Zavala v. Rios et al

Filing 122

ORDER DENYING Plaintiff's Second Motion for a 45-Day Extension to Amend Pleadings; Motion for Leave to Amend; and Motion for Leave to Add Claims Against Defendant Gonzaga; ORDER DENYING Plaintiff's Motion fotr Leave to Relate Back; ORDER DE NYING, IN PART and GRANTING IN PART, Plaintiff's Motion to Extend Discovery Cut-off Date; Motions for Leave to Serve Additional Interrogatories and Requests for Admission and to take Written Depositions and Motion for Leave to Conduct Additional Discovery and Add Defendants; ORDER DENYING Plaintiff's Motion to Compel Production of Documents; ORDER DENYING Plaintiff's Motion to Compel Production of Documents; ORDER DENYING Plaintiff's Motion to Compel Answers to First Set of I nterrogatories; ORDER DENYING, IN PART and GRANTING, IN PART, Plaintiff's Motion to Compel Answers to Request for Admissions, Set One; ORDER DENYING Plaintiff's 54(b) Motion; ORDER DENYING Plaintiff's 56(a) Motion, signed by Magistrate Judge Michael J. Seng on 03/16/2015. (30-Day Deadline)(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RAUL SANCHEZ ZAVALA,

CASE NO. 1:09-CV-00679-MJS

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Plaintiff,

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v.
HECTOR RIOS, et al.,
Defendants.

ORDER DENYING PLAINTIFF’S SECOND
MOTION FOR A 45-DAY EXTENSION TO
AMEND PLEADINGS; MOTION FOR
LEAVE TO AMEND; AND MOTION FOR
LEAVE TO ADD CLAIMS AGAINST
DEFENDANT GONZAGA
(ECF NOS. 81, 115, & 119)
ORDER DENYING PLAINTFF’S MOTION
FOR LEAVE TO RELATE BACK

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(ECF NO. 114)
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ORDER DENYING, IN PART, AND
GRANTING,
IN PART,
PLAINTIFF’S
MOTION TO EXTEND DISCOVERY CUTOFF DATE; MOTIONS FOR LEAVE TO
SERVE ADDITIONAL INTERROGATORIES
AND REQUESTS FOR ADMISSION AND
TO TAKE WRITTEN DEPOSITIONS; AND
MOTION FOR LEAVE TO CONDUCT
ADDITIONAL DISCOVERY AND ADD
DEFENDANTS

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(ECF NOS. 84, 85, 86, 93, & 118)

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ORDER DENYING PLAINTIFF’S MOTION
TO
COMPEL
PRODUCTION
OF
DOCUMENTS

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(ECF NO. 82)

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ORDER DENYING PLAINTIFF’S MOTION
TO COMPEL ANSWERS TO FIRST SET
OF INTERROGATORIES

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(ECF NO. 83)

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ORDER DENYING, IN PART, AND
GRANTING,
IN PART,
PLAINTIFF’S
MOTION TO COMPEL ANSWERS TO
REQUEST FOR ADMISSIONS, SET ONE

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(ECF NO. 95)

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ORDER DENYING PLAINTIFF’S 54(b)
MOTION

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(ECF NO. 113)

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ORDER DENYING PLAINTIFF’S 56(a)
MOTION

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(ECF NO. 116)

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30-DAY DEADLINE

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I.

PROCEDURAL HISTORY
Plaintiff is a prisoner proceeding pro se and in forma pauperis in this civil rights

action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971) and 28 U.S.C. § 1331. The action proceeds on a Fifth
Amendment due process claim against Defendants A, B, and Gonzaga.
Before the Court are Plaintiff’s second motion for a 45-day extension of time to
amend pleadings (ECF No. 81.); motion to compel production of documents,
electronically stored information, and tangible things (ECF No. 82.); motion to compel

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answers to Plaintiff’s first set of interrogatories (ECF No. 83.); motion to compel answers
to Plaintiff’s request for admissions, set one (ECF No. 95.); motion to extend the
discovery cut-off date for 90 days (ECF No. 84.); motion for leave to serve additional
request for admissions (ECF No. 85.); motion for leave to serve ten additional
interrogatories (ECF No. 86.); motion for leave to take written deposition of Defendant
Gonzaga and non-party witnesses (ECF No. 93.); Rule 54(b) motion (ECF No. 113.);
motion for leave to relate back and supplement pursuant to Fed. R. Civ. P. 15(c) and (d)
(ECF No. 114.); motion for leave to amend pleadings (ECF No. 115.); motion for partial
judgment pursuant to Fed. R. Civ. P. 56(a) (ECF No. 116.); motion for leave to conduct
additional discovery and add defendants (ECF No. 118.); and motion for leave to join or
add claims against Defendant Gonzaga (ECF No. 119.). Defendant Gonzaga filed an
opposition to all of the motions except for Plaintiff’s motion for leave to take written
depositions (ECF No. 93.) and Plaintiff’s Rule 54(b) motion (ECF No. 113). (ECF Nos.
96, 97, 99, 100, 101, 120 & 121.) Plaintiff replied to the majority of the oppositions; for
the others, the time to reply has expired. (ECF Nos. 103, 104, 105, 106, 109, & 110.).
The motions are deemed submitted. Local Rule 230(l).
II.

MOTIONS FOR LEAVE TO AMEND
The decision to grant or deny leave to amend pleadings is within the trial court's

discretion. Swanson v. U.S. Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996). A party
seeking leave to amend must demonstrate that amendment is proper under Federal
Rule of Civil Procedure 15. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 60708 (9th Cir. 1992). Under Rule 15(a)(2), the Court should freely give leave to amend a
pleading “when justice so requires.” The Court should apply this policy “with extreme
liberality.” Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001)
(quoting Morongo Band of Mission Indians v. Rose, 893 F. 2d 1074, 1079 (9th Cir.
1990)). “If the underlying facts or circumstances relied upon by a [party] may be a

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proper subject of relief, he ought to be afforded an opportunity to test his claim on the
merits.” Foman v. Davis, 371 U.S. 178, 182 (1962).
However, a district court may deny leave to amend “where there is ‘any apparent
or declared reason’ for doing so, including undue delay, undue prejudice to the opposing
party or futility of the amendment.” Lockman Found. v. Evangelical Alliance Mission, 930
F.2d 764, 772 (9th Cir. 1991) (quoting Foman, 371 U.S. at 182). These factors are not
to be given equal weight. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052
(9th Cir. 2003). Prejudice to the opposing party must be given the greatest weight. Id.
“Absent prejudice, or a strong showing of any of the remaining Foman factors, there
exists a presumption under Rule 15(a) in favor of granting leave to amend.” Id.
Plaintiff filed the following four motions essentially requesting leave to amend his
Seventh Amended Complaint: 1) second motion for a 45-day extension of time to amend
pleadings; 2) motion for leave to relate back and supplement pursuant to Fed. R. Civ. P.
15(c) and (d); 3) motion for leave to amend pleadings; and 4) motion for leave to join or
add claims against Defendant Gonzaga. (ECF Nos. 81, 114, 115, & 119.)
The deadline to amend pleadings in this case was September 30, 2014. Plaintiff
argues that he timely filed a motion for an extension of time to amend on September 21,
2014, but did not hear back from the Court. Therefore, he filed a “second” motion. He
contends that good cause exists because: 1) Defendant Gonzaga has not fully
responded to his discovery requests; 2) this case is complex and he is indigent
proceeding pro se; 3) during discovery, he “learned information concerning additional
claims against Defendant Gonzaga” and new claims against Warden Dennis Smith; 4)
on October 24, 2014, he learned that Defendants A and B could be one of six named
individuals; and 5) he did not learn of information regarding Defendant Gonzaga’s
credibility until he received her responses to his request for admissions, set one. Plaintiff
also seeks to add unidentified legal claims and a new party and requests additional time

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to brief the issue because of his inability to access the law library due to a lockdown at
Atwater prison.
Defendant Gonzaga argues that the deadline to amend has passed, and Plaintiff
has not shown good cause.
There is no record on the docket of Plaintiff timely seeking leave to amend in
September 2014. Additionally, Plaintiff failed to submit a copy of his proposed amended
complaint with any of his motions. See Local Rule 137(c).
The only claim Plaintiff identifies adding against Defendant Gonzaga is
“supervisory liability.” (ECF No. 119.) Government officials may not be held liable for
the actions of their subordinates under a theory of respondeat superior. Monell v. Dep’t
of Soc. Servs., 436 U.S. 658, 691, 691 (1978). Liability may be imposed on supervisory
defendants under § 1983 only if the supervisor: (1) personally participated in the
deprivation of constitutional rights or directed the violations or (2) knew of the violations
and failed to act to prevent them. Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989);
Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). In screening Plaintiff’s Seventh
Amended Complaint, the Court found that Plaintiff stated a claim against Defendant
Gonzaga, who he identified as the supervisor of the mail room. (ECF No. 71.) Plaintiff
cannot state a separate claim for “supervisory liability.” Leave to amend to do so is
denied as futile.
Plaintiff does not specify the nature or substance of any additional claims against
Defendants or any new party. Therefore, the Court cannot determine what, if any, new
claims Plaintiff seeks to add against Defendants or any new party and whether good
cause exists to do so.
If Plaintiff, through the discovery process, is able to identify the names of
unknown Defendants A and B, he may file a motion seeking leave to amend to substitute
the Defendants with their real names. In so doing, Plaintiff should specifically identify

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which individual he seeks to substitute for each unknown Defendant currently named in
the action and indicate when and how he learned of their identities.
III.

MOTIONS TO COMPEL
A.

Legal Standard

“The discovery process is subject to the overriding limitation of good faith.” Asea
v. S. Pac. Transp. Co., 669 F.2d 1242, 1246 (9th Cir. 1981).

“Parties may obtain

discovery regarding any non-privileged matter that is relevant to any party's claim or
defense.” Fed. R. Civ. P. 26(b)(1). The Court also may order discovery of any relevant
matter with a showing of good cause.

Id.

Information is relevant if it “appears

reasonably calculated to lead to the discovery of admissible evidence.” Id. “In each
instance, the determination whether . . . information is discoverable because it is relevant
to the claims or defenses depends on the circumstances of the pending action.” Fed. R.
Civ. P. 26 advisory committee's note (2000 Amendment) (Subdivision (b)(1)).
Generally, if the responding party objects to a discovery request, the party moving
to compel bears the burden of demonstrating why the objections are not justified.
Grabek v. Dickinson, 2012 WL 113799, at *1 (E.D. Cal. Jan. 13, 2012); Ellis v. Cambra,
2008 WL 860523, at *4 (E.D. Cal. Mar. 27, 2008). The moving party “at a minimum . . .
has the burden of informing the court which discovery requests are the subject of his
motion to compel, which of the . . . responses are disputed, why . . . [the] responses are
deficient, why the . . . objections are not justified, and why the information he seeks
through discovery is relevant . . .” Walker v. Karelas, 2009 WL 3075575, at *1 (E.D. Cal.
Sep. 21, 2009).
The Court must limit discovery if the burden of the proposed discovery “outweighs
its likely benefit.” Fed. R. Civ. P. 26(b)(2)(C)(iii).
The requests and responses at issue and the Court’s ruling on each are as
follows:

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B.

Production of Documents, Electronically Stored Information, and
Tangible Things:

Defendant Gonzaga argues that Plaintiff’s motion to compel should be denied
because he fails to identify which responses he disputes or state why the responses are
deficient. In Plaintiff’s reply, he specifies which responses he disputes, but the motion to
compel production will nevertheless be denied for the reasons set forth below.
Document Request No. 9: Audio recordings to a call made by Plaintiff from the
USP Atwater Inmate Telephone System, to Attorney Lindholdt at telephone
number [phone]. This call was made in mid or late September or early
October of 2006.
Response: No documents to this request are within defendant's possession,
custody or control.
Analysis and Ruling:
Plaintiff argues that the audio recording will establish his need to communicate
with Appellate counsel. While that may be true, Defendant cannot produce what he
does not have. Even if such material existed, Plaintiff has not established how the audio
recordings might prove relevant to his case or lead to the discovery of admissible
evidence.
Document Request No. 10: Names of all Counselors, Unit Managers, Case
Managers, Secretaries employed at USP Atwater Unit 5-B during the period of
around April of 2008, up until the time Plaintiff was reassigned/moved to Unit 4-B
(around July of 2009) .
Response: Defendant objects to this request on the grounds that it calls for a
narrative response, not the production of documents or tangible things. To the
extent that this request can be construed as requesting all documents containing
the information described in the request, defendant further objects on the grounds
that the request is overly broad, unduly burdensome, and not reasonably
calculated to lead to discovery of admissible evidence.
Analysis and Ruling:
Defendant’s objections are well taken. Request No. 10 does not request

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production of documents, and if it did, it would indeed be overly broad and appear to call

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for information which is not relevant to his due process claim or likely to lead to

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discoverable evidence. Plaintiff has not articulated why and how Defendant’s objection
is deficient and not justified.

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Document Request No. 18: All calls and messages received by the USP Atwater
Unit 5-B Counselors or any other staff from attorney Frank Louis Cikutovich's
telephone number: [phone] during the period April of 2008 through July of
2009.
Response: No documents responsive to this request are within defendant's
possession, custody or control.
Analysis and Ruling:
Plaintiff contends that he disclosed documents to Defendant reflecting calls by his
attorney to USP Atwater Counselors. It appears then that Plaintiff possesses the
documents relevant to his request. Regardless, Defendant’s sworn response says no
such documents exist. She cannot be ordered to produce that which she does not have.

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Document Request No. 22: All post-office receipts or records containing the
information indicating BOP's Officials rejection of every piece, box, letter, item,
etc., of Plaintiff's mail.
Response: No documents responsive to this request are within defendant's
possession, custody or control.

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Analysis and Ruling:

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Plaintiff argues the documents are relevant to his claim because they will indicate

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which employee was working in the mail room and therefore who rejected his legal mail.

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While the documents may be relevant to Plaintiff’s claim, Defendant cannot produce

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what she does not have.

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Document Request No. 24: On or about March 11, 2008, Plaintiff was placed on
the USP Atwater's Institution Call-Out Roster directing Plaintiff to appear at the
Mailroom and or R&D Department. A copy is requested of that specific one-page
roster.
Response: No documents responsive to this request are within defendant's
possession, custody or control.

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Analysis and Ruling:

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Plaintiff argues that this information is relevant because an inmate appears on the

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roster when he is sending or receiving mail. While the documents may be relevant to

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Plaintiff’s claim, Defendant cannot produce what she does not have.

