Butler v. Onyejie et al

Filing 73

ORDER Partially Granting Plaintiff's Motion to Compel and Denying Plaintiff's Motion for Sanctions 34 , signed by Magistrate Judge Michael J. Seng on 9/30/13. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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PERRY C. BUTLER,
Plaintiff,

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ORDER PARTIALLY GRANTING
PLAINTIFF’S MOTION TO COMPEL AND
DENYING PLAINTIFF’S MOTION FOR
SANCTIONS

v.

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CASE NO. 1:011-cv-00723-MJS

DR. O. ONYEJIE, et al.,
ECF No. 34
Defendants.

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I.

Procedural History

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Plaintiff Perry C. Butler (“Plaintiff”), a former state prisoner proceeding pro se and

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in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on April 5,

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2011. The action proceeds against Defendant Onyeje for deliberate indifference to a

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serious medical need in violation of the Eighth Amendment.

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Plaintiff was released on parole on March 2, 2011. Prior to his release he was

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incarcerated in Corcoran State Prison in Corcoran, California. He claims he has suffered

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pain and loss of hearing as a result of Defendants Onyeje’s alleged failure to properly treat

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his ear infection.

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On November 26, 2012, Plaintiff filed a motion to compel further responses to

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specified discovery requests and to recover sanctions. (Mot., ECF No. 34.); Fed. R. Civ.

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P. 37(a). Defendant Onyeje filed an opposition on December 10, 2013. (ECF No. 36.)

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Plaintiff did not file a reply. The motion has been submitted on the record. Local Rule

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230(l).
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After reviewing the motion papers, Court staff requested Defendant Onyeje’s

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voluntary provision to Plaintiff of all available medical documents Plaintiff had requested.

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Defendant Onyeje reports compliance with the Court’s request and provision to Plaintiff of

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documents related to Plaintiff’s medication classification, medication reconciliation,

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medication administration record, chronic care follow-up visits, primary care flow sheets,

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physician’s orders, encounter forms, and health services request forms. (ECF No. 53.)

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Accordingly, the Court will consider these documents as having been produced in

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response to Plaintiff’s discovery and in evaluating Plaintiff’s motion to compel.

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II.

Motion to Compel Response to Requests for Production of Documents

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A party may serve on any other party a request within the scope of Rule 26(b) to

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produce and permit the requesting party or its representative to inspect, copy, test, or

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sample the following items in the responding party’s possession, custody or control: any

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designated documents or tangible things. Fed. R. Civ. P. 34(a)(1) (quotation marks

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omitted).

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Plaintiff seeks to compel responses to production of document requests (“PODs”)
1, 2, 5, 6, 13, 14, 16, 22, and 23.1
A.

POD No. 1

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Request: “Produce Defendant Dr. O. Onyeje’s insurance policy from

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September 1, 2009 to present day that insures Dr. O. Onyeje for injuries he may have

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caused to patients during the course of treating the patient.”

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Response: Defendant Onyeje informed Plaintiff that as a public employee

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Defendant Onyeje would be indemnified were Plaintiff to prevail in the action and that no

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document would be produced in connection with this request.

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Ruling: Plaintiff’s motion to compel is granted in part as follows. Defendant

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Onyeje shall provide to Plaintiff a sworn written response to this request specifying whether

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there is or is not an actual policy of insurance covering Defendant Onyeje for claims such

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The discovery requests and responses at issue in Plaintiff’s m otion to com pel are attached to
Plaintiff’s m otion to com pel. (Mot., ECF No. 34.)

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as those asserted by Plaintiff in this case and, if so, the name of the carrier, the type and

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amount of coverages available, the periods of time covered and whether there is any

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reservation of rights with regard to Plaintiff’s claims. If there is no such policy but only an

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obligation on the part of the state or one of its agencies to indemnify Defendant Onyeje,

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then Defendant Onyeje shall so state under oath and advise whether there is any

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reservation or limit on the obligation to indemnify. See Hawecker v. Sorenson, No. 1:10-cv-

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0085-OWW-JLT (E.D. Cal. Jan. 12, 2011) (unpublished) (granting motion to compel

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production of insurance documents related to property at issue in the case since the

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insurance funds could be used to pay any judgment in the case); Jacobs v. Scriber, No.

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1:06-cv-01280-AWI-GSA-PC (E.D. Cal. Nov. 8, 2010) (unpublished) (granting motion to

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compel documents that related to insurance agreements that could cover any judgment

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against the defendants and in the event that such documents were not available, requiring

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defendants to provide an affidavit to that effect);

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B.

POD Nos. 2, 5, 6, 13, 14, and 16

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Requests: In essence, these POD’s cumulatively request production of all

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records in Defendant Onyeje’s possession relating to Plaintiff’s symptoms, complaints,

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requests for treatment, and treatment of Plaintiff’s ear symptoms and impairment and

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particular with regard to medications prescribed therefore.

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Responses: Defendant Onyeje generally objected and declined to respond

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to these PODs. However, in response to Court inquiry, Defendant advises that he since

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has produced to Plaintiff medical records relating to Plaintiff. (ECF No. 53.)

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Ruling: Given Defendant’s supplemental production to Plaintiff of all of

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Plaintiff’s medical records in Defendant’s possession, custody, or control, these requests

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are denied without prejudice at this time. If after review, Plaintiff has a good faith objective

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basis to believe Defendant has not produced all documents as requested and/or that the

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production is deficient in some way, Plaintiff will be given leave to move for further

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production.

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C.

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POD Nos. 22 and 23

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Requests: “Produce a copy of every document that provides the fees and

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costs associated with transferring an inmate from the prison to be examined by a doctor

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outside the prison.”

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and

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“Produce a copy of every document that provides the fees and costs

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associated with transferring Plaintiff Perry C. Butler from the prison to be examined by a

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doctor outside the prison in August 2010.”
Responses: Defendant Onyeje does not have any documents responsive

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to these request.
Ruling: Plaintiff’s motion to compel is denied. The Court cannot order a

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party to produce that which does not exist.

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III.

Motion for Sanctions

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Plaintiff seeks the imposition of sanctions for Defendant Onyeje’s “failure to make

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disclosures or to cooperate in discovery.” (Mot. at 1.) Though the Court found Defendant’s

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original responses to be evasive and non-productive, Defendant’s voluntary supplemental

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production reflects an absence of the bad faith prerequisite to an award of sanctions by

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this Court. Roadway Express, Inc. v. Piper, 447 U.S. 752, 767 (1980); Miller v. City of Los

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Angeles, 661 F.3d 1024, 1036 (9th Cir. 2011); Gomez v. Vernon, 255 F.3d 1118, 1134 (9th

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Cir. 2001); Fink v. Gomez, 239 F.3d 989, 993-94 (9th Cir. 2001).

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IV.

Order

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Based on the foregoing, Plaintiff’s motion to compel, filed on November 26, 2012,

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is partially GRANTED, and Plaintiff’s motion for sanctions, filed November 26, 2012 is

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DENIED.

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IT IS SO ORDERED.

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Dated:

September 30, 2013

/s/

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Michael J. Seng

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il0i0d

UNITED STATES MAGISTRATE JUDGE

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