Dasenbrock v. Kings County et al

Filing 158

ORDER Denying Plaintiff's Motion To Compel (ECF Nos. 132 , 134 ), signed by Magistrate Judge Dennis L. Beck on 1/26/2016. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBIN DASENBROOK,

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Plaintiff,

Case No. 1:11-cv-01884 DAD DLB PC
ORDER DENYING PLAINTIFF’S MOTIONS
TO COMPEL

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v.

[ECF Nos. 132, 134]

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A. ENENMOH, et al.,
Defendants.

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Plaintiff Robin Dasenbrook (“Plaintiff”) is a California state prisoner proceeding pro se and

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in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. This action is proceeding on

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Plaintiff’s Second Amended Complaint, filed September 8, 2015, against Defendants Enenmoh,

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Page, Perez and Adair on claims of negligence and deliberate indifference to a serious medical need

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in violation of the Eighth Amendment.

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On November 29, 2012, Plaintiff filed a First Amended Complaint. On September 10, 2013,

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Defendant Enenmoh filed an answer. On September 11, 2013, the Court issued a discovery and

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scheduling order. The discovery cut-off date was set for February 10, 2014, and the dispositive

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motion deadline was set for April 9, 2014. Plaintiff served discovery requests on Defendant

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Enenmoh, and he also served discovery requests on Defendant Page even though she had not yet

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answered the complaint. On March 7, 2014, after the discovery cut-off date, Defendant Page filed

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an answer to the amended complaint.

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Subsequently, Plaintiff filed numerous discovery requests and various motions. On
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September 17, 2014, and October 15, 2014, the Court addressed Plaintiff’s various discovery

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requests and motions. Discovery was reopened as to Defendant Page, and the deadline for discovery

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as to Page was extended ninety days from the date of service of the October 15, 2014, order.

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On March 13, 2015, Plaintiff filed a motion for a court order compelling Defendants Page

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and Perez-Hernandez to respond to Plaintiff’s Requests for Admissions, Interrogatories, and

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Production of Documents. Plaintiff stated he had served the above discovery requests on Defendants

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Page and Perez-Hernandez; however, Defendants did not respond. Defendants stated they did not

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receive said discovery requests. Defendants did not file an opposition to the motion.

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As to Defendant Page, the Court granted Plaintiff’s motion to compel on October 15, 2014,

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and directed Defendants to supplement their responses as set forth in the Court’s Order within thirty

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days. [ECF No. 98.] On April 24, 2015, Defendant Page was ordered to show cause why sanctions

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should not be imposed for failure to supplement Defendants’ discovery responses as ordered by the

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Court on October 15, 2014.

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On May 26, 2015, Defendant Page responded to the order to show cause. On May 29, 2015,

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the Court discharged the motion to compel. Defendant Page was granted an extension of time to

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serve her discovery responses. After discovery was re-opened as to Defendant Page, Plaintiff re-

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issued one comprehensive set of Interrogatories, Requests for Admission, and Request for

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Production of Documents. According to Defendant Page, on June 26, 2015, she served responses to

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Interrogatories 1-23, Requests for Admission 1-57, and Request for Production of Documents.

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On August 14, 2015, Plaintiff filed a motion to compel Defendant Page to respond to his

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Request for Production of Documents. On August 19, 2015, Plaintiff filed a motion to compel

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Defendant Page to respond to Interrogatory 24 and Request for Admissions 58-100. On August 20,

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2015, Defendant Page responded to Request for Admissions 58-100. On October 8, 2015,

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Defendant Page filed Oppositions to Plaintiff’s Motions to Compel. Plaintiff filed a Reply to

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Defendant’s Oppositions on November 2, 2015.

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LEGAL STANDARD

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

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party’s claim or defense, and for good cause, the Court may order discovery of any matter relevant
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to the subject matter involved in the action. Fed. R. Civ. P. 26(b)(1) (quotation marks omitted).

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Relevant information need not be admissible at the trial if the discovery appears reasonably

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calculated to lead to the discovery of admissible evidence. Id. (quotation marks omitted).

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Generally, if the responding party objects to a discovery request, the party moving to compel bears

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the burden of demonstrating why the objections are not justified. See, e.g., Grabek v. Dickinson,

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2012 WL 113799, at *1 (E.D. Cal. 2012). 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 response, why the

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information sought is relevant and why the responding party’s objections are not meritorious. Id., at

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*1.

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However, the Court is vested with broad discretion to manage discovery and notwithstanding

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these procedures, Plaintiff is entitled to leniency as a pro se litigator. Therefore, to the extent

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possible, the Court endeavors to resolve the motion to compel on its merits. Hunt v. County of

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Orange, 672 F.3d 606, 616 (9th Cir. 2012); Surfvivor Media, Inc. v. Survivor Productions, 406 F.3d

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625, 635 (9th Cir. 2005); Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002).

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DISCUSSION

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I.

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No. 132]

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Motion to Compel Further Responses to Request for Production of Documents [ECF

On August 14, 2015, Plaintiff moved to compel Defendant Page to submit further responses

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to his Request for Production of Documents (“RPD”). Plaintiff states Defendant Page failed to

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respond sufficiently to RPD Nos. 1, 3, 5-8, 10-13, 15-22, 24, 27-31, 33-36. Plaintiff states he

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received documents in response to only 3 out of the 36 requests sent. Plaintiff states he contacted

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Defendant’s counsel in an effort to secure further responses to the evasive and incomplete responses

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already served. Defendant Page contends her response was adequate.

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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

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

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things. Fed. R. Civ. P. 34(a)(1) (quotation marks omitted). “Property is deemed within a party’s

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‘possession, custody, or control’ if the party has actual possession, custody, or control thereof or the
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legal right to obtain the property on demand.” Allen v. Woodford, No. CV-F-05-1104 OWW LJO,

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2007 WL 309945, *2 (E.D. Cal. Jan. 30, 2007) (citing In re Bankers Trust Co., 61 F.3d 465, 469 (6th

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Cir. 1995)); accord Bovarie v. Schwarzenegger, No. 08cv1661 LAB (NLS), 2011 WL 719206, at *4

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(S.D. Cal. Feb. 22, 2011); Evans v. Tilton, No. 1:07CV01814 DLB PC, 2010 WL 1136216, at *1

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(E.D. Cal. Mar. 19, 2010).

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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

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

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inquiry and exercised due diligence, Uribe v. McKesson, No. 08cv1285 DMS (NLS), 2010 WL

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892093, at *2-3 (E.D. Cal. Mar. 9, 2010). If responsive documents do exist but the responsive party

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claims lack of possession, control, or custody, the party must so state with sufficient specificity to

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allow the Court (1) to conclude that the responses were made after a case-specific evaluation and (2)

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to evaluate the merit of that response. Ochotorena v. Adams, No. 1:05-cv-01525-LJO-DLB (PC),

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2010 WL 1035774, at *3-4 (E.D. Cal. Mar. 19, 2010). Boilerplate objections do not suffice. Fed. R.

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Civ. P. 34(b)(2)(B), (C); Burlington N. & Santa Fe Ry. Co., 408 F.3d at 1149. The Court now turns

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to Plaintiff’s request for production of documents.

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RPD No. 1: “Provide copies of any and all documents Defendant Page was required to sign

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per protocol page 1-8-3 Implementation and Review of Health Care Policies and Procedures Manual

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(P & P Manual) that applies to her and understands them (“Employees are required to sign

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documentation that they have read the Policies and Procedures and understand them.”).”

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Response: “Documents responsive to this request are being provided as Attachment 1.”

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Argument: Plaintiff alleges that “[n]o documents were provided showing Defendant Page’s

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signature stated she has read the HCSD Policies and Procedures Manual, and understands them

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which is required per Protocol Page 1-8-3.” Defendant states she attached responsive documents as

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Attachment “A.” Defendant argues that to the extent Plaintiff contends that no responsive

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documents have been produced or that other responsive documents exist, then Defendant has none,

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and she is not the custodian of any such records.