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Document Request No. 25: All Complaints, Actions or Torts (administrative files)
filed against USP Atwater Mailroom and Mailroom staff (in general).
Response: Defendant objects to this request on the grounds that it is overly
broad, unduly burdensome, unlimited as to time, and not reasonably calculated to
lead to the discovery of admissible evidence.
Document Request No. 26: All Grievances (administrative files) filed against
USP Atwater Mailroom and Mailroom staff (general): BP8, BP9, BP10, and
BP11's.
Response: Defendant objects to this request on the grounds that it is overly
broad, unduly burdensome, unlimited as to time, and not reasonably calculated to
lead to the discovery of admissible evidence.

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Analysis and Ruling:

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Plaintiff argues that the documents requested are relevant because they will

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indicate whether similar complaints/grievances were made, against whom, and who else

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was aware of the complaints/grievances. Plaintiff has not shown that the requested

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documents are likely to lead to the discovery of admissible evidence. See Valenzuela v.

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Smith, 2006 U.S. Dist. LEXIS 6078, *5-6 (E.D. Cal. Feb. 15, 2006) (request for all

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complaints and investigations against defendants to prove a pattern of medical

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indifference denied as overbroad and burdensome and for failure to show likelihood of

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leading to discoverable evidence). The fact other complaints may have been made

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against Defendant is not relevant to the issue of whether Plaintiff’s complaints in this

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case are justified. Fed. R. Evid. 404(a)(1).

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Document Request No. 27: Name and respective title or position of all persons
trained to handle incoming and outgoing legal mail from September 12, 2006, to
current date.
Response: Defendant objects to this request on the grounds that it calls for a
narrative response, not the production of documents or tangible things. Defendant
further objects to this request on the grounds that it is overly broad, unduly
burdensome, and not reasonably calculated to lead to the discovery of admissible
evidence.

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Analysis and Ruling:

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Plaintiff argues that he was unable to specify dates because Defendant refused to

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participate in the discovery process. However, it does not appear from Defendant’s

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objection that she is disputing the specificity of the dates. Plaintiff fails to explain the

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relevancy of the information. Defendant’s objection on relevancy and over breadth is

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well taken.

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Document Request No. 29: Name and contact information of the following USP
Atwater--who are or were--employed BOP personnel likely to have personal
knowledge related to Plaintiff's claims: 1) Dennis Smith; 2) Mr. Martinez; 3) Mr.
Luke; 4) Mr. Capel; 5) Ms. Capel; 6) Mr. Bucio; 7) Mr. Fisher; B) Mr. Silva; 9) Ms.
Orosco; 10) Mr. Reyes; 11) Ms. Spencer; 12) Ms. Gonzaga; 13) Mr. Liwag; 14)
Mr. VanHorn; 15) Mr. Coggins; 16) Mr. Jesse Martinez.
Response: Defendant objects to this request on the grounds that it calls for a
narrative response, not production of documents or tangible things.
Analysis and Ruling:
Plaintiff argues that the documents are likely to lead to admissible evidence
because the individuals listed likely have information regarding his claims. However,
Plaintiff’s request is not for “documents”; it is a request for Defendant to provide detailed
information. Additionally, Plaintiff fails to explain why and how the requested information
might be discoverable and why Defendant’s objection is deficient and unjustified.

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Document Request No. 30: All information on how Electronic, Digital and/or
Magnetic Data is saved, stored or retrieved for and from storage: Institution Video
Surveillance and Inmate Telephonic Audio Recordings.
Response: Defendant objects to this request on the grounds that it calls for a
narrative response, not the production of documents or tangible things. Defendant
further objects on the grounds that the request is overly broad, unduly
burdensome, fails to describe items with reasonable particularity as required by
Rule 34(b)(1)(A), and is not reasonably calculated to the lead to the discovery of
admissible evidence. No claim surviving the Court's screening in this case relates
to "Institution Video Surveillance" or “Inmate Telephonic Audio Recordings."

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Analysis and Ruling:

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Plaintiff contends that the documents will lead to discoverable information but fails

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to articulate why.

Defendant’s objections are well taken, and Plaintiff makes no

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argument that they are deficient and unjustified.
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Document Request No. 34: All e-mail information related to Plaintiff's regular
mail, mail rejections or legal calls.
Response: Defendant objects to this request on the grounds that it is vague and
ambiguous with respect to the phrase "all e-mail information." Defendants further
object on the grounds that the request is overly broad, unduly burdensome,
unlimited as to time, and not reasonably calculated to lead to the discovery of
admissible evidence.

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Analysis and Ruling:
Plaintiff contends the documents can be obtained by “implementing search
features naming Plaintiff's full name and Federal Register Number.” Plaintiff’s argument
appears to be in response to Defendant’s objection regarding the ambiguity of the
phrase “all e-mail information.” However, Plaintiff has not indicated how the information
is relevant, why the request is not overbroad and burdensome, or why the remainder of
Defendant’s objection is deficient and not justified.
Document Request No. 40: All the audio recordings of the hearings held during
the month of April of 2005, under Case No. CR-05-00105-LRS; USA v. Raul S.
Zavala, Before Magistrate Imbrogno or Judge Suko.
Document Request No. 41: Audio recordings of hearings held April 29, 2005,
under Case No. CR-05-00105-LRS; USA v. Raul S. Zavala, Before Judge
Magistrate Imbrogno or Judge Suko.
Document Request No. 42: Audio recordings of a hearing held on May 4, 2005,
under Case No. CR-05-00105 LRS; USA v. Raul S. Zavala, Before Judge
Magistrate Imbrogno or Judge Suko.
Document Request No. 43: Audio recordings of a hearing held on May18, 2005,
under Case No. CR-05 00105-LRS; USA v. Raul S. Zavala, Before Judge
Magistrate Imbrogno or Judge Suko.
Document Request No. 44: Audio recordings of a hearing held on May 26, 2005,
under Case No. CR-05 00105-LRS; USA v. Raul S. Zavala, Before Judge
Magistrate Imbrogno or Judge Suko.
Document Request No. 45: Audio recordings of a hearing held on November 7,
2005, under Case No. CR-05-00105-LRS; USA v. Raul S. Zavala, before the
honorable Judge Suko.
Document Request No. 46: Audio recordings of a hearing held on November 8,
2005, under Case No. CR 05-00105-LRS; USA v. Raul S. Zavala, before the
honorable Judge Suko.
Document Request No. 47: Audio recordings of a hearing held on December 12,
2005, under Case No. CR-05 00105 LRS; USA v. Raul S. Zavala, before the
honorable Judge Suko.
Document Request No. 48: Audio recordings a hearing held on January 19,
2006, under Case No. CR-05-00105-LRS; USA v. Raul S. Zavala, before the
honorable Judge Suko.
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Document Request No. 49: Audio recordings the first day of trial held on January
23, 2006, under Case No. CR 05-00105-LRS; USA v. Raul S. Zavala, before
honorable Judge Suko.
Document Request No. 50: Audio recordings of the second day of trial held on
January 24, 2006, under Case No. CR-05 00105-LRS; USA v. Raul S. Zavala,
before honorable Judge Suko.
Document Request No. 51: Audio recordings of the third day of trial held on
January 25, 2006, under Case No. CR 05-00105 LRS; USA v. Raul S. Zavala,
before honorable Judge Suko.
Document Request No. 52: The “shorthand notes” created by Court Reporter
Topper Baker of Plaintiff's first, second and third day of trial held on January 2325, 2006, under Case No. CR-05-00105-LRS; USA v. Raul S. Zavala, before
honorable Judge Suko.
Response to Request Nos. 40-52: Defendant objects to this request on the
grounds that it is not reasonably calculated to lead to the discovery of admissible
evidence relevant to the claim that survived the Court's screening orders. Subject
to and without waiving such objection, defendant responds that no documents
responsive to this request are within defendant's possession, custody or control.

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Analysis and Ruling:

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Plaintiff argues that Defendant’s employer (the Department of Justice or BOP)

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has the documents and therefore they are within the possession, custody or control of

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Defendant. However, Plaintiff has not indicated how the audio recordings or a court

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reporter’s “shorthand notes” of a trial in an unrelated case are relevant to the instant

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action. Defendant’s objection is sustained.

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Document Request No. 54: Provide Plaintiff for copy and inspection all evidence
Defendant's intend to use at trial pursuant to Federal Rules of Civil Procedure
Rule 26, et seq.
Response: Defendant has not yet identified “all evidence” that defendant intends
to use at trial. Defendant may use at trial any or all of the documents produced
herewith, in addition to any and all documents already filed as attachments to
court documents in this action and such other documents as may be produced in
further discovery.

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Analysis and Ruling:

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Plaintiff argues that Defendant Gonzaga has been uncooperative and that he has

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not been able to communicate with her regarding discovery matters. Plaintiff fails to

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articulate how Defendant’s response is deficient. It appears to be responsive.

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Document Request No. 55: Names and respective title or position of all persons,
BOP Employees or non-BOP Employees authorized to pick up or receive mail
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and legal mail, (mail that is authorized or not) at the post-office or any other postoffice outside the USP Atwater institution or inside the USP Atwater institution.
Document Request No. 56: Names of all persons, BOP Employees or non-BOP
Employees authorized to reject, deny, decline or refuse pick up of any authorized
or non authorized regular mail and legal mail at the post-office or any other postoffice outside the USP Atwater institution or inside the USP Atwater institution.
Document Request No. 58: Names and dates of all USP Atwater Mailroom
employees that were hired, dates and reasons for termination, and their
educational training at the time during the period of September 12, 2006, up until
the time and month of July 2009.
Response to Request Nos. 55, 56, and 58: Defendant objects to this request on
the grounds that it calls for a narrative response, not the production of documents
or tangible things. Defendant further objects to this request on the grounds that it
is overly broad, unlimited as to time, fails to describe items with reasonable
particularity as required by Rule 34 (b)(1)(A), and is not reasonably calculated to
lead to discovery of admissible evidence.

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Analysis and Ruling:

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Plaintiff argues that Defendant’s employer (the Department of Justice or BOP)

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has the documents and therefore they are within the possession, custody or control of

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Defendant. However, Plaintiff has not indicated how the requested information is

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relevant, reasonably limited, or why Defendant’s objections are deficient and not

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justified.

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Document Request Nos. 8 & 43:

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Plaintiff also lists Request Nos. 8 and 43 in his motion. However, Plaintiff fails to

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meet his threshold burden of detailing why he believes Defendant's responses to these

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two requests are deficient, why Defendant’s objections are not justified, and why the

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information he seeks through discovery is relevant to the prosecution of this action.
Plaintiff’s First Set of Interrogatories

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C.

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A party may propound interrogatories “relat[ing] to any matter that may be
inquired into under Rule 26(b).”

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objectionable merely because it asks for an opinion or contention that relates to fact or

26

the application of law to fact. . .” Fed. R. Civ. P. 33(a)(2).

27
28

Fed. R. Civ. P. 33(a)(2).

“An interrogatory is not

24

The responding party is obligated to respond to the interrogatories to the fullest
extent possible. See Fed. R. Civ. P. 33(b)(3). Any objections “must be stated with
13

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4
5
6

specificity.” Fed. R. Civ. P. 33(b)(4). “The responding party shall use common sense
and reason” in its responses; “hyper-technical, quibbling, or evasive objections will not
be” viewed favorably by the Court. Haney v. Saldana, 2010 U.S. Dist. LEXIS 93447 at
*9 (E.D. Cal. Aug. 24, 2010). Further, the responding party has a duty to supplement
any responses if the information sought is later obtained or the response provided needs
correction. Fed. R. Civ. P. 26(e)(1)(A).

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8
9
10
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12
13
14

Defendant Gonzaga argues that Plaintiff’s motion to compel should be denied
because his blanket request to compel answers to all of the interrogatories fails to meet
his initial burden of articulating what responses he disputes and why they are
inadequate. In Plaintiff’s reply, he specifies which responses are in dispute and argues
that the information requested will lead to discoverable evidence. He also argues that
Defendant Gonzaga has not demonstrated that she attempted to acquire the requested
information or that it is irrelevant to Plaintiff’s claims.1 The disputed interrogatories and
the Court’s ruling on each are as follows:

15

22

INTERROGATORY NO. 8: Identify any and all documents related to any
complaint, grievance, criticism, censure, reprimand or rebuke directed toward any
United States Penitentiary Atwater Prison mailroom staff from September 12,
2006, through and including the date of your response.
Response: Defendant objects to this request on the grounds that it is overly
broad, unduly burdensome, and not reasonably calculated to lead to the
discovery of admissible evidence regarding the claim that survived the Court's
screening. Subject to this objection, defendant responds that she is unable to
identify any and all such documents. The majority of complaints from inmates or
their family members about rejected items involved publications and photographs
deemed inappropriate under the Correspondence policies. Plaintiff's own
grievances to USP Atwater mailroom staff are already in plaintiff's possession.

23

Analysis and Ruling:

24

Plaintiff argues that he is not seeking complaints from other inmates’ families and

16
17
18
19
20
21

25
26
27
28

In Plaintiff’s Affidavit in support of his motion, he contends that the information requested in
Interrogatory Nos. 5 and 7 are also relevant to his case, but he fails to discuss in his motion or
his reply that these two interrogatories are in dispute. He also fails to identify why Defendant’s
responses are deficient and not justified. Therefore, to the extent that these interrogatories are
also the subject of his motion, his motion to compel a response is denied.
1

14

1
2
3
4
5

that the information will lead to discoverable evidence. The Court finds the interrogatory
to be grossly overbroad and to call for information not properly discoverable. Plaintiff
fails to explain how the information is relevant and why the request is not overly broad
and unduly burdensome.

He also fails to dispute that the requested information is

“inappropriate under the Correspondence policies.”

6

20

INTERROGATORY NO. 22: Identify any and all documents or complaints filed by
inmates or outside persons or sources against the United States Penitentiary
Atwater prison mailroom department or mailroom staff starting from September
12, 2006, until the date of your termination as a United States Penitentiary
Atwater prison employee through and including the date of your response to this
request.
Response: Defendant objects to this request on the grounds that it is overly
broad, unduly burdensome, and not reasonably calculated to lead to the
discovery of admissible evidence regarding the claim that survived the Court's
screening. Subject to this objection defendant responds that she is unable to
identify any and all such documents. Plaintiff’s own grievances to USP Atwater
mailroom staff are already in plaintiff's possession.
INTERROGATORY NO. 23: Identify any and all administrative remedies filed
against United States prison mailroom department or mail room staff starting from
September 12, 2006, until the date of your termination as a United States
Penitentiary Atwater prison employee through and including the date of your
response to this request.
Response: Defendant objects to this request on the grounds that it is overly
broad, unduly burdensome, and not reasonably calculated to lead to the
discovery of admissible evidence regarding the claim that survived the Court's
screening. Subject to this objection, defendant responds that she is unable to
identify any and all such documents. Plaintiff’s own administrative remedies are
already in plaintiff's possession, they are remedy number 459123 and remedy
number 50639.

21

Analysis and Ruling:

22

Plaintiff misconstrues his burden in bringing a motion to compel. He argues that

23

Defendant Gonzaga failed to prove she attempted to obtain the information or how it is

24

overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery

25

of admissible evidence. Plaintiff – not Defendant – carries the initial burden of providing

26

to the Court why Defendant’s objection is deficient and not justified. Plaintiff has not met

27

this threshold burden for these two interrogatories.

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8
9
10
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15
16
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19

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5
6
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16
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INTERROGATORY NO. 24: Identify any and all persons who, to you or your
attorney's knowledge, would know or have facts relevant to conduct described in
these interrogatories.
Response: Defendant objects to this request on the grounds that it is vague,
ambiguous and overbroad with respect to the phrase "would know or have facts
relevant to the conduct these interrogatories." Subject to this objection, defendant
responds that to the extent plaintiff's request refers to the processing of inmate
mail at USP Atwater during the relevant time period, the persons identified in the
Response to Interrogatory No. 1 would have knowledge regarding such facts.
Analysis and Ruling:
Plaintiff disregards Defendant Gonzaga’s objection and argues that she failed to
identify any persons in response to the request. Plaintiff fails to meet his threshold
burden to overrule Defendant’s objection to this interrogatory. Additionally, it appears
from Defendant’s response that she did identify the relevant persons to Plaintiff’s request
in her response to interrogatory no. 1.
INTERROGATORY NO. 25: Identify any and all of your trial defenses.
Response: Discovery is ongoing, dispositive motions and motion in limine have
not yet been filed or ruled upon, and trial preparations are not complete.
Accordingly, defendant has not and cannot yet identify each every defense that
will be presented at trial. Subject to these limitations, defendant responds as
follows: Bivens liability is premised on proof of direct personal responsibility.
Defendant did not reject plaintiff's legal mail. Defendant did not violate plaintiff's
rights under the Fifth Amendment. Plaintiff cannot demonstrate any causal
connect between conduct of defendant and any deprivation of plaintiff's
constitutional rights. Plaintiff cannot establish that he suffered damages as a
proximate result of any conduct by defendant. Defendant also is entitled to
qualified immunity from Plaintiff's claims.
Analysis and Ruling:
Plaintiff argues that discovery is not complete because Defendant is

22

uncooperative and has failed to provide responses to his request. Even if the Court

23

accepts this as true, Plaintiff has not alleged why the requested information is relevant

24

and discoverable, and how Defendant’s response is incomplete, deficient, and

25

unjustified.
D.

26

Plaintiff’s Request for Admissions, Set One

27

“A party may serve on any other party a written request to admit . . . the truth of

28

any matters within the scope of Rule 26(b)(1) relating to . . . facts, the application of law
16

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8
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to fact, or opinions about either; and . . . the genuineness of any described documents.”
Fed. R. Civ. P. 36(a)(1). “If a matter is not admitted, the answer must specifically deny it
or state in detail why the answering party cannot truthfully admit or deny it . . . The
answering party may assert lack of knowledge or information as a reason for failing to
admit or deny only if the party states that it has made reasonable inquiry and that the
information it knows or can readily obtain is insufficient to enable it to admit or deny.”
Fed. R. Civ. P. 36(a)(4).
As an initial matter, Plaintiff filed his motion to compel answers to his requests for
admissions, set one on December 4, 2014 after the deadline for the close of discovery in
this case. (ECF Nos. 73 & 95.) Given Defendant does not object to the motion on
untimeliness grounds and Plaintiff is a pro se litigant, it will not be denied on these
grounds.
In Plaintiff’s motion to compel, he listed only the numbers for the requests that he
objected to without providing further detail and argued that Defendant’s requests were
unreasonable and that his requests would assist him in identifying the unknown
defendants.

Defendant Gonzaga argues that Plaintiff failed to articulate meaningful

grounds for his motion, attach the requests to his motion, or meet the minimum
requirements for disputing discovery responses. In Plaintiff’s reply, he lists the following
requests, responses, and arguments as to why his motion should be granted. The
Court’s analysis and ruling on each is detailed below.

21

23

REQUEST NO. 9: On October 10, 2007, at approximately 11:30, you were
standing outside the USP Atwater food service kitchen during mainline.
Response: Defendant lacks information sufficient to admit or deny the request.

24

Analysis and Ruling:

25

Plaintiff argues that the response is insufficient because Defendant Gonzaga

22

26

failed to explain why she cannot respond, why the information is not within her ability to

27

obtain, and what attempts were made to acquire the information.

28
17

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2
3
4
5
6

While Defendant may fail to admit or deny a request for admission based on a
lack of information, she must state that she “has made reasonable inquiry and that the
information [she] knows or can readily obtain is insufficient to enable [her] to admit or
deny.” Fed. R. Civ. P. 36(a)(4). Defendant has failed to do so, and therefore Plaintiff’s
motion is granted as to this request. Defendant must amend her response in
accordance with Fed. R. Civ. P. 36(a).

7

11

REQUEST NO. 14: On October 10, 2007, at approximately 11:30 am you told
Plaintiff Raul Sanchez Zavala that an “Authorization to Receive Package or
Property” form was not necessary to receive mail from an attorney.
Response: Admit that Defendant, during a conversation with Plaintiff at USP
Atwater, explained to Plaintiff that if a package had the necessary markings, a
package authorization was not necessary. Defendant lacks sufficient information
to admit or deny that this conversation occurred at the referenced date and time.

12

Analysis and Ruling:

13

Plaintiff argues that the response is insufficient because Defendant Gonzaga

8
9
10

14

failed to explain why she cannot respond, why the information is not within her ability to

15

obtain, and what attempts were made to acquire the information.

16

Defendant has failed to indicate that she “made reasonable inquiry” to confirm the

17

date and time of the conversation and that after such inquiry the information she knows

18

or can readily obtain is still “insufficient to enable [her] to admit or deny.” Fed. R. Civ. P.

19

36(a)(4). Plaintiff’s motion is granted as to this request. Defendant must amend her

20

response in accordance with Fed. R. Civ. P. 36(a).

21
22
23
24
25
26
27
28

REQUEST NO. 15: During your time of employment at the United States
Penitentiary Atwater prison, inmate complaints were filed against you for
mishandling mail under Policy Statement 5800.10 or Code of Federal
Regulations.
Response: Defendant objects to the request on the grounds that it is not relevant
to any claim or defense in this action. Admit that mail related inmate "cop-outs"
are frequent.
REQUEST NO. 16: During your time of employment at the United States
Penitentiary Atwater prison, grievances were filed against you under Code
Federal Regulations or Bureau of Prisons Policy Statement Violations.
Response: Defendant objects to the request on the grounds that it is not relevant
to any claim or defense in this action.
18

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3
4
5
6
7
8
9
10

Analysis and Ruling:
Plaintiff argues that the information is relevant because it concerns inmate mail
and relates to his due process claims.
While the request is limited to inmate complaints regarding mail, Plaintiff has not
shown that the requested documents are likely to lead to the discovery of admissible
evidence. See Valenzuela v. Smith, 2006 U.S. Dist. LEXIS 6078, *5-6 (E.D. Cal. Feb.
15, 2006) (request for all complaints and investigations against defendants to prove a
pattern of medical indifference denied as overbroad and burdensome and for failure to
show likelihood of leading to discoverable evidence). Therefore, Defendant’s objection
is sustained.

11
12
13
14

REQUEST NO. 19: During your time of employment at United States Penitentiary
Atwater prison, you did not have to give the inmate notice of any returned or
rejected incoming inmate mail that was not in compliance with mail related Bureau
of Prisons Policy Statement or Code of Federal of (sic) Regulations.
Response: Defendant objects to the request on the grounds that it is
unintelligible.

15
16
17
18
19
20
21
22
23
24
25
26
27
28

Analysis and Ruling:
Plaintiff clarifies that he is requesting whether Defendant was required to give
notice to an inmate of any mail that was rejected due to policy or other federal regulatory
reasons.
Plaintiff’s request and clarification is reasonably intelligible. Defendant shall
provide a response in accordance with Fed. R. Civ. P. 36 or indicate a further objection.
REQUEST NO. 31: On October 10, 2007, at approximately 11:30 am you told
Raul Sanchez Zavala that an "Authorization to Receive Package or Property”
form was not necessary to receive mail from an attorney. Plaintiff Zavala then
requested that you return the "Authorization to Receive Package or Property"
form, you refused to return the form to Plaintiff Zavala, then laughed at Plaintiff
Zavala and stated that you were not going to return the form.
Response: Admit that Defendant, during a conversation with Plaintiff at USP
Atwater, explained to Plaintiff that if a package had the necessary markings, a
package authorization was not necessary. Defendant lacks sufficient information
to admit or deny that this conversation occurred at the referenced date and time.
As to the remainder of the request, deny.
19

1

Analysis and Ruling:

2

Plaintiff argues that the response is insufficient because Defendant Gonzaga

3

failed to explain why she cannot respond, why the information is not within her ability to

4

obtain, and what attempts were made to acquire the information.

5

Defendant has failed to indicate that she “made reasonable inquiry” to confirm the

6

date and time of the conversation and that after such inquiry the information she knows

7

or can readily obtain is still “insufficient to enable [her] to admit or deny.” Fed. R. Civ. P.

8

36(a)(4). Defendant must amend her response with respect to the date and time of the

9

conversation in accordance with Fed. R. Civ. P. 36(a).

10

12

REQUEST NO. 46: During your time of employment at United States Penitentiary
Atwater prison through and including the date of your response to this request, 28
C.F.R. § 540.2 et seq., has been amended, edited or supplemented.
Response: Defendant lacks information sufficient to admit or deny.

13

Analysis and Ruling:

14

Plaintiff argues that the response is insufficient because Defendant Gonzaga

11

15

failed to explain why she cannot respond, why the information is not within her ability to

16

obtain, and what attempts were made to acquire the information.

17

While Defendant may fail to admit or deny a request for admission based on a

18

lack of information, she must state that she “has made reasonable inquiry and that the

19

information [she] knows or can readily obtain is insufficient to enable [her] to admit or

20

deny.” Fed. R. Civ. P. 36(a)(4). Defendant has failed to do so. Defendant must amend

21

her response in accordance with Fed. R. Civ. P. 36(a).

22
23
24
25
26
27
28

REQUEST NO. 47: At any time during your official capacities you have been
accused of lying.
Response: Defendant objects to request on the grounds that it is not relevant to
any claim or defense in this action.
REQUEST NO. 96: You have lied in the past.
Response: Defendant objects to the request on grounds that it is not relevant to
any claim or defense in this action.
Analysis and Ruling:
Plaintiff argues the request is reasonable and goes to the credibility of Defendant.
20

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3
4
5
6
7
8
9
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Plaintiff’s requests are overbroad and unduly burdensome. They are not tailored to the
timeframe of his complaint or to Defendant Gonzaga’s role as a mailroom supervisor.
Additionally, it is not likely to lead to the discovery of admissible evidence. See Fed. R.
Evid. 404; see also Valenzuela v. Smith, 2006 U.S. Dist. LEXIS 6078, *5-6 (E.D. Cal.
Feb. 15, 2006) (request for all complaints and investigations against defendants to prove
a pattern of medical indifference denied as overbroad and burdensome and for failure to
show likelihood of leading to discoverable evidence). Whether or not a party has been
accused of lying or has lied “in the past” is not relevant except as to show character, and
character evidence is not admissible to show behavior on the occasion at issue. Fed. R.
Evid. 404.

11

14

REQUEST NO. 56: During your time of employment at the United States
Penitentiary Atwater prison, there was some type of video surveillance or any type
of cameras at the post-office where you have picked up or rejected incoming or
outgoing of any type of inmate mail.
Response: Defendant lacks sufficient information to admit or deny the request.

15

Analysis and Ruling:

16

Plaintiff argues that the response is insufficient because Defendant Gonzaga

12
13

17

failed to explain why she cannot respond, why the information is not within her ability to

18

obtain, and what attempts were made to acquire the information.

19

While Defendant may fail to admit or deny a request for admission based on a

20

lack of information, she must state that she “has made reasonable inquiry and that the

21

information [she] knows or can readily obtain is insufficient to enable [her] to admit or

22

deny.” Fed. R. Civ. P. 36(a)(4). Defendant has failed to do so. Defendant must amend

23

her response in accordance with Fed. R. Civ. P. 36(a).

24
25
26
27

REQUEST NO. 70: On October 10, 2007, at approximately 11:30 am, Ms.
Fuentes was standing within a few feet from you during mainline hours at the
United States Penitentiary Atwater prison inmate food.service area.
REQUEST NO. 71: On October 10, 2007, at approximately 11:30 am, the Warden
was standing within a few feet from you during mainline hours at the United
States Penitentiary Atwater prison inmate food service area.

28
21

1
2
3
4
5
6
7
8
9
10

Response to Request Nos. 70-71: Defendant lacks knowledge or information
sufficient to admit or deny the request.
Analysis and Ruling:
Plaintiff argues that the responses are insufficient because Defendant Gonzaga
failed to explain why she cannot respond, why the information is not within her ability to
obtain, and what attempts were made to acquire the information.
Defendant fails to state she “has made reasonable inquiry and that the
information [she] knows or can readily obtain is insufficient to enable [her] to admit or
deny.” Fed. R. Civ. P. 36(a)(4). Defendant must amend her responses in accordance
with Fed. R. Civ. P. 36(a).

12

REQUEST NO. 74: All Bureau of Prisons Inmate Telephone System telephonic
records are permanently stored in any format.
Response: Defendant lacks information sufficient to admit or deny the request.

13

Analysis and Ruling:

14

Plaintiff argues that the responses are insufficient because Defendant Gonzaga

11

15

failed to explain why she cannot respond, why the information is not within her ability to

16

obtain, and what attempts were made to acquire the information.

17

Defendant fails to state she “has made reasonable inquiry and that the

18

information [she] knows or can readily obtain is insufficient to enable [her] to admit or

19

deny.” Fed. R. Civ. P. 36(a)(4). Defendant must amend her responses in accordance

20

with Fed. R. Civ. P. 36(a).

21
22
23
24

REQUEST NO. 67: You have never had a polygraph test conducted on you.
REQUEST NO. 79: You have been asked to take a polygraph test.
Response to Request Nos. 67 & 79: Defendant objects to the request on
grounds that it is not relevant to any claim or defense in this action.
REQUEST NO. 100: You look forward in taking a polygraph test related only to
matters surrounding this civil action.
Response: Defendant objects to this request on the ground that it is unintelligible.

25
26
27

Analysis and Ruling:
Plaintiff argues the request is reasonable and goes to the credibility of Defendant.

