McClellan v. Kern County Sheriff's Office et al

Filing 106

ORDER GRANTING In Part and DENYING In Part Defendants' 89 Motion to Compel, signed by Magistrate Judge Michael J. Seng on 7/27/2015. Thirty Day Deadline. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GREGORY MCCLELLAN,
Plaintiff,

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v.

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KERN COUNTY SHERIFF’S OFFICE,
et al.,

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Defendant.

Case No. 1:10-cv-0386-LJO-MJS (PC)
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION TO COMPEL
(ECF No. 89)
THIRTY (30) DAY DEADLINE

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Plaintiff is a prisoner proceeding pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983. The action proceeds on Plaintiff’s excessive force
claim against Defendants Lozano, Wood, and Perkins, who have appeared in the action.
(ECF Nos. 23, 71, & 73.)

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On June 12, 2015, Defendants filed a motion to compel further responses to

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interrogatories. (ECF No. 89.) Plaintiff opposed the motion on June 29, 2015. (ECF No.

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92.) Defendants filed a reply on July 6, 2015. (ECF No. 96.)
I.

LEGAL STANDARD

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

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discovery regarding any non-privileged matter that is relevant to any party’s claim or

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defense, and for good cause, the Court may order discovery of any matter relevant to

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the subject matter involved in the action. Fed. R. Civ. P. 26(b)(1). Relevant information
need not be admissible at the trial if the discovery appears reasonably calculated to lead

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to the discovery of admissible evidence. Id.
Generally, if the responding party objects to a discovery request, the party moving

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to compel bears the burden of demonstrating why the objections are not justified. E.g.,

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Grabek v. Dickinson, No. CIV S-10-2892 GGH P., 2012 WL 113799, at *1 (E.D. Cal. Jan.

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13, 2012); Ellis v. Cambra, No. 1:02-cv-05646-AWI-SMS (PC), 2008 WL 860523, at *4

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(E.D. Cal. Mar. 27, 2008). This requires the moving party to inform the Court which

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discovery requests are the subject of the motion to compel, and, for each disputed
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response, why the information sought is relevant and why the responding party’s

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objections are not meritorious. Grabek, 2012 WL 113799, at *1; Womack v. Virga, No.

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CIV S-11-1030 MCE EFB P., 2011 WL 6703958, at *3 (E.D. Cal. Dec. 21, 2011).

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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). “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

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Committee’s note (2000 Amendment) (Gap Report) (Subdivision (b)(1)).
II.

PLAINTIFF’S CLAIMS
Plaintiff alleges that Defendants Lozano Wood and Perkins slammed Plaintiff to

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the pavement when they arrested him on August 17, 2009. Defendant Wood and

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Perkins twisted Plaintiff’s arms behind his back and placed their knees on his back.

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Plaintiff knelt on the ground and Defendant Lozano tackled him. Plaintiff has had

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serious lingering physical injuries and mental health issues since the incident.

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III.

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DEFENDANTS’ MOTION TO COMPEL
On March 6, 2015, Defendant Woods served a first set of interrogatories on

Plaintiff, who filed timely responses. Defense counsel wrote two letters to Plaintiff

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outlining alleged deficiencies in these responses and requesting supplemental
responses. Plaintiff replied to both letters, indicating that he had responded fully and
declining to provide any additional information.
Defendants now move to compel, arguing that “Plaintiff’s discovery responses are
entirely inadequate.” (ECF No. 89, at 4.) Defendants point out that Plaintiff has not
complied with Local Rule 250.2(a), which sets forth the proper format for filing answers

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or objections to interrogatories, and that he has not properly verified the contents of his
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interrogatory responses. They argue that Plaintiff’s responses to Interrogatories No. 1-4,

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12, and 17-21 impermissibly refer to or incorporate other documents, including the

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complaint; that Plaintiff’s response to Interrogatory No. 8 is not complete; that his

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responses to Interrogatories Nos. 14-16 and 22 impermissibly withhold information on

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the grounds that Defendants have independent access to it; and that Plaintiff has not

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provided required facts in his response to Interrogatory No. 23. The Court examines

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these contentions below.
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A. Local Rule 250.2
Local Rule 250.2(a) requires the party propounding interrogatories to include a

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blank space after each question to enable the answering party to insert his responses or

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objections. The answering party then has two choices: he may either use the spaces

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provided for his responses, or he “shall retype the interrogatories along with the answers

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and/or objections.” Local Rule 250.2(a)(emphasis added). Plaintiff did neither. Instead,

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his retyped responses omit the interrogatories entirely. (ECF No. 89-2, at 13-16.) This

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violates Local Rule 250.2, and makes it difficult for anyone reading Plaintiff’s responses

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to ascertain the question he is purporting to answer. The supplemental responses
Plaintiff should submit in response to this order must comply with Local Rule 250.2, and

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include not only responses or objections, but the interrogatory itself.
B. Verification
Fed. R. Civ. P. 33(b)(3) requires interrogatory answers to be “answered

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separately and fully in writing under oath.” Where the answers are not sworn or

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notarized, such oaths should take substantially the following form:

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“I declare (or certify, verify, or state) under penalty of perjury that the
foregoing is true and correct. Executed on (date).”

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28 U.S.C. § 1746(2); Ayuso-Figueroa v. Rivera-Gonzalez, 456 F.Supp.2d 309,

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315 (D.P.R. 2005); see also, e.g., Davenport v. Bd. of Trustees of St. Ctr. Cmty. Coll.

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Dist., 654 F.Supp. 2d 1073, 1083 (E.D. Cal. 2009); Deseret Mgmt. Corp. v. United

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States, 75 Fed. Cl. 571, 574-575 (Fed. Cl. 2007).

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Plaintiff’s oath states that he “swear[s] under penalty of perjury” that his
interrogatory answers are “answered fully.” (ECF No. 89-2, at 17.) This wording is

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ambiguous, and leaves room for doubt regarding whether Plaintiff has attested to the
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truth of his interrogatory answers. See Deseret Mgmt. Corp., 75 Fed. Cl. At 574

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(requiring defendant to change the language of his oath, where previous phrasing

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“create[d] questions about the completeness of the answers and whether the answers

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will ultimately bind the party making them”). Upon submitting supplemental interrogatory

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responses, Plaintiff must include a new oath that includes the language quoted above.

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C. Interrogatories 1-4, 12, and 17-21: Incorporation by Reference
1. Interrogatory No. 1
Please state all facts which support your claim that defendant Louis
Woods used excessive force as alleged in your complaint.
a. Plaintiff’s Response
See paragraphs 2-6 as stated in the Fourth Amended Complaint
filed under case no. 1:10-cv-00386-LJO-MJS (PC).
2. Interrogatory No. 2
Please identify all persons who can support your claim that
defendant Louis Woods used excessive force as alleged in your complaint.
b. Plaintiff’s Response
Same Response as above to Interrogatory No. 1.
3. Interrogatory No. 3
Please state all facts which support your claim that defendant
Kenneth Perkins used excessive force as alleged in your complaint.
a. Plaintiff’s Response
Same Response as above to Interrogatory No. 1.
4. Interrogatory No. 4
Please identify all persons who can support your claim that
defendant Kenneth Perkins used excessive force as alleged in your
complaint.
a. Plaintiff’s Response
Same Response as above to Interrogatory No. 1.
5. Interrogatory No. 12
Please describe all special damages which you believe you have
incurred as a result of the subject incident.
a. Plaintiff’s Response:
All damages are listed in FAC on page 3.
6. Interrogatory No. 17
Please identify all witnesses to this incident.
a. Plaintiff’s Response
Sergeant Leonard Larson, BP.D. (Badge #573) informed defendants
LOZANO, WOOD (or WOODS), and PERKINS, to not file any charges
because ‘excessive force’ used. Plaintiff himself heard the conversation
between arresting defendants and Sergeant Larson. Court records and
Pitchess Motion, pictures, etc., reveals and supports ‘excessive force’ civil
rights violations. Also see paragraph 5 of FAC, page 4.
7. Interrogatory No. 18
Please state all facts which support your claim that you are entitled
to damages from defendant Louis Woods.
a. Plaintiff’s Response
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Same for Interrogatory No. 17. Also see paragraphs 2-6 of FAC.
8. Interrogatory No. 19
Please identify all persons who can support your claim that you are
entitled to
damages from defendant Louis Woods.
a. Plaintiff’s Response
Same for Interrogatory No. 17. Also see paragraphs 2-6 of FAC.
9. Interrogatory No. 20
Please state all facts which support your claim that you are entitled
to damages from defendant Kenneth Perkins.
a. Plaintiff’s Response
Same for Interrogatory No. 17. Also see paragraphs 2-6 of FAC.
10. Interrogatory No. 21
Please identify all persons who can support your claim that you are
entitled to damages from defendant Kenneth Perkins.
a. Plaintiff’s Response:
Same for Interrogatory No. 17. Also see paragraphs 2-6 of FAC.
11. Defendants’ Objections to Interrogatories 1-4, 12, and 17-21 are
substantially identical:
“Plaintiff’s response is improper. He is required to provide an answer to
the interrogatory which is complete in itself and he should not refer to the
pleadings, or to depositions or other documents, or to other interrogatories.
Mulero-Abreu v. P.R. Police Dep’t, 675 F.3d 88, 93 (1st Cir. 2012); Scaife
v. Boenne, 191 F.R.D. 590, 594. (N.D. Ind. 2000).
Plaintiff should be ordered to amend his response accordingly.”
Defendants also argue that Interrogatory No. 17 is non-responsive, and
that Plaintiff should be required to provide the names, addresses, and
telephone numbers of any witnesses.
12. Analysis
The Court agrees that Plaintiff’s responses to Interrogatories 1-4, 12, and 17-21 are
insufficient because they refer either to his complaint or to responses to previous
interrogatories. Rule 33(b)(3) requires each interrogatory to be answered separately and
fully, without reference to other interrogatories or documents. Mulero-Abreu v. P.R.

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Police Dep’t, 675 F.3d 88, 93 (1st Cir. 2012)(“answering interrogatories simply by
directing the proponent to rummage through other discovery materials falls short of the
obligations imposed by Rule 33”); United States ex rel. O’Connell v. Chapman
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University, 245 F.R.D. 646, 650 (C.D. Cal. 2007)(“an interrogatory should be complete in

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itself and should not refer to the pleadings, or to depositions or other documents, or to

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other interrogatories”).

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References to statements in a complaint are also problematic because such
statements are mere allegations; an interrogatory response, by contrast, contains facts

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that Plaintiff has verified under penalty of perjury are true and correct to the best of his
knowledge. Hash v. Cate, No. C 08-03729, 2012 WL 6043966, at *3 (N.D. Cal. Dec. 5,

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2012); see also Guerrero v. McClure, No. CIV S-10-0318 GEB, 2011 WL 4566130, at *6

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(E.D. Cal. Sept. 29, 2011). Plaintiff must be specific as to the amount of damages he is

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requesting, and may not merely refer Defendants to other documents where he has

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enumerated the damages sought. See Ray v. Wash. Nat’l Ins. Co., 190 F.R.D. 658, 665

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(D. Mont. 1999); Beckner v. El Cajon Police Dep't, No. 07cv509, 2008 WL 2033708, at
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*6 (S.D. Cal. May 9, 2008).

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Accordingly, Plaintiff will be ordered to provide good faith, supplemental

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responses to Defendants’ interrogatories, omitting references to other documents, and

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specifying as clearly as possible the facts requested by each interrogatory. See Hickman

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v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 91 L.Ed. 451 (1947) (“Mutual knowledge of

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all the relevant facts gathered by both parties is essential to proper litigation. To that

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end, either party may compel the other to disgorge whatever facts he has in his
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possession.”).
The Court also agrees the Plaintiff’s response to Interrogatory No. 17 is non-

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responsive, and orders him to provide the names and last known addresses and phone

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numbers of all witnesses. If he is not in possession of requested information, he should

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so state in his response to that particular interrogatory.

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D. Interrogatory No. 8: Medical History
1. Interrogatory No. 8
Please identify any and all health care providers, including but not limited to
medical doctors, psychologists, psychiatrists or other medical practitioners and medical
and psychological facilities, you have consulted with or have been treated by in the past
ten (10) years.
a. Plaintiff’s Response
Health Care providers are CDCR and Kern County Sheriff Department.
2. Defendants’ Objections
This interrogatory asks for all health care providers who have
treated the Plaintiff for the last ten years, not just relating to this incident.
Plaintiff should be ordered to amend his response to include all health care
providers whom he has seen in the last ten years.
3. Analysis

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The Court will grant the motion to compel as to Interrogatory No. 8. Plaintiff’s

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complaint attributes the onset of post-traumatic stress disorder, as well as serious

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physical injuries, including three broken vertebrae and a hip replacement, to Defendants’

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alleged use of excessive force. The medical care Plaintiff received after the arrest is

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relevant to the question of damages; Plaintiff’s pre-arrest care is relevant to determining

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which injuries were actually the result of force used during Plaintiff’s arrest. See

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Gatewood v. Stone Container Corp., 170 F.R.D. 455, 460 (S.D. Iowa 1996). In addition,
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Defendants requested the names of individual health providers, not merely the agencies

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that employed them. Accordingly, the Court will order Plaintiff to supplement his

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interrogatory responses with the names, specialties, and place of employment of the

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medical and mental health staff who have treated him, in and outside of prison, for last

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decade.
E. Interrogatories 14-16: Criminal Records and History

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1. Interrogatory No. 14
Please identify each and every felony you have been convicted of,
including (a) the city and state where you were convicted; (b) the date of
conviction; (c) the offense; (d) the court and case number.
a. Plaintiff’s Response
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Response in accord with Court Order; Defendants have full access
to this information, as they are peace officers.