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Ruling: Plaintiff’s request is denied. Plaintiff fails to demonstrate that Defendant Page’s
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response that she does not have any responsive documents in her possession, custody, or control or

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accessible beyond that which she has already produced is not meritorious.

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RPD No. 3: “Provide any and all case study and analysis, written examinations and/or return

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demonstrations documenting Defendant Page’s ongoing evaluation pertaining to protocol page 5-61-

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5 III, E. Cardiovascular system, chest pain, health care services. (The Registered Nurse shall ...

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“achieve a minimum score of 80% on the written posttest examination”).”

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Response: “Documents responsive to this request are being provided in Attachment 1.”

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Argument: Plaintiff states he asked for any and all case study analysis and written examinations

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but none were provided. Defendant responds that to the extent Plaintiff contends that no responsive

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documents have been produced or that other responsive documents exist, then Defendant has no such

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documents, and she is not the custodian of any such records.

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Ruling: Plaintiff’s request is denied. Plaintiff fails to demonstrate that Defendant Page’s

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response that she does not have any responsive documents in her possession, custody, or control or

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accessible beyond that which she has already produced is not meritorious.

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RPD No. 5: “Provide copies of any and all Emergency Care Flow Sheets Defendant Page

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filled out on 2-2-10 when you saw the Plaintiff at your RN (Registered Nurse) line as it states on

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page 5-6a-4 III. G. Cardiovascular system-chest pain, Health Care Services, I.e., “all information

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related to the patient’s complaint shall be documented on the Emergency Care Flow Sheet”. (This

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information is not in the Plaintiff’s Unit Health Record that the Plaintiff could find).”

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Response: Documents responsive to this request, if they exist, were previously provided to
Plaintiff, and would be included in the 582 pages of medical records served on October 29, 2013.

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Argument: Plaintiff contends: “You failed to provide any Emergency Care Flow sheets

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Defendant Page filled out on 2-2-10 and 2-12-10 per Protocol 5-6a-4 ‘all information related to patients

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complaints shall be documented on the Emergency Care flow sheet.’ It was not in the 582 pages of

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medical records and I am willing to send the Court all 582 pages if it so wishes.”

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Ruling: Plaintiff’s request is denied. Plaintiff fails to demonstrate that Defendant Page’s

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response that she does not have any responsive documents in her possession, custody, or control or

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accessible beyond that which she has already produced in the 582 pages of medical records is not

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meritorious.

RPD No. 6: “Provide a copy of any lists or documents that Defendant Page is authorized to

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perform the assessment and treatment of patients presenting with gastrointestinal system, gastrointestinal

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bleeding, Health Care Services, page 5-8b-2 that shall be ‘maintained on file in the office of the Director

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of Nursing’.”

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Response: “Documents responsive to this request are being provided as Attachment 1.”

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Argument: Plaintiff states that no documents or lists were provided that are maintained on file

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in the office of the Director of Nursing showing Defendant Page is authorized to perform the assessment

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and treatment of the Gastrointestinal system/Gastrointestinal bleeding. Defendant states she is not in

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possession or custody of the documents. And to the extent they can be obtained from the Office of the

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Director of Nursing, Plaintiff may also obtain them by use of a subpoena.

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Ruling: Plaintiff’s request is denied. Defendant states that the documents are not in Defendant’s

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possession, but Plaintiff may obtain them by use of subpoena. Accordingly, by separate order the Court

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will grant Plaintiff’s motion for subpoena duces tecum concerning this request.

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RPD No. 7: “Provide any and all case study analysis, written examinations and/or return

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demonstrations documenting Defendant Page’s ongoing evaluation pertaining to Protocol page 5-8h-2

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gastrointestinal system, gastrointestinal bleeding, Health Care services (the Registered Nurse shall . . .

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Achieve a minimum score of 80% on the written posttest examination.)”

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Response: “Documents responsive to this request are being provided as Attachment 1.”

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Argument: Plaintiff states that Defendant failed to provide any case study analysis, written

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examination and or return demonstrations documenting Defendant Page’s ongoing evaluation relating to

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Protocol 5-8b-2, and in fact, no written examination were provided. Defendant responds that to the

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extent Plaintiff contends that no responsive documents have been produced or that other responsive

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documents exist, then Defendant has no such documents, and she is not the custodian of any such

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records.

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Ruling: Plaintiff’s request is denied. Plaintiff fails to demonstrate that Defendant Page’s

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response that she does not have any responsive documents in her possession, custody, or control or

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accessible beyond that which she has already produced is not meritorious.

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RPD No. 8: “Provide documentation Defendant Page completed a “Flow Sheet” Gastrointestinal

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Bleeding” she was require complete when she saw the Plaintiff on 2-12-10 at her RN line (or provide a

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copy of said flow sheet) when the Plaintiff complained of rectal bleeding, of being anemic, and she told

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the Plaintiff he had HIN (Hypertension) history”.

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Response: “Documents responsive to this request, if they exist, were previously provided to
Plaintiff, and would be included in the 582 pages of medical records served on October 29, 2013.”
Argument: Plaintiff contends: “No documentation was provided showing Defendant page

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completed a Flow Sheet: Gastrointestinal Bleeding – she was required to complete on 2-12-10. It was not

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in the 582 pages sent, and Plaintiff will send these to the Court if so required.”

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Ruling: Plaintiff’s request is denied. Plaintiff fails to demonstrate that Defendant Page’s

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response that she does not have any responsive documents in her possession, custody, or control or

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accessible beyond that which she has already produced in the 582 pages of medical records is not

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meritorious.

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RPD No. 10: “Provide a copy of any list or documents that Defendant page is authorized to

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perform the assessment and treatment of patients presenting with rectal peri-anal complaints,

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gastrointestinal system, Health Care Services that per page 5-8c-3” shall be maintained on file in the

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office of the Director of Nursing”.”

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Response: “Documents responsive to this request are being provided as Attachment 1.”

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Argument: Plaintiff states that Defendant Page did not provide any document showing

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Defendant is authorized to perform the assessment or treatment of patients presenting rectal peri-anal

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complaints from the files maintained in the office of the Director of Nursing. Defendant states she is

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not in possession or custody of the documents.

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Ruling: Plaintiff’s request is denied. Plaintiff fails to demonstrate that Defendant Page’s

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response that she does not have any responsive documents in her possession, custody, or control or

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accessible beyond that which she has already produced is not meritorious.

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RPD No. 11: “Provide any and all case study analysis, written examinations and or return

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demonstrations documenting Defendant Page’s ongoing evaluation pertaining to rectal peri-anal

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complaints, gastrointestinal system, Health Care Services (The Registered Nurse shall . . . achieve a

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minimum score of 80% on the written posttest examination” – per pages 5-8c-3 of said protocols).”

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Response: “Documents responsive to this request are being provided as Attachment 1.”

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Argument: Plaintiff states that Defendant Page did not provide any case study analysis,

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written examinations and/or return demonstrations documenting Page’s ongoing evaluations pertaining

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to rectal peri-anal complaints, and in fact, no written posttest examination of any kind were provided.

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Defendant states she is not in possession or custody of the documents.

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Ruling: Plaintiff’s request is denied. Plaintiff fails to demonstrate that Defendant Page’s

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response that she does not have any responsive documents in her possession, custody, or control or

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accessible beyond that which she has already produced is not meritorious.

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RPD No. 12: “Provide any and all documents regarding your initial evaluation that state or show

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that you have satisfactorily demonstrated all criteria behaviors identified on the competency validation

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tool and are considered competent to perform standardized functions for the rectal peri-anal complaints,

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gastrointestinal system, Health Care Services, protocols.”.

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Response: “Documents responsive to this request are being provided as Attachment 1.”

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Argument: Plaintiff states that no documents were provided regarding Defendant Page’s initial

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evaluation that state or show she has satisfactorily demonstrated all criteria behaviors identified on the

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competency validation tool, and Defendant Page’s competency is the main focus of this case. Defendant

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states she is not in possession or custody of the documents.

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Ruling: Plaintiff’s request is denied. Plaintiff fails to demonstrate that Defendant Page’s

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response that she does not have any responsive documents in her possession, custody, or control or

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accessible beyond that which she has already produced is not meritorious.

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Request No. 13: “Provide any and all written performance appraisals that “shall be performed by

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the Supervision Registered Nurse or designee six months after initial competence has been validated for

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Defendant Page on the following Health Care Services Protocol functions:

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a) Cardiovascular system: Chest Pain, HCS, page 5-6a-3

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b) Gastrointestinal system, gastrointestinal bleeding, HCS page 5-8c-3

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c) Gastrointestinal system rectal peri-anal complaints, HCS 5-8c-3

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d) Cardiovascular chronic care program, chapter 2, HCS Page 7-2-3

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e) CPHCS and/or CCHCS (Calif. Correctional Health Care Service care guides)”

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Response: “Documents responsive to this request are being provided as Attachment 1.”

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Argument: Plaintiff states that Defendant Page failed to provide any and all documents

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regarding Page’s written performance appraisals that shall be performed by the Supervising Registered

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Nurse for Numbers b, c, d, and e. Defendant states she is not in possession or custody of the documents.

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Ruling: Plaintiff’s request is denied. Plaintiff fails to demonstrate that Defendant Page’s

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response that she does not have any responsive documents in her possession, custody, or control or

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eaccessible beyond that which she has already produced is not meritorious.

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RPD No. 15: “Provide any and all documentation that Defendant Page is familiar with the

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cardiovascular chronic care program, chapter 2, Health Care Services (HCS) protocols and/or the

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functions that pertain to the Nurse concerning this protocol.”

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Response: “Documents responsive to this request are being provided as Attachment 1.”

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Argument: Plaintiff states Defendant Page failed to provide documentation that she is familiar

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with the cardiovascular (cv) chronic care program, and/or the functions that pertain to her concerning this

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protocol. Defendant states she is not in possession or custody of the documents.

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Ruling: Plaintiff’s request is denied. Plaintiff fails to demonstrate that Defendant Page’s

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response that she does not have any responsive documents in her possession, custody, or control or

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accessible beyond that which she has already produced is not meritorious.

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RPD No. 16: “Provide any and all documents that show Defendant Page is authorized to

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perform the assessment or treatment of patients presenting cardiovascular diseases (or symptoms listed

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on page 7-2-1 of the cardiovascular chronic care program) as the Plaintiff did on 2-12-10 where RN Page

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listed HTN (HTN is hypertension – which is listed as one of the diagnosed diseases on said Health Care

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Services Protocol).”

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Response: “Documents responsive to this request are being provided as Attachment 1.”

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Argument: Plaintiff argues that Defendant failed to provide documents that shows Page is

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authorized to perform the assessment and treatment of patients presenting with cardiovascular disease (or

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symptoms listed) on page 7-2-1 of the cv chronic care program. Defendant states she is not in possession

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or custody of the documents.

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Ruling: Plaintiff’s request is denied. Plaintiff fails to demonstrate that Defendant Page’s

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response that she does not have any responsive documents in her possession, custody, or control or

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accessible beyond that which she has already produced is not meritorious.

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RPD No. 17: “Provide any and all documents that list the responsibilities an RN (Registered

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Nurse) has which are crucial to the management of cardiovascular disease that pertains to Defendant

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Page’s d he [sic] cardiovascular chronic care program, Health Care Services (page 7-2-3 protocols).”

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Response: “There are no documents responsive to this request.”

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Argument: Plaintiff argues that no document was provided even though it exists, and in fact

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Protocol 7-2-3 lists some of the responsibilities an RN has which are crucial to the management of cv

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disease. Defendant maintains that no such documents exist.
Ruling: Plaintiff’s request is denied. Plaintiff fails to demonstrate that Defendant Page’s
response that no such documents exist is not meritorious.

RPD No. 18: “Provide some form of documentation that on 2-2-10 while conducting your RN

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line with the Plaintiff for triage, you recorded or documented a Nurse Encounter form per protocol page

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4-4-3,C.3, Access to primary care, chapter 4, Health Care Services (“The Rn shall document on the

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CDCR Form 7362 that a Nurse Encounter Form has been completed”). This encounter form is not in the

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Plaintiff’s Unit Health Record that he could find.”

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Response: “Documents responsive to this request, if they exist, were previously provided to
Plaintiff and would be included in the 582 pages of medical records served on October 29, 2013.”

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Argument: Plaintiff argues that there is no documentation that Defendant Page, while

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conducting a triage line with the Plaintiff on February 2, 2010, recorded or documented a Nurse

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Encounter Form. This document was not in the Plaintiff’s Unit Health Record nor provided in the 582

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pages of medical records served on October 29, 2013, nor was there documentation on the CDCR Form

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7362 that a Nurse Encounter Form had been completed. Defendant contends she is not in possession,

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custody or control of any responsive documents.

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Ruling: Plaintiff’s request is denied. Plaintiff fails to demonstrate that Defendant Page’s

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response that she does not have any responsive documents in her possession, custody, or control or

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accessible beyond that which she has already produced in the 582 pages of medical records is not

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meritorious.

RPD No. 19: “Provide any and all documents that show Defendant Page documented a

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physician’s referral for the Plaintiff during RN Page’s initial triage on 2-12-10 since Page is claiming she

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did so (See ‘Access to Primary Care, chapter 4 page 4-4-3.C.5 “If the Rn determines that physician

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referral is necessary, the RN shall document the referral on the CDCR Form 7362 and shall indicate the

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time frame in which the inmate-patient shall be seen by the physician”)while the 7362 form 2-12-10 was

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provided, there is no documentation of any physicians referral on it, so how did Defendant Page

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“Document the referral”? Provide the documentation).”

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Response: “After a diligent search by medical staff at CSATF, no documents responsive to this

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request could be located. However, a referral was made, and Plaintiff’s medical records indicate he was

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seen for his scheduled appointment on February 18, 2010. The relevant medical records were previously

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provided to Plaintiff in the 582 pages of medical records served on October 29, 2013.”

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Argument: Plaintiff argues that no documentation was provided showing Defendant Page

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documented a physician’s referral for the Plaintiff during her February 12, 2010, triage line. Plaintiff

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argues that while Defendant states no documents responsive to this request could be located, Defendant

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cannot thereafter claim a referral was made by Defendant Page without providing said document.

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Plaintiff argues that the document is not in the 582 pages sent. Defendant contends she is not in

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possession, custody or control of any responsive documents.

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Ruling: Plaintiff’s request is denied. Plaintiff fails to demonstrate that Defendant Page’s

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response that she does not have any responsive documents in her possession, custody, or control or

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accessible beyond that which she has already produced in the 582 pages of medical records is not

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meritorious.

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RPD No. 20: “Provide any and all documentation on a document that Plaintiff was scheduled to

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see a physician for the earliest possible appointment when Defendant Page saw the Plaintiff on 2-2-10

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and 2-12-10 for her triage/RN line. This document is not in the Plaintiff’s Unit Health Record (See –

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Access to Primary Care, chapter 4, Health Care Services, page 4-4-3 III C.7. “Inmate-Patients shall be

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scheduled to see the PCP for the earliest possible appointment if: (1) the inmate-patient was ducated to

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see the RN and a medical complaint or treatment is not within the Rn’s scope of the practice”. .)”

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Response: “There are no documents responsive to this request.”

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Argument: Plaintiff argues that no document was provided showing the Plaintiff was

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scheduled to see a physician for the earliest possible appointment when Defendant Page saw the Plaintiff

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during her 2-2-10 and 2-12-10 RN lines. Plaintiff contends that this document does exist per Protocol 4-

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4-3 C.3 – Nurse encounter forms and CDCR 7362 Forms have spaces that show the documenting of a

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physician referral time scheduling. Defendant counters that she does not possess a document responsive

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to this request, and Plaintiff’s request would require the submission of a blank form.

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Ruling: Plaintiff’s request is denied. Plaintiff fails to demonstrate that Defendant Page’s
response that she does not have any responsive documents in her possession, custody, or control or

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accessible. While protocol may require the creation of such a document for a nurse encounter, this does

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not undermine Defendant’s statement that after a diligent search she could not locate such a document.

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RPD No. 21: “Provide any and all documents that Defendant Page, a Registered Nurse, has

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demonstrated . . . “The knowledge, ability and skill required to achieve a level of competency and

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performance that meets expected standards. “ (As listed on the HCS, Protocols, competency testing,

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chapter 4, page 5-4-1, I. Policy) (If her conduct must be commensurate with community standards, and

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the HCS Protocols, require this, provide documentation that her actions on 2-2-10 and 2-12-10 met

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expected standards and that her knowledge, ability, and skill were demonstrated.).”

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Response: “Documents responsive to this request are being provided as Attachment 1.”

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Argument: Plaintiff argues that Defendant did not provide any documentation in Attachment 1

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that Defendant Page’s action’s on 2-2-10 and 2-12-10 met community standards or that her knowledge,

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ability or skill were demonstrated. Plaintiff alleges that these items are listed in the HCS Protocols for

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competency testing. Defendant argues that to the extent Plaintiff contends that no responsive

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documents have been produced or that other responsive documents exist, then Defendant has none,

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and she is not the custodian of any such records.

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Ruling: Plaintiff’s request is denied. Plaintiff fails to demonstrate that Defendant Page’s

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response that she does not have any responsive documents in her possession, custody, or control or

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accessible beyond that which she has already produced is not meritorious.

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RPD No. 22: “Provide any and all documentation Defendant Page is competent in the
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performance of the nursing protocols used at S.A.T.F. Corcoran prison where she works as so stated in

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the HCS Protocols, competency testing, page 5-4-1, III, Procedure “A competency assessment program

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shall be included in the nursing services programs to test the skill of nursing staff, at least quarterly or as

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evidenced by need, to facilitate competency in the performance of the nursing protocols”.”

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Response: “Documents responsive to this request are being provided as Attachment 1.”

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Argument: Plaintiff argues that Defendant did not provide documentation that Defendant Page

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is competent in the performance of the nursing protocols used at S.A.T.F. Corcoran Prison. Plaintiff

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notes that a Competency Assessment program shall be included in the nursing services program to test

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the skill of nursing staff. Plaintiff asks why didn’t Defendant provide these quarterly assessments for the

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year 2010? Defendant argues that to the extent Plaintiff contends that no responsive documents have

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been produced or that other responsive documents exist, then Defendant has none, and she is not the

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custodian of any such records.

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Ruling: Plaintiff’s request is denied. Plaintiff fails to demonstrate that Defendant Page’s

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response that she does not have any responsive documents in her possession, custody, or control or

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accessible beyond that which she has already produced is not meritorious.

16

RPD No. 24: “Provide any and all documents like written tests taken/completed by Defendant

17

Page that was [sic] used to evaluate Page’s “Competent Employee Performance” which is assessed or

18

evaluated by one or more of the following: written test. As shown on page 5-4-2, HCS competency

19

testing II. (which shall be documented in the employee file or staff development training file).”

20

Response: “There are no documents responsive to this request.”

21

Argument: Plaintiff argues that Defendant failed to provide any written tests taken by

22

Defendant Page that were used to evaluate Page’s “Competent Employee Performance.” Plaintiff argues

23

that these documents do exist and are located in her employee file or staff development training file.

24

Defendant argues that she has responded that she has no responsive documents and that Plaintiff

25

speculates that such documents do exist.

26

Ruling: Plaintiff’s request is denied. Plaintiff fails to demonstrate that Defendant Page’s

27

response that she does not have any responsive documents in her possession, custody, or control or

28

accessible beyond that which she has already produced is not meritorious.
13

1
2

RPD No. 27: “Provide any and all documentation Defendant Page was, or is, a member of the
American Nurses Association.”

3

Response: “Responding party objects to this request on the grounds that it seeks documentation

4

that is immaterial in that it has no bearing on the subject matter of this case, is not reasonable calculated

5

to lead to discovery of admissible evidence, and invades the privacy of Defendant.”

6

Argument: Plaintiff argues that Defendant failed to provide documentation that she is or was

7

a member of the American Nurses Association (ANA). Plaintiff argues that this information is a

8

matter of public record and does not invade the privacy of Defendant. Plaintiff states he is

9

attempting to show that Page violated the published professional standards of care delineated by the

10

ANA, CDCR Protocols, and the Business and Professional Code Section 2725 and 2038. Plaintiff

11

states that the ANA is responsible for defining the scope and standards of generic nursing practice.

12

Plaintiff claims Defendant Page’s actions directly violated ANA Policy, which shows she did not

13

provide the standard of care required. Plaintiff claims Page has an ethical commitment that must not be

14

compromised. Plaintiff alleges the document is not immaterial, does have bearing on the subject matter

15

of this case, and is reasonable calculated to lead to the discovery of admissible evidence.

16

Defendant counters that whether or not Page is a member of the American Nurses

17

Association is beyond the scope of discovery. Defendant argues that regardless of what Association

18

a nurse or physician might be a member of, the same standards of care apply as would apply to a

19

non-member. Defendant states that membership in an association does not create a different and

20

distinct standard of care for a health care provider. Defendant notes that according to CACI 501, the

21

Standard of Care for a Health Care Professional is determined as follows:

26

“[A/An] [insert type of medical practitioner] is negligent if [he/she] fails to use the
level of skill, knowledge, and care in diagnosis and treatment that other reasonably
careful [insert type of medical practitioners] would use in the same or similar
circumstances. This level of skill, knowledge, and care is sometimes referred to as
‘the standard of care.’ [You must determine the level of skill, knowledge, and care
that other reasonably careful [insert type of medical practitioners] would use in the
same or similar circumstances, based only on the testimony of the expert witnesses
[including [name of defendant ]] who have testified in this case.]” (Emphasis
Supplied.)

27

Ruling: Plaintiff’s request is denied. The document is irrelevant in that Defendant owes

22
23
24
25

28

Plaintiff the same standard of care regardless of which association she belongs.
14

1
2

RPD No. 28: “Provide any documents showing Defendant Page is familiar with the ‘scope and
standards of nursing practice in correctional facilities.’”

3

Response: “Documents responsive to this request are being produced as Attachment 1.”

4

Argument: Plaintiff argues that the documents were not in Attachment 1. Plaintiff states that

5

the scope and standards of nursing practice in correctional facilities is published by the ANA and is

6

adopted as ACHSA (American Correctional Health Services Association) Policy. Defendant argues that

7

she has responded that she has no responsive documents and that Plaintiff speculates that such

8

documents do exist.

9

Ruling: Plaintiff’s request is denied. Plaintiff fails to demonstrate that Defendant Page’s

10

response that she does not have any responsive documents in her possession, custody, or control or

11

accessible beyond that which she has already produced is not meritorious.

12

RPD No. 29: “Provide any and all documents that show what medications Defendant Page was

13

taking 2-2-10 and 2-12-10 including, but not limited to methadone (8-31-10 Defendant Page said she had

14

been on methadone for fifteen years (“A person gives up or waives a privilege of confidentiality and

15

confidential information when she reveals that information to others – Federal Rules of Evidence 501)”.

16

Response: “Responding party objects to this request of the grounds that it seeks privileged

17

information, seeks information that is immaterial to the matters at issue in this matter, and is not

18

reasonably calculated to lead to the discovery of admissible evidence.”

19

Argument: Plaintiff argues that Defendant failed to provide documentation showing what

20

medications she was taking on 2-2-10 and 2-12-10, including but not limited to Methadone. Plaintiff

21

claims this information is not privileged per Fed. R. Evidence 501, and is calculated to lead to the

22

discovery of admissible evidence. One of the Plaintiff’s complaints against Defendant Page is her angry

23

state of mind and demeanor when she saw him on these dates. Plaintiff states that methadone is an

24

opiate, and one of the signs of use, according to the 2008 Complete Guide to Prescription and

25

Nonprescription Drugs (PDR), is mood swings. Plaintiff alleges that Defendant Page’s angry demeanor

26

and tone of voice during her RN lines with the Plaintiff could indicate she had no legitimate reason for

27

the refusal of treatment, and may have been motivated by malice or was a side effect of the methadone,

28

which she admitted to taking. Page’s angry refusal to provide medical assistance is sufficient to create a

15

1

genuine issue of fact regarding her state of mind – a state of mind compounded by her admitted drug

2

therapy use. While RN Page now claims she did not take methadone, she admitted to doing so. Plaintiff

3

argues that if the Court feels this is privileged information, Plaintiff begs the Court to order Defendant

4

Page to produce her medical record showing any and all drugs she used for the Court’s eyes only to

5

ascertain if she was taking opiates in 2010 as she stated for 15 years she did. Then the Court could

6

release only the information it deems relevant.

7

Defendant counters that information about any medications that Page may have been taking on

8

February 2, 2010 and February 12, 2010 is medical information protected from disclosure by Page’s right

9

of privacy. Defendant cites to Fritsch v. City of Chula Vista, 187 F.R.D. 614, 633 (S.D. Cal. 1999):

10
11
12
13
14
15
16

Rule 26(b) of the Federal Rules of Civil Procedure allows the court to limit discovery
based upon the needs of the case, the importance of the issues, and undue burden, the
court instead adopted a balancing test to determine the scope of protection to be afforded
medical records. Rule 26(c) confers upon the court broad authority to regulate or prevent
discovery even where the information requested is within the scope of Rule 26(b). ‘When
a discovery request “approaches the outer bounds of relevance and the information
requested may only marginally enhance the objectives of providing information to the
parties or narrowing the issues, the court must then weigh that request with the hardship
to the party from whom the discovery is sought.’
(Citations.) Id., at 633-634.
Defendant argues that in the Fritsch case, the Court held that plaintiff’s privacy right was

17

paramount and precluded the production of her medical records, even though she was suing for

18

emotional distress. Page has not placed her medical condition at issue in this case and the issue of what

19

medications, if any, she was taking on the subject dates is extremely tangential to the issues in this case.

20

An alleged angry demeanor and tone in one’s voice does not waive all privacy rights regarding that

21

person’s medical condition and records. Plaintiff’s speculation cannot trump Page’s privacy right.

22

Plaintiff states that Page admitted she had been taking methadone for 15 years (which Page denies), but

23

he does not explain to whom she allegedly made this statement, the alleged circumstances surrounding it,

24

whether plaintiff allegedly heard it directly, whether it was allegedly oral or in writing, when she

25

allegedly started and stopped taking it, etc. There is no proper foundation for Plaintiff’s claim and Page

26

denies ever having made such a statement. Page has not waived her privacy right regarding records

27

relating to any medication she may have been taking on the subject dates.

28

Ruling: Plaintiff’s request is denied. Defendant’s possible use of drug therapy is tangential
16

1

to the ultimate issue in this case. The Court agrees that whether Defendant may have been angry or

2

used a rough tone of voice does not place Defendant’s mental state at issue to such an extent that

3

privileged medical records should be produced.

4

RPD No. 30: “Please provide any and all documents Defendant Page was given training or as a

5

learning aid when Page was “trained in the Policies and Procedures during orientation, and whenever

6

new Policies and Procedures are established.” ...for the safe and effective delivery of quality nursing

7

care. (See Nursing Program Overview, chapter 1, HCS, Protocols 5-1-1 to 5-1-2 “Each institution shall

8

maintain local written policies and procedures, . . ., for the safe and effective delivery of quality nursing

9

care” . . . “Each nursing service employee shall be trained in the policies and procedures during

10
11

orientation.” . . .”.

Response: “Responding party objects to this request on the grounds that it is overly broad, seeks

12

information that is immaterial to the matters at issue in this matter, and is not reasonably calculated to

13

lead to the discovery of admissible evidence.”

14

Argument: Plaintiff argues that Defendant failed to provide any documentation that she was

15

given training or a learning aid when she was trained. Plaintiff contends this information is needed to

16

establish if Page was trained in the safe and effective delivery of quality nursing care. Plaintiff states that

17

per Protocol 5-1-2, the document exists and is material to the issues of this case and her inability to

18

provide such care. It is calculated to lead to admissible evidence of her capability. Defendant counters

19

that such records would be maintained by the CDCR and Defendant does not have possession of them.

20
21

Ruling: Plaintiff’s request is denied. The request seeks documentation which is not relevant
to a party’s claims or defenses nor likely to lead to discovery of admissible evidence.

22

RPD No. 31: “Provide any and all documents of the reviews done on Defendant Page

23

concerning her use of approved protocols, HCS, which was done by the Senior Registered Nurse (“A

24

summary of the reviews shall be submitted on a monthly basis to continuous quality management for

25

training purposes – see Page 5-1-2, Nursing Program Overview, HCS Protocols).”

26

Response: “Documents responsive to this request are being provided as Attachment 1.”

27

Argument: Plaintiff argues that Defendant failed to provide any monthly summary reviews

28

which shall be submitted to continuous quality management for training purposes on Defendant Page.

17

1

Defendant argues that she has responded that she has no responsive documents and that Plaintiff

2

speculates that such documents do exist.

3

Ruling: Plaintiff’s request is denied. Plaintiff fails to demonstrate that Defendant Page’s

4

response that she does not have any responsive documents in her possession, custody, or control or

5

accessible beyond that which she has already produced is not meritorious.

6

RPD No. 33: “Provide any and all documents contained in Defendant Page’s Nurse personnel

7

file and proof of practices binder concerning Defendant Page’s competency and use of the Health Care

8

Services protocols:

9

a) Cardiovascular system, chest pain

10

b) Gastrointestinal system, gastrointestinal bleeding

11

c) Gastrointestinal system, rectal peri-anal complaints

12

d) Cardiovascular chronic care program

13

e) CCHS (California Correctional Health Care Services care guides) (See page 5-2-1,

14

introduction to Nursing Protocols, chapter 2, Health Care Services Protocols.)

15

f) Cardiovascular system, RN protocol; hypertension”

16

Response: “Documents responsive to this request are being provided as Attachment 1.”

17

Argument: Plaintiff argues that Defendant failed to provide documents from Defendant Page’s

18

Personnel file or Proof of practice binder for the items listed as b-f above. Plaintiff states Page stated in

19

Admission number thirty-four (34), in part… “The Protocols are not used during nursing triage, which is

20

where I saw the Plaintiff”. CDCR Protocols state specifically that Protocols shall be used during Nursing

21

Triage. Plaintiff states he needs these documents to show RN Page’s competency in the use of the Health

22

Care Services Protocols listed in b-f above. Defendant argues that she has responded that she has no

23

responsive documents and that Plaintiff speculates that such documents do exist.

24

Ruling: Plaintiff’s request is denied. Plaintiff fails to demonstrate that Defendant Page’s

25

response that she does not have any responsive documents in her possession, custody, or control or

26

accessible beyond that which she has already produced is not meritorious.

27
28

RPD No. 34: “Provide any and all documents concerning the nursing assessment flow sheets
Defendant Page used during her nursing triage of the Plaintiff on 2-2-10 and 2-12-10, said sheets

18

1

“provide structure to the assessment process”. These sheets are not located in the Plaintiffs Unit Health

2

Record, but are mentioned on page 5-2-1, Introduction to Nursing Protocols, Health Care Services,

3

Protocols (“Regardless of the presenting complaint, abnormal vital signs shall always be noted and

4

referred if necessary”) and provide copies of all flow sheets.”

5
6
7

Response: “Documents responsive to this request, if they exist, were previously provided to
Plaintiff, and would be included in the 582 pages of medical records served on October 29, 2013.”

Argument: Plaintiff argues that Defendant provided no documents concerning the nursing

8

assessment flow sheets Defendant Page used during her 2-2-10 and 2-12-10 RN Lines. They were not

9

located in the 582 pages served on the Plaintiff. Plaintiff contends these documents exist and are

10

mentioned in the Introduction to Nursing Protocols, Page 5-2-1. Plaintiff states that no flow sheets were

11

provided that show any abnormal vital signs and referrals. Defendant argues that she has responded that

12

she has produced all responsive documents in her possession.

13

Ruling: Plaintiff’s request is denied. Plaintiff fails to demonstrate that Defendant Page’s

14

response that she does not have any responsive documents in her possession, custody, or control or

15

accessible beyond that which was already produced in the 582 pages of medical records is not

16

meritorious.

17

RPD No. 35: “Provide any and all documents showing Defendant Page is in compliance with

18

the guidelines set forth by the North American Nursing Diagnosis Association (NANDA) (as stated in

19

the introduction to nursing protocol, page 5-2-2, HCS protocols).”

20

Response: “Responding party objects to this request on the grounds that it lacks foundation,

21

misstates the verbiage of the section referenced, does not seek an identifiable document, and is not

22

reasonably calculated to lead to the discovery of admissible evidence.”

23

Argument: Plaintiff argues that Defendant failed to provide documents showing Defendant

24

was in compliance with the guidelines as set forth by NANDA. Plaintiff denies that this request

25

lacks foundation. Plaintiff argues that Page is being accused of negligence and deliberate

26

indifference because she is not in compliance with these guidelines. Plaintiff claims Page

27

misdiagnosed Plaintiff on three occasions (1-14-10, 2-2-10, and 2-12-10) and these are the basic

28

guidelines for ensuring that the diagnostic statement is correct.

19

1

Defendant counters that there is no indication in the cited section of the California Correctional

2

Health Care Services policies and procedures that CDCR nurses are required to comply with the

3

guidelines set forth by NANDA. Page 5-2-2 states:

4

6

“According to the North American Nursing Diagnosis Association (NANDA) the nursing
diagnosis is a ‘clinical judgment about individual, family, or community responses to
actual or potential health problems or to life processes. Nursing diagnoses provide the
basis for selection of nursing interventions to achieve outcomes for which the nurse is
accountable.”

7

This is simply a definition of a nursing diagnosis. Whether Page complied with unspecified

5

8

guidelines of some nursing organization is beyond the scope of discovery.

Ruling: Plaintiff’s request is denied. The request seeks documentation which is not relevant

9
10

to a party’s claims or defenses nor likely to lead to discovery of admissible evidence.
RPD No. 36: “Provide any and all documents showing the protocols that describe the criteria for

11
12

a physician’s referral when an inmate/patient presents symptoms to a Registered Nurse at her triage line

13

for:

14

a) Hypertension, b) Anemia, c) Chest pain, cardiovascular system, d) Shortness of breath, 3)

15

Rectal peri-anal complaints, f) Dizziness, g) Weakness, h) Chronic care for inmate/patients, j)

16

Gastrointestinal bleeding. (See Page 5-2-2, Introduction to Nursing Protocols, Health Care Services, VII.

17

Criteria for referral “Each protocol describes criteria for a referral”.).”

18

Response: “Responding party objects to this request on the grounds that it lacks foundation,

19

misstates the verbiage of the section referenced, does not seek an identifiable document, and is not

20

reasonable calculated to lead to the discovery of admissible evidence.”

21

Argument: Plaintiff argues that Defendant failed to provide documents showing the

22

protocols that describe the criteria for a physician’s referral for the listed symptoms above. Plaintiff

23

states he needs these documents to establish the standard of care that Page was directed to

24

follow/implement and it will lead to the discovery of admissible evidence – whether she has, in fact,

25

followed that standard.

26

Defendant states the request is confusing. Defendant states the request is apparently based

27

on the following language from the Introduction to Nursing Protocols which is part of the Inmate

28

Medical Services Policies & Procedures of the California Correctional Health Care Services: “Each
20

1

protocol describes criteria for a referral.” In the Policies and Procedures, there are numerous

2

protocols for many different medical conditions. The criteria for physician referral are contained in

3

these protocols. There are not specific protocols in said Policies and Procedures for many of the

4

medical conditions described in this Request. In short, plaintiff is asking Page to produce documents

5

that, to the extent they exist, appear to be part of the public records of the CCHCS which are

6

available on-line. This is not a proper request. Defendant states she is not the custodian.
Ruling: Plaintiff’s request is denied. To the extent the documents exist, they are equally

7
8

available to Plaintiff.

9

II.

10
11

Motion to Compel Further Responses to Interrogatories and Request for Admissions

[ECF No. 134]
On August 19, 2015, Plaintiff moved to compel Defendant Page to respond to Interrogatory

12

(“ROG”) Nos. 7-10, 13-15, 17-19, 24, and Request for Admissions (“RFA”) (Nos. 1, 3, 7, 25, 55,

13

57-100. Plaintiff contends that Defendant’s responses were evasive and incomplete. Defendant

14

Page states she had not yet served responses to ROG No. 24 and RFA Nos. 58-100, but she has since

15

done so. She contends her responses to Plaintiff’s other requests were adequate.

16

A. Interrogatories

17

An interrogatory may relate to any matter that may be inquired into under Rule 26(b), and an

18

interrogatory is not objectionable merely because it asks for an opinion or contention that relates to

19

fact or the application of law to fact. Fed. R. Civ. P. 33(a)(2) (quotation marks omitted). Parties are

20

obligated to respond to interrogatories to the fullest extent possible under oath, Fed. R. Civ. P.

21

33(b)(3), and any objections must be stated with specificity, Fed. R. Civ. P. 33(b)(4); Davis v.

22

Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981). The responding party shall use common sense and

23

reason. E.g., Collins v. Wal-Mart Stores, Inc., No. 06-2466-CM-DJW, 2008 WL 1924935, *8 (D.

24

Kan. Apr. 30, 2008). A responding party is not generally required to conduct extensive research in

25

order to answer an interrogatory, but a reasonable effort to respond must be made. Gorrell v. Sneath,

26

292 F.R.D. 629, 632 (E.D. Cal. 2013); L.H. v. Schwarzenegger, No. S-06-2042 LKK GGH, 2007

27

WL 2781132, *2 (E.D. Cal. Sep. 21, 2007). Further, the responding party has a duty to supplement

28

any responses if the information sought is later obtained or the response provided needs correction.
21

1
2

Fed. R. Civ. P. 26(e)(1)(A).
ROG 7: “Please explain why you did not follow the CDCR Rn Protocol: Rectal peri-anal

3

complaints/protocols when the Plaintiff on 2-12-10 at your RN Line complained of excessive post

4

hemorhoid surgery excessive bleeding?”

5
6
7

Response: Defendant objected on the grounds that it is argumentative, presumes as true facts that
have not been established as true, and is vague as to which, if any, protocols were followed.
Argument: Plaintiff argues that he specifically listed the CDCR Protocol — RN Protocol Rectal

8

peri-anal complaints and simply asked a question — Why didn’t Defendant follow said protocol?

9

Plaintiff contends this is not vague when he lists the exact protocol.

10

Defendants states it is impossible for her to respond to this Interrogatory because Plaintiff has

11

made a vague reference to “CDCR Rn Protocol: Rectal Peri-anal complaints/ protocols.” Defendant

12

argues that Plaintiff must specifically identify each of the protocols that he claims Page did not follow

13

either by specifically identifying the document within which they are contained and setting them forth

14

verbatim or attaching a copy of them. Page cannot be expected to respond to this Interrogatory when she

15

does not know which protocols are being referred to. In addition, Defendant argues the interrogatory

16

presumes that whatever protocol is intended by the question was not met, and the question is

17

argumentative and compound.

18

Ruling: Plaintiff’s request is denied. The question assumes facts which have not been

19

established as true, specifically, Plaintiff asked Defendant to explain why she did not follow protocol

20

based on the assumption that she did not. In addition, Defendant is correct that the question is vague in

21

that Plaintiff did not specify which protocols Defendant did not follow.

22

ROG 8: “On 2-12-10 when you saw Plaintiff at the RN line you were conducting, explain why

23

you did not refer the Plaintiff to a doctor on a STAT basis when the Plaintiff complained of chest pain?’

24

Response: Defendant objects to this request on the grounds that it is duplicative of Request No.

25

5. Without waiving said objections, Defendant responded that her examination of Plaintiff revealed that

26

his pulse was 70, blood pressure was 130/80, and that he was alert and oriented with no acute distress.

27

Defendant states she reviewed Plaintiff’s chart, which revealed that he already had several doctors

28

appointments scheduled. Defendant then confirmed that he had an existing appointment scheduled for

22

1

February 18, 2010. Defendant states that based on her training and experience, the lack of objective signs

2

of distress, and the existing scheduled doctor appointments, Plaintiff did not need to be seen until the

3

previously-scheduled doctor’s appointment on February 18, 2010.

4

Argument: Plaintiff argues that interrogatory number 8 is not duplicative of interrogatory

5

number five. Interrogatory 5 asks Page to please explain why she did not take him to see a doctor on 2-

6

12-10 when Plaintiff told her he had a family history of heart disease and was currently suffering from

7

sharp stabbing chest pains. Interrogatory 8 asks why she did not refer him to a doctor on a STAT basis

8

when Plaintiff complained of chest pain.

9
10

Ruling: Plaintiff’s request is denied. Defendant has answered the interrogatory.

ROG 9: “On 2-12-10 when you saw Plaintiff at the RN line you were conducting, explain

11

why you did not refer the Plaintiff to a doctor on a STAT basis when the Plaintiff complained of

12

bleeding from the rectum?”

13

Response: Defendant gave the same response as they did for Interrogatory number 8 above.

14

Argument: Plaintiff argues that interrogatory number 9 is not duplicative of interrogatory 5.

15

Interrogatory 9 asks why Page did not refer him to a doctor on a STAT basis when he complained of

16

bleeding from the rectum (which Protocol 5-8c-1 at (I)(E) mandates she do). Interrogatory 5

17

concerned his complaint of chest pain.

18

Ruling: Plaintiff’s request is denied. Defendant has answered the interrogatory.

19

ROG 10: “What are your written scores on the Assessment and Management of Chest Pain —

20

written post test examinations” (mentioned on P. 5-6a-5 of the cardiovascular system, chest pain, health

21

care services protocol at III. Requirements for an RN. A. Education/Training.)”

22

Response: Pass.

23

Argument: Plaintiff contends Page did not answer Interrogatory 10. Plaintiff states he asked

24

what Page’s written scores on the assessment and management of chest pain were, not whether she

25

passed or failed, but the actual scores she received when she took the tests. Defendant argues that

26

Plaintiff has not made any showing that scoring was done on a more precise basis than pass or fail. In

27

addition, the documents that Page produced in response to the Request for Production of Documents

28

reveal that, for those assessments, scoring was done a pass or fail basis. Furthermore, there is no

23

1

relevancy to knowing the information sought.

2

Ruling: Plaintiff’s request is denied. Defendant has answered the interrogatory.

3

ROG 13: “What date did you ask the Office of the Attorney General to represent you in

4

Plaintiff’s Action (Complaint)?”

5

Response: Defendant objected to this request on the grounds that it is unrelated to the subject

6

matter of the claims or defenses, and is therefore not reasonable calculated to lead to the discovery of

7

admissible evidence. Defendant further objected to this request on the grounds that it is covered by the

8

attorney/client privilege.

9

Argument: Plaintiff argues that this information is part of the public record and is not covered

10

by the attorney/client privilege. Plaintiff notes that Defendants filed a motion for an extension of time

11

earlier in this case and there is a discrepancy as to when exactly Page entered into this case. Plaintiff

12

contends this information is calculated to lead to the discovery of admissible evidence: The date Page

13

entered into this case and whether or not sanctions should be imposed for failure to respond to Plaintiff’s

14

Summons and Discovery timely.

15

Defendant argues that the interrogatory is irrelevant and beyond the scope of discovery, and that

16

any issues relating to sanctions based on Page’s prior conduct in responding to Plaintiff’s complaint and

17

responding to discovery leading up to the Court discharging the Order to Show Cause have already been

18

decided and Plaintiff has no legal basis to seek reconsideration of those orders. The date when Page

19

sought representation from the Office of the Attorney General is irrelevant for purposes of this Motion.

20

Ruling: Plaintiff’s request is denied. Defendant is correct that the question is irrelevant in that

21

the discrepancy Plaintiff is concerned with has already been addressed and decided in previous court

22

orders.

23
24
25

ROG 14: “Explain why you did not check on the Plaintiff’s health from 2-12-10 to 2-18-10 after
he complained of chest pain and blood loss at your RN Registered Nurses Line on 2-12-10.”
Response: Defendant gave the same response as she did for Interrogatory number 8 above;

26

adding “however, if Plaintiff had signs of distress after I saw him on the RN line, he could have informed

27

custody staff, and if necessary, he would have been sent to the clinic.”

28

Argument: Plaintiff argues that Defendant Page again claims Interrogatory number 14 is

24

1

duplicative of Interrogatory 5 when it is not. Interrogatory 14 concerns why Page did not check on my

2

health from 2-12-10 to 2-18-10, while Interrogatory 5 concerns her explanation of why she did not take

3

me to see a doctor on 2-12-10.
Defendant argues that Plaintiff raises the same issue as discussed in connection with Page’s

4
5

Response to Interrogatory No. 8 and it lacks merit for the same reasons.
Ruling: Plaintiff’s request is denied. Defendant has provided a substantive response as to her

6
7

actions.
ROG 15: “Please explain why you did not summon medical attention for the Plaintiff on 2-12-10

8
9
10

at your RN line you were conducting when Plaintiff complained of excessive pain, chest pain and
anemia?”

11

Response: Defendant gave the same response as she did for Interrogatory number 8 above.

12

Argument: Plaintiff argues that Defendant Page again claims Interrogatory number 15 is

13

duplicative of Interrogatory 5 when it is not. Interrogatory 15 concerns why Page did not summon

14

medical attention when he complained of excessive pain, chest pain, and anemia, whereas Interrogatory 5

15

only concerns why she did not take him to a doctor when he complained of sharp stabbing chest pain.
Defendant argues that Plaintiff raises the same issue as discussed in connection with Page’s

16
17

Response to Interrogatory No. 8 and it lacks merit for the same reasons.
Ruling: Plaintiff’s request is denied. Defendant has provided a substantive response as to her

18
19
20
21

actions.
ROG 17: “Why did you not conduct a rectal examination on 2-12-1 0 when the Plaintiff at your
Registered Nurses Line told you he was bleeding from the rectum?”

22

Response: Defendant gave the same response as she did for Interrogatory number 8 above.

23

Argument: Plaintiff argues that Defendant again claims Interrogatory number 17 is duplicative

24

of Interrogatory 5 when it is not. Interrogatory 17 concerns why Page did not conduct a rectal

25

examination when I told her I was bleeding from the rectum, whereas Interrogatory number 5 concerns

26

why she did not take me to see a doctor about chest pains. Defendant argues that Plaintiff’s interrogatory

27

raised the same issue discussed in connection with Defendant’s Response to Interrogatory No. 8.

28

Ruling: Plaintiff’s request is denied. Defendant has provided a substantive response as to her

25

1

actions.

2

ROG 18: “Explain please what actions you took on or after 2-12-10 to treat the Plaintiff’s

3

condition when he complained at your RN Line on 2-12-10 concerning his chest pain, anemia, and

4

bleeding?”

