Shepard v. Cohen et al

Filing 50

ORDER Denying 40 Motion to Compel signed by Magistrate Judge Gary S. Austin on 08/12/2014. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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1:11-cv-00535-GSA-PC

LAMONT SHEPARD,

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ORDER DENYING PLAINTIFF’S
MOTION TO COMPEL
(Doc. 40.)

Plaintiff,

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vs.

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COHEN, et al.,

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Defendants.

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I.

BACKGROUND

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Lamont Shepard (APlaintiff@) is a state prisoner proceeding pro se in this civil rights

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action filed pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint commencing this action

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on March 30, 2011. (Doc. 1.) This action now proceeds on the Second Amended Complaint

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against defendants Dr. Cohen, Sgt. J. Lopez, Correctional Officer (C/O) Z. Dean, C/O J.

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Campbell, and Vera Brown (LVN) on Plaintiff's due process claim and against defendants Dr.

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Cohen, Sgt. J. Lopez, C/O Z. Dean, and C/O J. Campbell on Plaintiff's excessive force claim.

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(Doc. 41.) Defendants Lopez, Dean, and Campbell have filed an Answer to the Second

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Amended Complaint. (Doc. 43.) To date, defendants Cohen and Brown have not been served

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with process or appeared in this action. (Court Record.)
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On January 29, 2014, the Court issued a Scheduling Order establishing a deadline of

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September 29, 2014, for the parties to complete discovery, including the filing of motions to

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compel. (Doc. 22.)

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documents from defendants Lopez, Dean, and Campbell (“Defendants”). (Doc. 40.) On May

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23, 2014, Defendants filed an opposition to the motion to compel. (Doc. 42.) Plaintiff has not

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filed a reply to the opposition, and his deadline under Local Rule 230 has expired. L. R. 230(l).

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(Court Record.)
Plaintiff’s motion to compel, filed on May 9, 2014, is now before the court.

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On May 9, 2014, Plaintiff filed a motion to compel production of

II.

MOTION TO COMPEL

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A.

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Under Rule 26(b), A[U]nless otherwise limited by court order, the scope of discovery is

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as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to

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any party's claim or defense C including the existence, description, nature, custody, condition,

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and location of any documents or other tangible things and the identity and location of persons

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who know of any discoverable matter. For good cause, the court may order discovery of any

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matter relevant to the subject matter involved in the action.1 “Relevant information need not be

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admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of

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admissible evidence.@ Fed. R. Civ. P. 26(b)(1).

Federal Rules of Civil Procedure 26(b), 34, and 37(a)

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Pursuant to Rule 34(a) of the Federal Rules of Civil Procedure, Aany party may serve on

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any other party a request to produce and permit the party making the request . . . to inspect and

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copy any designated documents . . . which are in the possession, custody or control of the party

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upon whom the request is served.@ Fed. R. Civ. P. 34(a)(1). A[A] party need not have actual

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possession of documents to be deemed in control of them.@ Clark v. Vega Wholesale Inc., 181

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F.R.D. 470, 472 (D.Nev. 1998) quoting Estate of Young v. Holmes, 134 F.R.D. 291, 294

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(D.Nev. 1991). AA party that has a legal right to obtain certain documents is deemed to have

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AEvidence is relevant if (a) it has any tendency to make a fact more or less probable than it would be
without the evidence; and (b) the fact is of consequence in determining the action.@ Fed. R. Evid. 401.

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control of the documents.@ Clark, 181 F.R.D. at 472; Allen v. Woodford, No. CV–F–05–1104

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OWW LJO, 2007 WL 309945, *2 (E.D.Cal. Jan. 30, 2007) (citing In re Bankers Trust Co., 61

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F.3d 465, 469 (6th Cir.1995)); accord Evans v. Tilton, No. 1:07CV01814 DLB PC, 2010 WL

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1136216, at *1 (E.D.Cal. Mar. 19, 2010).

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Under Rule 34(b), the party to whom the request is directed must respond in writing

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that inspection and related activities will be permitted as requested, or state an objection to the

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request, including the reasons.

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documents as they are kept in the usual course of business or must organize and label them to

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correspond to the categories in the request.@ Fed. R. Civ. P. 34(b)(E)(I).

Fed. R. Civ. P. 34(b)(2). Also, A[a] party must produce

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Pursuant to Rule 37(a), a party propounding discovery may seek an order compelling

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disclosure when an opposing party has failed to respond or has provided evasive or incomplete

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responses. Fed. R. Civ. P. 37(a)(3)(B). A[A]n evasive or incomplete disclosure, answer, or

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response must be treated as a failure to disclose, answer, or respond.@ Fed. R. Civ. P. 37(a)(4).

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AIt is well established that a failure to object to discovery requests within the time required

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constitutes a waiver of any objection.@ Richmark Corp. v. Timber Falling Consultants, 959

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F.2d 1468, 1473 (9th Cir. 1992) (citing Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981)).

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The moving party bears the burden of demonstrating Aactual and substantial prejudice@ from the

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denial of discovery. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002) (citations

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omitted.).

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Discussion

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Plaintiff requests a court order compelling Defendants to make further responses to

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Plaintiff’s Request for Production of Documents (“RFP”) Nos. 5, 7, 9, 11, and 13. Plaintiff has

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re-stated the relevant five RFP’s for the court’s review. However, Plaintiff has not provided

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any evidence of Defendants’ responses to the five RFP’s, made any argument whatsoever in

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support of his motion, nor filed a reply to Defendants’ opposition.

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Based on the lack of any argument by Plaintiff, the court finds that Plaintiff has not met

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his burden of demonstrating actual and substantial prejudice from the denial of discovery. A

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motion to compel must be accompanied by a copy of Plaintiff=s discovery requests at issue and
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a copy of Defendants’ responses to the discovery requests. Further, as the moving party,

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Plaintiff bears the burden of informing the court, for each disputed response, why Defendants=

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responses are not justified. Plaintiff may not simply assert that he is dissatisfied with some of

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Defendants= responses, without argument or evidence. The court shall not attempt to guess why

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Plaintiff objects to Defendants’ responses. For these reasons, Plaintiff’s motion to compel shall

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be denied.

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III.

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CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that

Plaintiff=s

motion

compel, filed on May 9, 2014, is DENIED.

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IT IS SO ORDERED.
Dated:

August 12, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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