Shepard v. Cohen et al

Filing 51

ORDER Granting Plaintiff's 45 Motion to Compel; ORDER Denying Plaintiff's Motion for Sanctions, without Prejudice to Renewal of the Motion within Thirty Days; ORDER for Defendants to Re-Serve their Supplemetnal Responses upon Plaintiff within Ten Days 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 GRANTING PLAINTIFF’S
MOTION TO COMPEL
(Doc. 45.)

Plaintiff,

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vs.

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COHEN, et al.,

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ORDER DENYING PLAINTIFF’S
MOTION FOR SANCTIONS, WITHOUT
PREJUDICE TO RENEWAL OF THE
MOTION WITHIN THIRTY DAYS

Defendants.

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ORDER FOR DEFENDANTS TO RESERVE THEIR SUPPLEMENTAL
RESPONSES UPON PLAINTIFF
WITHIN TEN DAYS

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I.

BACKGROUND

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Lamont Shepard (APlaintiff@) is a state prisoner proceeding pro se and in forma pauperis

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with this civil rights action filed pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint

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commencing this action on March 30, 2011. (Doc. 1.) This action now proceeds on the

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Second Amended Complaint filed on May 19, 2014, against defendants Dr. Cohen, Sgt. J.

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Lopez, Correctional Officer (C/O) Z. Dean, C/O J. Campbell, and Vera Brown (LVN) on

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Plaintiff's due process claim and against defendants Dr. Cohen, Sgt. J. Lopez, C/O Z. Dean, and

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C/O J. Campbell on Plaintiff's excessive force claim. (Doc. 41.) On June 10, 2014, defendants

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Lopez, Dean, and Campbell filed an Answer to the Second Amended Complaint. (Doc. 43.)
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To date, defendants Cohen and Brown have not been served with process nor appeared in this

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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.) The Scheduling Order required the parties to serve responses to written

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discovery requests within forty-five days after the request is first served. (Id. ¶2.)

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On July 7, 2014, Plaintiff filed a motion to compel production of documents from

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defendants Lopez, Dean, and Campbell (“Defendants”).

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Defendants filed an opposition to the motion. (Doc. 46.) On August 7, 2014, Plaintiff filed a

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On July 25, 2014,

reply to the opposition. (Doc. 49.)
Plaintiff’s motion to compel, filed on July 7, 2014, is now before the court.

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(Doc. 45.)

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

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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).

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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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Parties’ Arguments

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Plaintiff requests a court order compelling Defendants to produce documents in

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response to his Request for Production of Documents (“RFP”), Set Two, which Plaintiff asserts

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he served upon Defendants on or about May 4, 2014. Plaintiff has re-stated the relevant three

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RFP’s for the court’s review. Plaintiff alleges that on June 4, 2014, Defendants informed him

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that they would provide responses by June 20, 2014; however, by June 28, 2014, Plaintiff had
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not received any responses. Plaintiff requests sanctions of $1,000.00 as reasonable expenses

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for bringing this motion to compel.

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Defendants assert that Plaintiff served his RFP, Set Two, on April 24, 2014, and that on

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June 6, 2014, Defendants served a Response. (Declaration of John P. Walters, Doc. 46-1 ¶3.)

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In the Response, Defendants explained that a search was being conducted, and that they would

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provide Plaintiff with an update by June 20, 2014.

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Supplemental Responses on July 8, 2014, stating that no documents responsive to RFP Nos. 1

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and 2 were found after a diligent search, and objecting to RFP No. 3 for relevance, without

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producing any documents. (Id. ¶5, Exh. B.) Plaintiff replies that as of July 31, 2014, he had

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(Id., Exh. A.)

Defendants served

not received Defendants’ Supplemental Responses.

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Discussion

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Defendants acknowledge that they failed to provide Plaintiff with an update of their

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search for documents, as promised, by June 20, 2014, and did not serve their Supplemental

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Responses until July 8, 2014.

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Supplemental Responses to the court in support of their opposition, which was served upon

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Plaintiff on July 25, 2014. (Id.) Thus, Plaintiff should now have received the Supplemental

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Responses. However, in the event that Plaintiff somehow did not receive the Supplemental

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Responses when he was served with Defendants’ opposition, Defendants shall be directed to re-

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serve their Supplemental Responses, dated July 8, 2014, upon Plaintiff within ten days.

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Therefore, Plaintiff’s motion to compel shall be granted.

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III.

However, Defendants have submitted their July 8, 2014

DISCOVERY SANCTIONS – RULE 37

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Rule 37(a)(5)(A) of the Federal Rules of Civil Procedure provides that if a motion to

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compel is granted, Athe court must, after giving an opportunity to be heard, require the party or

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deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or

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both to pay the movant's reasonable expenses incurred in making the motion, including

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attorney's fees. But the court must not order this payment if (i) the movant filed the motion

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before attempting in good faith to obtain the disclosure or discovery without court action; (ii)

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the opposing party's nondisclosure, response, or objection was substantially justified; or (iii)

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other circumstances make an award of expenses unjust.@ Fed. R. Civ. P. 37(a)(5)(A).

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Plaintiff requests the imposition of sanctions of $1,000.00 upon Defendants for their

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failure to timely serve responses to Plaintiff’s RFP, Set Two. Plaintiff asserts that $1,000.00 is

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reasonable compensation for his expenses in obtaining this order, arguing that Defendants had

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no substantial justification for their refusal to answer and/or produce the documents requested.

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Defendants have acknowledged that they served their Supplemental Responses in an

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untimely manner. However, Plaintiff submits no evidence that he is reasonably entitled to

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$1,000.00 for his expenses for bringing the motion to compel. Therefore, Plaintiff’s motion for

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sanctions shall be denied, without prejudice to renewal of the motion within thirty days,

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showing evidence of his costs in bringing the motion to compel filed on July 7, 2014.

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IV.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s motion to compel, filed on July 7, 2014, is GRANTED;

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2.

Plaintiff’s motion for sanctions is DENIED, without prejudice to renewal of the

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motion within thirty days of the date of service of this order, showing evidence

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of his costs in bringing the motion to compel filed on July 7, 2014; and

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3.

Defendants are directed to re-serve their Supplemental Responses to Plaintiff’s

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Request for Production of Documents, Set Two, dated July 8, 2014, upon

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Plaintiff within ten days of the date of service of this order, and file a proof of

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service with the court.

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IT IS SO ORDERED.
Dated:

August 12, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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