue of his responses to Defendants’ RFAs was decided verbally at the TSC is

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overruled.

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C.

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Plaintiff also objects to the discussion in the Amd/Sch Order regarding the adequacy of

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his responses to Defendants’ RFAs because he not only believes the issue was already resolved

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at the TSC,1 but he also feels that the Amd/Sch Order mentions only Defendants’ arguments

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regarding their RFAs and “appears utterly silent as to [Plaintiff’s] discovery concerns” (i.e. that

Discussion of RFAs in the Amd/Sch Order:

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Defendants stated they had served various documents on Plaintiff when in fact they had not

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done so). (Doc. 154, p. 3.)
The Amd/Sch Order addressed the adequacy of Plaintiff’s responses to Defendants’

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RFAs as a ruling on this was pivotal and prerequisite to deciding whether to reopen discovery.

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The Amd/Sch Order found that Plaintiff’s responses to the RFAs were both sufficient and

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timely such that he was not deemed to have admitted any of the Defendants’ RFAs. (Doc. 150.)

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While Plaintiff objects to it, the amount of discussion given to either side’s position regarding

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Plaintiff’s responses to Defendants’ RFAs is merely a summation of issues and the arguments

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presented upon which the ruling is made. Plaintiff’s argument that his side of the issue

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regarding his responses to Defendants’ RFAs received less attention in the Amd/Sch Order is

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superfluous since the ruling was in Plaintiff’s favor. (Id.)
Since the ruling regarding Defendants’ RFAs was favorable to Plaintiff, discovery was

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reopened for the limited purpose of allowing the parties to conduct all desired discovery that

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they delineated in their statements of discovery needed. (Docs. 123, 127, 154.) Aside from the

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adequacy of Plaintiff’s responses to Defendants’ RFAs, Plaintiff’s discovery concerns were not

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ruled on individually in the Amd/Sch Order as that very order granted him opportunity to

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propound further discovery as he had delineated and, if needed, to file subsequent motions to

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As previously discussed, no rulings were verbally made at the

TSC.

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compel thereon. The Statements of Discovery Needed did not function as motions to compel,

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but rather as indicators of outstanding discovery issues for which discovery was reopened.

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Plaintiff’s objection to the discussion in the Amd/Sch Order regarding the dispute as to

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the adequacy of his responses to Defendants’ RFAs and because he feels that the Amd/Sch

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Order mentions only Defendants’ arguments thereon are overruled.

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D.

Previous Production Not Filed Under Seal:

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Plaintiff objects to the fact that the Amd/Sch Order did not require Defendants to file a

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copy of all discovery responses previously served on Plaintiff with the Court under seal and

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argues that he believes this was also verbally decided and agreed to at the TSC.

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It is true that Plaintiff raised his concerns and desires regarding production of

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documents by Defendants in the TSC. However, no such ruling was made at that time. Like

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the issue of the adequacy of Plaintiff’s responses to Defendants’ RFAs, if this issue had been

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decided at the TSC, it would have been stated in the TSC Order The TSC Order specifically

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allowed the parties to delineate remaining discovery sought via compelling further responses to

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previously propounded discovery. (Doc. 109.) In his statement of discovery needed, Plaintiff

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delineated eighteen discovery requests phrased both as interrogatories and as requests for

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production of documents that he desired to serve on Defendants. (Doc. 122, pp. 5-10.)

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Defendants were ordered to respond to all of these requests -- both as interrogatories and

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requests for production of documents. (Doc. 150, p. 9.) Plaintiff should have raised any issue

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of adequacy of Defendants’ production in response to his prior discovery requests that remained

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applicable after the case was re-screened in his statement of discovery needed. Despite being

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given instruction and opportunity, he failed to do so.

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Defendants were ordered to respond to all requests for production of documents

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delineated in Plaintiff’s statement of discovery needed. (Id.) Plaintiff may not now resurrect

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requests for production of documents for which he desires further production, but which were

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not delineated in his statement of discovery needed. Further, any request by Plaintiff to have

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Defendants’ production of documents filed with the Court, is properly denied as the Court is

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not a repository for the parties’ evidence.

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III.

Order
Based on the foregoing, it is HEREBY ORDERED that Plaintiff’s objections are

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overruled and his request for clarification is GRANTED to the extent the above discussion

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addresses his concerns.

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IT IS SO ORDERED.

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Dated:
icido3

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November 2, 2012

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE