Thomas v. Wilber et al

Filing 56

ORDER Denying 46 Motion to Compel, without Prejudice to Renewal within Thirty Days signed by Magistrate Judge Sheila K. Oberto on 11/27/2012. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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JASON LATRELL THOMAS,

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Plaintiff,

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CASE NO. 1:10-cv-00006-AWI-SKO PC
ORDER DENYING MOTION TO COMPEL,
WITHOUT PREJUDICE TO RENEWAL
WITHIN THIRTY DAYS

v.
M. WILBER, et al.,

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(Doc. 46)
Defendants.
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Order Denying Motion to Compel
I.

Introduction

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Plaintiff Jason Latrell Thomas, a state prisoner proceeding pro se and in forma pauperis, filed

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this civil rights action pursuant to 42 U.S.C. § 1983 on January 4, 2010. Plaintiff filed a motion to

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compel responses to his requests for the production of documents, set one, on July 2, 2012, and

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Defendants filed an opposition on July 20, 2012. Pursuant to the order filed on September 5, 2012,

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Defendants re-served their opposition at Plaintiff’s current address of record on September 17, 2012.

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Plaintiff did not file a reply and the motion has been submitted upon the record. Local Rule 230(l).

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II.

Legal Standard

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“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any

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party’s claim or defense. . . . Relevant information need not be admissible at the trial if the discovery

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appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P.

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26(b)(1). For document production requests, responding parties must produce documents which are

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in their “possession, custody or control.” Fed. R. Civ. P. 34(a)(1). “Property is deemed within a

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party’s ‘possession, custody, or control’ if the party has actual possession, custody, or control thereof
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or the legal right to obtain the property on demand.” Allen v. Woodford, No. CV-F-05-1104 OWW

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LJO, 2007 WL 309945, *2 (E.D.Cal. Jan. 30, 2007) (citing In re Bankers Trust Co., 61 F.3d 465, 469

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(6th Cir. 1995)); accord Bovarie v. Schwarzenegger, No. 08cv1661 LAB (NLS), 2011 WL 719206,

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at *4 (S.D.Cal. Feb. 22, 2011); Evans v. Tilton, No. 1:07CV01814 DLB PC, 2010 WL 1136216, at

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*1 (E.D.Cal. Mar. 19, 2010).

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The party moving to compel bears the burden of demonstrating why the objection is not

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justified or the response is deficient. E.g., Grabek v. Dickinson, No. CIV S-10-2892 GGH P, 2012

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WL 113799, at *1 (E.D.Cal. Jan. 13, 2012); Womack, 2011 WL 6703958, at *3; Mitchell v. Felker,

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No. CV 08-119RAJ, 2010 WL 3835765, at *2 (E.D.Cal. Sep. 29, 2010); Ellis v. Cambra, No. 1:02-

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cv-05646-AWI-SMS PC, 2008 WL 860523, at *4 (E.D.Cal. Mar. 27, 2008). This requires the

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moving party to inform the Court which discovery requests are the subject of the motion to compel,

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and, for each disputed response, why the information sought is relevant and why the responding

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party’s objection or response is not meritorious. Grabek, 2012 WL 113799, at *1; Womack, 2011

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WL 6703958, at *3; Mitchell, 2010 WL 3835765, at *2; Ellis, 2008 WL 860523, at *4.

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III.

Discussion

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Plaintiff seeks to compel a response to document production request number 2 (POD 2), and

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he seeks to compel Defendants’ complete personnel records and the complete investigation report

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for incident of physical force on the August 25, 2007. With respect to POD 2, the Court finds that

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Plaintiff has not met his burden as the moving party. The relevance of “[a]ll documents, 602s,

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written letters of complaints against each defendant from June 2006 until September 2007, by any

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inmate” is not apparent on the face of the request and the request is overly broad.

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With respect to Defendants’ personnel files and the investigation report, there are no

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document production requests for those items. In moving to compel, Plaintiff may only seek to

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compel further responses to the discovery requests he actually served on Defendants. To the extent

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the investigation report is one of the documents covered by a broader request, the Court would be

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required to speculate and it declines to do so. It is Plaintiff’s burden to supply the information

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necessary for the Court to reach his request for further production on the merits.

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The Court will permit Plaintiff thirty days within which to renew his motion to compel as to

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POD 2 and the investigation report. Plaintiff’s motion to compel the production of Defendants’

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personnel files is denied with prejudice, as no such request was made in POD, set one.

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IV.

Order

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For the foregoing reasons, it is HEREBY ORDERED that:

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1.

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Plaintiff’s motion to compel a response to POD 2 and the investigation report is
DENIED, without prejudice;

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2.

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Plaintiff’s motion to compel the production of Defendants’ personnel files is
DENIED, with prejudice; and

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3.

The Court will permit Plaintiff to renew his motion within thirty (30) days, if he

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believes he can cure the deficiencies identified with respect to POD 2 and the

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investigation report.

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IT IS SO ORDERED.

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Dated:
ie14hj

November 27, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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