Rapalo v. Lopez, et al.

Filing 43

ORDER Denying Plaintiff's 36 Motion to Compel Production of Documents signed by Magistrate Judge Barbara A. McAuliffe on 11/07/2014. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WALTER RAPALO,

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Plaintiff,

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v.

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S. LOPEZ, et al.,

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Defendants.

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Case No.: 1:11-cv-01695-LJO-BAM PC
ORDER DENYING PLAINTIFF’S MOTION TO
COMPEL PRODUCTION OF DOCUMENTS
(ECF No. 36)

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I.

Introduction

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Plaintiff Walter Rapalo (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds against Defendants

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Lopez, Schaffer and Manasrah for deliberate indifference to serious medical needs in violation of the

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Eighth Amendment to the United States Constitution.
Currently pending before the Court is Plaintiff’s motion, filed on September 24, 2014, seeking

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to compel Defendants’ production of documents. (ECF No. 36.) Defendants opposed the motion on

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October 7, 2014. (ECF No. 37.) Plaintiff did not file a timely response and the motion is deemed

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submitted. Local Rule 230(l).

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II.

Motion to Compel Responses to Requests for Production of Documents
A. Standard

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

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permit the requesting party or its representative to inspect, copy, test, or sample the following items in

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the responding party’s possession, custody or control: any designated documents or tangible things.

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Fed. R. Civ. P. 34(a)(1). “Property is deemed within a party’s ‘possession, custody, or control’ if the

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party has actual possession, custody, or control thereof or the legal right to obtain the property on

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demand.” Allen v. Woodford, 2007 WL 309945, at *2 (E.D. Cal. Jan. 30, 2007) (citing In re Bankers

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Trust Co., 61 F.3d 465, 469 (6th Cir. 1995)); accord Bovarie v. Schwarzenegger, 2011 WL 719206, at

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*4 (S.D. Cal. Feb. 22, 2011); Evans v. Tilton, 2010 WL 1136216, at *1 (E.D. Cal. Mar. 19, 2010).
In responding to discovery requests, a reasonable inquiry must be made, and if no responsive

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documents or tangible things exist, Fed. R. Civ. P. 26(g)(1), the responding party should so state with

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sufficient specificity to allow the Court to determine whether the party made a reasonable inquiry and

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exercised due diligence, Uribe v. McKesson, 2010 WL 892093, at *2 (E.D. Cal. Mar. 9, 2010). If

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responsive documents do exist but the responsive party claims lack of possession, control, or custody,

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the party must so state with sufficient specificity to allow the Court (1) to conclude that the responses

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were made after a case-specific evaluation and (2) to evaluate the merit of that response. Ochotorena

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v. Adams, 2010 WL 1035774, at *3-4 (E.D. Cal. Mar. 19, 2010). As with other forms of discovery,

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boilerplate objections do not suffice. Fed. R. Civ. P. 34(b)(2)(B), (C).

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B. Discussion

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On April 23, 2014, Plaintiff served defendants with a First Request for Production of

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Documents (“POD”). (ECF No. 37, Ex. A.) Defendants responded on June 19, 2014. (ECF No. 37,

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Ex. B.) Plaintiff now seeks further responses to requests 6, 7, 8, and 12, along with continued

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compliance with requests 1-5, 9, and 10.

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POD 6: All medical operating procedures in place at Kern Valley State Prison while Plaintiff

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was confined there, between January 2009 through February 2012. This is to include all official and

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non official/non-published medical operating procedures, including but not limited to any

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“underground rules”; non-published but written directives in the form of memo, e-mail, etc.,
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concerning policies either granting or denying surgeries; and any document that states a policy,

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directive, or suggestion that certain surgeries are to be denied or granted based on financial

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considerations or any other non-medical rationale.

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Response: Defendants are presently unaware of any such responsive documents. However,

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discovery is continuing and defendants reserve the right to amend this response[] as further

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information becomes available.

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Ruling: Plaintiff’s motion to compel is denied.

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Plaintiff’s request is overbroad and is not appropriately narrow as to the type of medical

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procedure or surgery for which he seeks the production of documents. Defendants were forced to

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limit the scope of the request to surgeries (versus operational procedures) and have indicated that no

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responsive documents are known to exist. Defendants cannot be compelled to produce documents that

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do not exist.

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Defendants have further indicated that any general CDCR medical procedures are available for

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prisoners to review. Defendants cannot be compelled to produce documents that are equally available

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to Plaintiff. Fed. R. Civ. P. 26(b)(2)(C)(i) (court must limit the extent of discovery allowed if it

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determines that the discovery sought can be obtained from some other source that is more convenient,

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less burdensome, or less expensive).