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2. Interrogatory No. 15
Please identify each and every misdemeanor you have been
convicted of, including (a) the city and state where you were convicted; (b)
the date of conviction; (c) the offense; (d) the court and case number.
a. Plaintiff’s Response
Defendants have full access to this information, as they are peace officers.

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3. Interrogatory No. 16
Were you on parole at the time of the subject incident? If so, please
identify: (1) the name of your parole officer or agent; (2) any and all terms
of your parole; (3) the date your parole commenced; and (4) the date your
parole ended.
a. Plaintiff’s response
Defendant[s] have full access to this information, as they are peace
officers.
4. Interrogatory No. 22
Please state each and every time when you have been
incarcerated, including the dates of incarceration, conviction, and place of
incarceration.
a. Plaintiff’s Response:
Defendants have full access to this information, as they are peace
officers.
b. Defendants’ Objections to Interrogatories 14, 15, 16, and 22 are
substantially identical:
“Defendants do not know what Court Order Plaintiff is referring to in
his response [to Interrogatory No. 14]. Further, Plaintiff is required to
respond to this interrogatory whether or not another party may have access
to some of the information. Surely, he is aware of his own criminal history
and he is required to so state. Reference to information in the possession
of government agencies, without also producing the information or
documents, does not justify any refusal to provide a substantive, narrative
response under Fed. R. Civ. P. 33.
Further, Plaintiff’s response that the Defendants have full access to
information regarding the Plaintiff’s criminal history is equally flawed.
Defendants have no knowledge regarding the Plaintiff’s criminal history
outside of any arrests made by the Bakersfield Police Department, do not
know what crimes the Plaintiff has been convicted of, etc.
However, this information is unarguably discoverable. Plaintiff’s
criminal history goes directly to not only his credibility but to liability and
damages in this case. While a complete and honest response to this
interrogatory may be embarrassing to the Plaintiff or shed [sic] him in an
unfavorable light, he is required to provide a complete and further response
to this interrogatory. Plaintiff should be ordered to amend his response
accordingly.”
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5. Analysis

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Defendants’ objections to Interrogatories 14, 15, and 16 are well taken. Although
Defendants’ positions as peace officers may give them some access to Plaintiff’s parole

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or conviction history, Plaintiff provides no evidence that they have access to all of it.

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Meanwhile, Plaintiff’s conviction history is relevant for impeachment purposes. Fed. R.

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Evid. 609. His status as a parolee may likewise be relevant to establishing whether the

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arrest, and potentially the use of force, by Defendants was warranted. Therefore,
Plaintiff must supply the requested information regarding his prior felony and

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misdemeanor convictions, as well as the details of his parole status, in supplemental

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responses. See Del Campo v. Am. Corrective Counseling Svcs., No. C 01-21151, 2008

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WL 2038047, at *5 (N.D. Cal. May 12, 2008); Wyatt v. City of Richland Police Dep’t, No.

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CV-05-5013, 2005 WL3118123, at *1 (E.D. Wash. Nov. 22, 2005).

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However, Defendants have not provided support for the relevancy of the places
where Plaintiff was previously incarcerated, as requested in Interrogatory No. 22. As
stated above, Defendants may impeach Plaintiff’s testimony with evidence of his prior

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convictions. However, Defendants may not impeach Plaintiff with prior arrests or

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charges of which he was not convicted. See Wyatt, No. CV-05-5013, 2005 WL3118123,

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at *1. It is not clear what relevance even post-conviction places of incarceration would

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have, beyond the relevance of the convictions themselves, and Defendants have not

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provided any information on this point. Accordingly, the Court will deny Defendants’

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motion to compel as to Interrogatory No. 22, and Plaintiff need not supplement his