28
22

1
2
3

Defendant’s objection as to relevance is sustained. While the requests are reasonably
intelligible, Plaintiff has not articulated how the information is relevant or that it will likely
lead to admissible evidence.

4
REQUEST NO. 68: During your time of employment at the United States
Penitentiary Atwater prison, you did not have to request for permission to reject
any kind of inmate mail from the post-office or from any place outside the United
States Penitentiary Atwater prison where mail was picked up by you or any BOP
Official.
Response: Defendant objects to this request on grounds that it is unintelligible.
Deny that Defendant personally rejected inmate mail while at USP Atwater.
REQUEST NO. 57: During your time at the United States Penitentiary Atwater
prison, you always requested for permission to reject any kind of inmate mail from
inside the United States Penitentiary prison.
Response: Defendant objects to this request on grounds that it is unintelligible.
REQUEST NO. 93: During your time of employment at the United States
Penitentiary Atwater prison, you requested for permission to reject any kind of
inmate mail from inside United States Penitentiary prison.
Response: Defendant objects to this request on grounds that it is unintelligible.

5
6
7
8
9
10
11
12
13

Analysis and Ruling:

14

Plaintiff contends that the objections are unreasonable because the request

15
16
17
18
19
20
21
22
23
24

seeks to know whether Defendant had to request permission prior to rejecting inmate
mail.
Plaintiff’s request and clarification is reasonably intelligible. Defendant shall
provide a response in accordance with Fed. R. Civ. P. 36 or indicate a further objection.
REQUEST NO. 94: During your time of employment at the United States
Penitentiary Atwater prison, you have communicated with any United States
Attorney or their assistants.
REQUEST NO. 95: During your time of employment at the United States
Penitentiary Atwater prison, you have communicated with any United States
Attorney or their assistant concerning mail from any inmate at the United States
Penitentiary Atwater prison.
Response to Request Nos. 94 & 95: Defendant objects to the request on
grounds that it is not relevant to any claim or defense in this action.

25
26
27
28
23

1
2
3
4

Analysis and Ruling:
Plaintiff’s conclusory statement that communication with the U.S. Attorney is
relevant to his inmate mail claims is unsupported by any facts or explanation as to how
or why such communication would be relevant. Defendant’s objection is sustained.

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
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23
24
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REQUEST NO. 105: The Department of Justice has access to United States
Penitentiary Atwater prison institution surveillance.
REQUEST NO. 106: The Bureau of Prisons has access to the United States
Penitentiary Atwater prison institution video surveillance.
REQUEST NO. 107: You, your supervisors, or your employers have access to the
United States Penitentiary Atwater prison institution video surveillance.
Response to Request Nos. 105-107: Defendant objects to the request on the
grounds that it is not relevant to any claim or defense in this action. Without
waiving this objection, defendant responds she lacks sufficient information to
admit or deny the request.
Analysis and Ruling:
Plaintiff argues that the surveillance video is material evidence to his claim and
that he has attested to its relevancy in an affidavit. Additionally, he argues Defendant’s
response is insufficient because she failed to explain why she cannot respond, why the
information is not within her ability to obtain, and what attempts were made to acquire
the information.
Plaintiff has not filed an affidavit with this motion. Therefore, it is unclear from
Plaintiff’s response how any of the requested entities’ or individuals’ access to the
prison’s video surveillance is relevant to his claims regarding inmate mail. Defendant’s
objection is sustained.
REQUEST NO. 108: You, your supervisors, or your employers have access to the
United States Penitentiary Atwater prison institution Inmate Telephone audio
recordings for Plaintiff's outgoing USP Atwater telephone calls for the months of
September and October of 2006.
Response: Defendant objects to the request on the grounds that it is not relevant
to any claim or defense in this action.
REQUEST NO. 109: Plaintiff Zavala's Inmate Telephone audio recordings for
Plaintiff's outgoing USP Atwater telephone call for the months of September and
October of 2006 exist and are stored in any format.

28
24

1
2

Response: Defendant objects to the request on the grounds that it is not relevant
to any claim or defense in this action. Without waiving this objection, defendant
responds that she lacks sufficient information to admit or deny the request.

3

Analysis and Ruling:

4

Plaintiff argues that the telephone recordings are material evidence to his claim

5

and that he has attested to its relevancy in an affidavit. Additionally, he argues

6

Defendant’s response is insufficient because she failed to explain why she cannot

7

respond, why the information is not within her ability to obtain, and what attempts were

8

made to acquire the information.

9

As noted above, Plaintiff has not filed an affidavit with this motion. It is unclear

10

from Plaintiff’s response or the allegations of his Seventh Amended Complaint how the

11

mere existence of recordings of his phone calls and Defendant’s access to them are

12

relevant to his due process claims regarding inmate mail. Defendant’s objection is

13

sustained.

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

REQUEST NO. 117: Exhibit D, are copies of the original if not the actual original
documents.
REQUEST NO. 118: Exhibit E, are copies of the original if not the actual original
documents.
REQUEST NO. 119: Exhibit F, are copies of the original if not the actual original
documents.
REQUEST NO. 120: Exhibit G, are copies of the original if not the actual original
documents.
REQUEST NO. 122: Exhibit I, are copies of the original if not the actual original
documents.
REQUEST NO. 125: Exhibit L, are copies of the original if not the actual original
documents.
REQUEST NO. 126: Exhibit M, are copies of the original if not the actual original
documents.
REQUEST NO. 127: Exhibit N, are copies of the original if not the actual original
documents.
REQUEST NO. 128: Exhibit O, are copies of the original if not the actual original
documents.
REQUEST NO. 129: Exhibit P, are copies of the original if not the actual original
documents.
REQUEST NO. 146: Exhibit GG, are copies of the original if not the actual original
documents.
REQUEST NO. 147: Exhibit HH, are copies of the original if not the actual original
documents.
25

1

REQUEST NO. 150: Exhibit KK, are copies of the original if not the actual original
documents.
REQUEST NO. 151: Exhibit LL, are copies of the original if not the actual original
documents.
REQUEST NO. 152: Exhibit MM, are copies of the original if not the actual
original documents.
REQUEST NO. 153: Exhibit NN, are copies of the original if not the actual original
documents.
REQUEST NO. 154: Exhibit OO, are copies of the original if not the actual original
documents.
REQUEST NO. 163: Exhibit XX, are copies of the original if not the actual original
documents.
Response to Request Nos. 117-120, 122, 125-129, 146-47, 150-54, & 163:
Defendant lacks information sufficient to admit or deny request.

2
3
4
5
6
7
8
9

Analysis and Ruling:

10
11
12

Plaintiff argues Defendant’s response is insufficient because she failed to explain
why she cannot respond, why the information is not within her ability to obtain, and what
attempts were made to acquire the information.

13
14
15
16
17
18
19

Plaintiff may properly seek for defendant to admit or deny “the genuineness of any
described documents.” Fed. R. Civ. P. 36(a)(1). While Defendant may fail to admit or
deny a request for admission based on a lack of information, she must state that she
“has made reasonable inquiry and that the information [she] knows or can readily obtain
is insufficient to enable [her] to admit or deny.” Fed. R. Civ. P. 36(a)(4). Defendant has
failed to do so. Defendant must amend her response in accordance with Fed. R. Civ. P.
36(a).

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21

IV.