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Additionally, Defendants have stated their willingness to participate in a meet and confer

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process with Plaintiff if he wishes to clarify what he seeks through discovery. Plaintiff may want to

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engage in such efforts to narrow the scope of POD 6.

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As a final matter, Defendants have acknowledged their continuing obligation to supplement
their discovery responses. See Fed. R. Civ. P. 26(e)(1).
POD 7: All medical operating procedures from the Office of the Chief Medical Officer at

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Kern Valley State Prison between January 2009 through February 2012, including but not limited to

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any document that aided or played a part in Chief Medical Officer S. Lopez making decisions

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concerning the granting or denial of surgeries.

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Response: Defendants are presently unaware of any such responsive documents. However,

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discovery is continuing and defendants reserve the right to amend this response[] as further

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information becomes available.

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Ruling: Plaintiff’s motion to compel is denied.

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Plaintiff’s request is overbroad and is not narrowly tailored as to any specific surgical

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procedure. Defendants have indicated that no responsive documents are known to exist. However,

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Defendants also have indicated that any documents that aided or played a part in Chief Medical

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Officer S. Lopez making decisions concerning the granting or denial of surgeries would be contained

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in Plaintiff’s medical files and that a copy of Plaintiff’s medical records was provided to him.

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Defendants cannot be compelled to provide responsive documents that do not exist or that have

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already been produced.

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Defendants have further indicated that any general CDCR medical procedures are available for

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prisoners to review. Defendants cannot be compelled to produce documents that are equally available

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to Plaintiff. Fed. R. Civ. P. 26(b)(2)(C)(i) (court must limit the extent of discovery allowed if it

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determines that the discovery sought can be obtained from some other source that is more convenient,

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less burdensome, or less expensive).

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As with POD 6, Plaintiff may wish to engage in meet and confer efforts with Defendants to
narrow the scope of POD 7.

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POD 8: All policy directives or suggestions coming from the Office of the Chief Medical

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Officer at Kern Valley State Prison between January 2009 through February 2012 to medical staff

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concerning granting, denying or delaying surgery to inmates. This is to include any notes, memos, e-

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mails, faxes, etc.

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Response: Defendants are presently unaware of any such responsive documents. However,

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discovery is continuing and defendants reserve the right to amend this response[] as further

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information becomes available.

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Ruling: Plaintiff’s motion to compel is denied.

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Defendants have indicated that if Plaintiff is requesting documents relating to individual

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inmates, he would not be entitled to those. Defendants are correct. Documents related to specific
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inmates other than Plaintiff are not relevant to any grant or denial of surgery to Plaintiff and are not

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discoverable. As Defendants have indicated that documents relating to denying surgery for Plaintiff

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have been provided in his medical records, Defendants cannot be compelled to produce additional

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documents that do not exist.

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POD 12: A list of the number of inmate requests for back surgery at Kern Valley State Prison

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between 2007 to 2013 and the number of grants and denials. Separately, the number of those requests

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that were denied that had a doctor’s recommendation for surgery.
Response: Defendants object to this request as it is overbroad, burdensome and irrelevant and

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not likely to lead to the discover[y] of relevant or admissible evidence. Defendants further object on

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the grounds that the request seeks disclosure of confidential medical information of persons who are

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not parties to this lawsuit. Defendants further object on the grounds this request seeks a compilation

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of data and is not a request for documents.

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Ruling: Plaintiff’s motion to compel is denied.

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This request is overbroad, burdensome and will result of the production of information that is

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not relevant to any claim or defense. Further, the request seeks a compilation of data, which

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Defendants are not obligated to create in response to a document request. Rule 34 requires parties to

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produce documents that already exist, but it does not require parties to create new data. Paramount

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Pictures Corp. v. Replay TV, 2002 WL 32151632, *2 (C.D. Cal. May 20, 2002). Here, there is no

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indication that the information already exists in a readily accessible form. Instead, it would require

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CDCR to compile data by reviewing medical records of individual inmates.

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PODs 1-5, 9, and 10: Plaintiff requests continued compliance with these requests for

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production of documents. As noted above, the Federal Rules of Civil Procedure impose a continuing

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obligation on the parties to supplement their discovery responses if they learn that a response is

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incomplete or incorrect. Fed. R. Civ. P. 26(e)(1)(A). Accordingly, the Court need not address

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Plaintiff’s requests 1-5, 9 and 10 at this time. Further, Defendants have expressed their willingness to

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participate in a meet and confer process with Plaintiff if he wishes to clarify what he seeks through

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discovery.

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III.

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For the reasons stated, Plaintiff’s motion to compel the production of documents, filed on

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Conclusion and Order

September 24, 2014, is HEREBY DENIED.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

November 7, 2014

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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