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response to that interrogatory.
F. Interrogatory No. 23: Incorporation of Requests for Admission
1. Interrogatory No. 23
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For each Plaintiff’s Response to each request for admission served
with these interrogatories that is an unqualified admission:
(a) state the number of the request;
(b) state all facts upon which you base your Plaintiff’s Response;
(c) state the names, addresses , and telephone numbers of all
persons who have
knowledge of those facts;
(d) Identify all documents and other tangible things that support your
Plaintiff’s Response and state the name, address, and telephone number
of the person who has each document or thing.
b. Plaintiff’s Response
There are no unqualified admissions, as the plaintiff’s responses are
based on his own information and what he actually heard or seen or
experienced himself. Sergeant Leonard Larson (Badge #573), took
photographs of plaintiff’s injuries and talked to plaintiff, Sergeant Leonard
Larson (Badge #573) concluded that the arresting defendants used
‘excessive force’. The photographs taken by Sergeant Larson are
consistent with the allegations that are contained in the civil rights
complaint. The Kern County Superior Court also concluded that plaintiff
stated a case for ‘excessive force’ in his Pitchess Motion (BF-131041A)
and allowed plaintiff to look into the personnel records of three
defendants (both WOODS and PERKINS had similar incidents like the one
involving plaintiff on 8-17-2009).
a. Defendants’ Objections
Plaintiff has denied each and every request for admission served on
him. As such, he is required to provide the facts, identity of witnesses, and
documents that support each and every denial separately.
2. Analysis
The Court will deny the motion to compel as to Interrogatory 23. As an initial
matter, Defendants have not included all requests for admission along with the motion to
compel. See ECF No. 89-2, at 28-30(addressing Plaintiff’s denials of Requests for
Admission 13-16). Thus, the Court has no means of evaluating Plaintiff’s denials, or

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even of determining how many requests for admission were served on Plaintiff.
In addition, the Court finds problematic Defendants’ incorporation by reference of

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numerous requests for admission into the interrogatories. Rule 33(a) limits the number

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of interrogatories one party may serve on another to 25. Where an interrogatory asks the

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responding party to provide the basis for denials of requests for admission, there is a

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presumption that each of the underlying requests for admission counts as a separate

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interrogatory. See Safeco of Am. v. Rawstron, 181 F.R.D. 441, 446 (C.D. Cal. 1998);

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Makaeff v. Trump Univ., LLC, No. 10-CV-0940 2014 WL 3490356, at *5 (S.D. Cal. July

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11, 2014). Here, Defendant appears to have served at least 16 requests for admission,
and in the absence of complete information about them, the Court will treat each as a

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separate interrogatory, putting the number of interrogatories above the limit in Rule
33(a).
The distinct purposes of interrogatories and requests for admission support this

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treatment. See Safeco, 181 F.R.D. at 445 (C.D. Cal. 1998); Makaeff, 2014 WL 3490356,

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at *4. “Strictly speaking, Rule 36, [which governs requests for admission,] is not a

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discovery procedure at all, since it presupposes that the party proceeding under it knows

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the facts or has the document and merely wishes its opponent to concede their
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genuineness.” Safeco, 181 F.R.D. at 445 (citations omitted). “Allowing service of an

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interrogatory which requests disclosure of all the information on which the denials of…

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requests for admissions were based essentially transforms each request for admission

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into an interrogatory. This is not the purpose requests for admission were intended to

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serve, and because Rule 36 imposes no numerical limit on the number of requests for

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admission that may be served, condoning such a practice would circumvent the
numerical limit contained in Rule 33(a).” Safeco, 181 F.R.D. at 445; Makaeff, 2014 WL

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3490356, at *7; see also Jadwin v. Cnty. of Kern, No. 1:07-cv-0026 2008 WL 3820288,

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at *2 (E.D. Cal. Aug. 8, 2008)(concluding that interrogatory requiring Defendants to state

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all facts on which unqualified admissions in 290 requests for admission were based was

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“oppressive or unduly burdensome”).

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Accordingly, the Court will deny the motion to compel as to Interrogatory No. 23,

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and will not require Plaintiff to supplement his response to it

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I.

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The Court GRANTS Defendants’ motion to compel (ECF No. 89) as to Interrogatories

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CONCLUSION & ORDER

Nos. 1-4, 8, 12, and 14-21, to which Plaintiff must file supplemental responses. The

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Court DENIES the motion to compel as to Interrogatories Nos. 22 and 23.
Based on the foregoing, it is HEREBY ORDERED that:
1. Defendants’ motion to compel (ECF No. 89) is GRANTED IN PART and DENIED
in PART;
2. Plaintiff shall provide further responses to Interrogatories Nos. 1-4, 8, 12, and 1421 within thirty (30) days of service of this order;

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3. Defendants may, but need not, file a further motion to compel within fourteen (14)
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days of service of Plaintiff’s further response.

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IT IS SO ORDERED.

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Dated:

July 27, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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