MOTIONS TO SERVE ADDITIONAL DISCOVERY, TAKE DEPOSITIONS, AND
EXTEND THE DISCOVERY TIMEFRAME

22

Plaintiff seeks leave to serve thirty-six additional requests for admission and ten

23

additional interrogatories on Defendant Gonzaga and leave to take the written deposition

24

of Defendant Gonzaga, USP Atwater Mailroom Officials Marc Fisher, Robert Martinez,

25

Derrick Capel, Joshua Lopez, Michael Bucio, and Ray Luke, his former appellate

26

counsel Karen Lindholdt, and his former trial counsel Frank Cikutovich. Plaintiff argues

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that he did not learn until October 24, 2014 in Defendant’s response to his

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interrogatories the names of the six individuals who could potentially be Defendants A
and B. Additionally, he did not learn until November 20, 2014 information regarding new
claims against Defendant Gonzaga and her credibility.

Plaintiff contends that he

diligently filed these requests on November 26, 2014 and December 2, 2014.
Defendant Gonzaga argues that Plaintiff has not demonstrated good cause or
exercised diligence in completing discovery. Plaintiff waited over three months from the
Court’s scheduling order before serving discovery on Defendant. Further, Plaintiff has
not explained how he has been diligent or the substance and necessity of the additional
discovery.
Federal Rule of Civil Procedure 16(b)(4) allows the Court to modify its scheduling
order for good cause. The “good cause” standard focuses primarily on the diligence of
the party seeking the amendment. Johnson v. Mammoth Recreations, Inc., 975 F.2d
604, 609 (9th Cir.1992). “[C]arelessness is not compatible with a finding of diligence and
offers no reason for a grant of relief.” Id. “Although the existence or degree of prejudice
to the party opposing the modification might supply additional reasons to deny a motion,
the focus of the inquiry is upon the moving party's reasons for seeking modification.” Id.
The Court has wide discretion to extend time, Jenkins v. Commonwealth Land Title Ins.
Co., 95 F.3d 791, 795 (9th Cir. 1996), provided a party demonstrate some justification for
the issuance of the enlargement order. Fed. R. Civ. P. 6(b)(1); Ginett v. Fed. Express
Corp., 166 F.3d 1213 at 5* (6th Cir. 1998).
Plaintiff has not identified what new claims or issues need to be explored against
Defendant Gonzaga or why taking her written deposition is necessary. Likewise, he has
not provided any reason to take the depositions of his previous trial and appellate
counsel. Therefore, Plaintiff has not shown good cause for an extension of time to
depose any of these individuals.
On the other hand, Plaintiff’s written depositions of the named USP Atwater
mailroom officials may assist him in identifying Defendants A and B. Plaintiff has also

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shown reasonable diligence in requesting the information. According to Plaintiff, he did
not learn of the new information regarding potential identities of Defendants A and B until
October 24, 2014. Plaintiff states that he attempted to contact Defendant Gonzaga
numerous times at the end of October and in November 2014 regarding his requests
with no response.

extension of the discovery deadline, which was unopposed by Defendant Gonzaga, until
October 30, 2014. The Court denied the motion without prejudice because Plaintiff did
not explain why discovery should be extended. For all these reasons, Plaintiff will be
granted 30 days from the date of this order to complete written depositions of USP
Atwater Mailroom Officials Marc Fisher, Robert Martinez, Derrick Capel, Joshua Lopez,
Michael Bucio, and Ray Luke. Plaintiff will be limited to asking each of these named
individuals fifteen questions without subparts.

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Additionally, the Court did not rule on Plaintiff’s first request for

In light of the Court’s ruling on the written depositions of the mailroom officials,
Plaintiff’s request to serve additional interrogatories and requests for admissions on
Defendant Gonzaga regarding these officials would be cumulative and is therefore
denied.

To the extent that any of Plaintiff’s proposed additional interrogatories and

requests for admissions go to his claims against Defendant Gonzaga, he has not
articulated why the information could not have been requested and obtained by the initial
discovery deadline of November 30, 2014. Additionally, the proposed interrogatories
and requests, appear to be duplicative of those already propounded on Defendant
Gonzaga. Therefore, Plaintiff’s motions to propound these additional interrogatories and
requests on Defendant Gonzaga are denied. (ECF Nos. 85, 86, & 93.)
V.

MOTION FOR JUDGMENT
Plaintiff cites to Fed. R. Civ. P. 56(a) and argues that he is entitled to “judgment

on the pleadings” as to one of his claims against Defendant Gonzaga based on his
affidavits, documents, and other evidence. Defendant Gonzaga argues that Plaintiff
appears to be confusing a partial motion for summary judgment under Fed. R. Civ. P.

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56(a) with a motion for judgment on the pleadings under Fed. R. Civ. P. 12(c) and that
Plaintiff has failed to provide any evidence or materials to support his request.

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Plaintiff has not articulated any evidence or facts to support his motion. If Plaintiff
wishes to file a motion for summary judgment, he must demonstrate “that there is no
genuine dispute as to any material fact” and that he is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). He should follow the procedures outlined in Fed. R. Civ. P.
56 to support his motion.
without prejudice.
VI.

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RULE 54(b) MOTION
It appears that Plaintiff is seeking reconsideration of this Court’s order finding only

his Fifth Amendment claim against Defendants Gonzaga, A, and B cognizable. (ECF
No. 71.)

Plaintiff previously filed objections to this Court’s order and a motion for

reconsideration, both of which were previously denied. (ECF Nos. 75 & 79.) Plaintiff
has provided no basis for granting a motion for reconsideration.

Silva or stated a cognizable claim under the Federal Tort Claims Act.
VII.

ORDER
Accordingly, for the reasons stated, it is HEREBY ORDERED that:
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Defendant Gonzaga; and motion for leave to relate back are

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DENIED (ECF Nos. 81, 114, 115, & 119);
2.

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Plaintiff’s second motion for a 45-day extension to amend; motion
for leave to amend; motion for leave to add claims against

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It remains the

conclusion of the Court that Plaintiff has not stated claims against Defendants Capel or

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Plaintiff’s motion for judgment (ECF No. 116.) is denied

Plaintiff’s motions to compel production of documents and answers
to first set of interrogatories are DENIED (ECF Nos. 82 & 83.);

3.

Plaintiff’s motion to compel answers to request for admissions, set
one is DENIED, in part, and GRANTED, in part.

(ECF No. 95.)

Defendant is to provide further responses to request nos. 9, 14, 19,

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150-54, & 163.

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The Discovery deadline is extended thirty (30)

days from the date of this order to allow Defendant to do so.

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4.

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Plaintiff’s motions to serve additional interrogatories and requests
for admission are DENIED (ECF Nos. 85 & 86.);

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5.

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Plaintiff’s motion to take written depositions, motion to extend the
discovery cut-off date, and motion for leave to conduct additional

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discovery and add defendants are DENIED, in part, and GRANTED,

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in part.

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(ECF No. 84, 93, & 118.)

Plaintiff may take written

depositions of USP Atwater Mailroom Officials Marc Fisher, Robert

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Martinez, Derrick Capel, Joshua Lopez, Michael Bucio, and Ray

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Luke. He is limited to fifteen (15) questions without subparts.

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The discovery deadline is extended for thirty (30) days from the

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date of this order to allow Plaintiff to complete these depositions.

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Plaintiff’s Rule 54(b) motion is DENIED (ECF No. 113); and

7.

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Plaintiff’s Rule 56(a) motion is DENIED without prejudice. (ECF No.
116).

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IT IS SO ORDERED.

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Dated:

March 16, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
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