5

Response: “Responding party objects to this request on the grounds that it misstates the

6

conversation between Plaintiff and myself. Without waiving said objections, I evaluated Plaintiff to

7

determine his clinical stability by checking his vital signs (temperature, pulse, respiration, and blood

8

pressure) and observing generally Plaintiff’s level of consciousness and ability to walk and/or move. I

9

found that the Plaintiff was not in distress and was stable. I reviewed his chart, which revealed that he

10

already had several doctor’s appointments scheduled. I then confirmed that he had an existing

11

appointment scheduled for February 18, 2010. Based on my training and experience, the lack of

12

objective signs of distress, and the existing scheduled doctor’s appointments, Plaintiff did not need to be

13

seen until the previously-scheduled doctor’s appointment on February 18, 2010.”

14

Argument: Plaintiff contends that Defendant Page did not answer Interrogatory 18. He states he

15

asked what actions Page took on or after 2-12-10 to treat my condition. Even if she believes he misstated

16

the conversation she still did not answer the first part of the question. Defendant states that the only

17

problem that Plaintiff has with her response is that Defendant has not discussed the treatment she

18

provided to plaintiff after February 12, 2010. Defendant points out that in the First Amended Complaint,

19

Plaintiff did not complain about the care and treatment he received from Page after February 12, 2010.

20

Therefore, there is no good cause for compelling Page to describe each and every instance in which she

21

provided care and treatment to Plaintiff after this date, if in fact she did.

22

Ruling: Plaintiff’s request is denied. Defendant provided a response to Plaintiff’s question. As

23

to Defendant’s actions after February 12, 2010, Defendant correctly notes that Plaintiff’s claims concern

24

only Defendant’s actions on February 12, 2010.

25

ROG 19: “Please list who your supervisors are, by title only, all the way from your position as a

26

Registered Nurse at S.A.T.F. Corcoran Prison E Yard on 2-12-10 up to the chief medical officer and/or

27

warden, whomever is at the top of your supervisorial chain of command?”

28

Response: “Responding party objects to this request on the grounds that it is overly broad, and

26

1

not reasonably calculated to lead to the discovery of admissible evidence. Without waiving said

2

objections, my immediate supervisor was Belinda Haven, SRN II.”

3

Argument: Plaintiff argues that Defendant Page failed to answer Interrogatory 19. A basic chain

4

of command is not overly broad and is calculated to lead to the discovery of admissible evidence:

5

supervisory liability, which supervisors were delineated to ensure RN Page was properly

6

trained/supervised, to include Defendant Enenmoh. Plaintiff states there seems to be no chain of

7

command listed here in prison so inmates cannot appeal misconduct to the personnel who supervise

8

nurses. Plaintiff states he needs to know the chain of command all the way to the Chief medical

9

Executive or Chief medical officer and/or Warden to establish Supervisory Liability, Failure to Train, or

10

ensure Page is re-trained to follow Protocols for this suit. Defendant states that Plaintiff knows the

11

identity of the Chief Medical Officer of SATF Corcoran and according to the FAC, it is Dr. Enenmoh.

12

Defendant states she has provided the name of her immediate supervisor, and Plaintiff has not provided a

13

plausible explanation as to why the chain of command in between these persons is relevant to the claims

14

he has alleged in the FAC.

15

Ruling: Plaintiff’s request is denied. Defendant has provided the name of her immediate

16

supervisor and Plaintiff knows the identity of the Chief Medical Officer. The Court finds that Plaintiff

17

has failed to demonstrate why the identity of any additional individuals are relevant to this case.

18

ROG 24: “Why did you not follow the statutory Instructions set forth in the CCHCS (California

19

Correctional Health Care Services) Care Guide - Chest Pain, Diagnostic criteria - Evaluation, that

20

governs all prison medical care, and not promptly refer the Plaintiff, when he complained to you of

21

dizziness, chest pain and shortness of breath when you noted his Hypertension on 2-12-10?”

22

Response: No response was given.

23

Argument: Defendant states she is serving a Response to Interrogatory No. 24 which she

24

attached as Exhibit “B”.

25

Ruling: Plaintiff’s request is denied. Defendant has provided a response.

26

B. Requests for Admissions

27

“A party may serve on any other party a written request to admit, for purposes of the pending

28

action only, the truth of any matters within the scope of Rule 26(b)(1) relating to: (A) facts, the

27

1

application of law to fact, or opinions about either; and (B) the genuineness of any described

2

documents.” Fed. R. Civ. P. 36(a)(1).

3
4
5
6
7

If a matter is not admitted, the answer must specifically deny it or state in detail why the
answering party cannot truthfully admit or deny it. A denial must fairly respond to the
substance of the matter; and when good faith requires that a party qualify an answer or
deny only a part of a matter, the answer must specify the part admitted and qualify or
deny the rest. The answering party may assert lack of knowledge or information as a
reason for failing to admit or deny only if the party states that it has made reasonable
inquiry and that the information it knows or can readily obtain is insufficient to enable it
to admit or deny.
Fed. R. Civ. P. 36(a)(4).

8

“The grounds for objecting to a request must be stated,” Fed. R. Civ. P. 36(a)(5), and with other

9
forms of discovery, it is well established that boilerplate objections do not suffice, e.g., Thompson v.

10
Yates, No. 1:06-cv-00763-RCC, 2011 WL 5975469, at *2-3 (E.D. Cal. Nov. 29, 2011); Everest Indem.

11
Ins. Co. v. Aventine-Tramonti Homeowners Assoc., No. 2:09-cv-1672-RCJ-RJJ, 2011 WL 3841083, at

12
*2 (D. Nev. Aug. 29, 2011); Palladini v. City of Milpitas, No. CV 06-00779 JW (HRL), 2008 WL

13
1774090, at *2 (N.D. Cal. Apr. 16, 2008); Medina v. U.P.S., No. C-06-791 JW PVT, 2007 WL 2123699,

14
at *2 (N.D. Cal. Jul. 23, 2007); Eastridge Personnel of Las Vegas, Inc. v. Du-Orpilla, No. 2:06-cv-

15
00776-KJD-PAL, 2007 WL 1232229, at *2 (D. Nev. Apr. 26, 2007); A. Farber & Partners, Inc. v.

16
Garber, 237 F.R.D. 250, 255 (C.D. Cal. 2006).

17
18

Finally, “[t]he requesting party may move to determine the sufficiency of an answer or
objection,” Fed. R. Civ. P. 36(a)(6). “Unless the court finds an objection justified, it must order that an

19
answer be served. On finding that an answer does not comply with this rule, the court may order either

20
that the matter is admitted or that an amended answer must be served.” Id. Efforts to obstruct discovery

21
through objections or evasive responses which lack any good faith basis will not be condoned.

22
Marchand v. Mercy Med. Cntr., 22 F.3d 933, 938 (9th Cir. 1994); In re TFT-LCD (Flat Panel) Antitrust

23
Litigation, No. M 07-1827 SI, 2011 WL 3566419, at *5 (N.D. Cal. Aug. 12, 2011); Mitchell, 2010 WL

24
3835765, at *1.

25

RFA 1: “Do you admit to signing any documentation that you have read and understand the

26
Health Care Policies and Procedures Manuals distributed by Health Care Services Division that are

27
available to all Health Care Staff? (see Page 1-8-3 Implementation and Review of Health Care Policies

28
and Procedures, Health Care Services. Protocols).”

28

1

Response: Defendant objects to this request on the grounds that it is vague as to what specific

2

documents Plaintiff is referring. Defendant also objects because the date the document would have been

3

signed is immaterial to the matters at issue as it has no bearing on the subject matter of the complaint,

4

and is not reasonably calculated to lead to the discovery of admissible evidence. Without waiving said

5

objections, and assuming Plaintiff is referring to the evaluations for minimum requirements for the

6

physical assessment, urgent/emergent, and sick call protocols, the request is admitted.

7

Argument: Plaintiff states that Defendant says Admission 1 is vague, yet Plaintiff specifically

8

list the exact health care policies and procedures manuals distributed by the Health Care Services

9

Division (per 1-8-3 “employees are required to sign documentation that they have read the policies and

10

procedures and understand them”). This signed document is material to the issues in this case: RN Pages

11

refusal to follow the policies and procedures and/or delineated actions mandated by them. She follows

12

that she signed.

13

Defendant argues she has admitted this Request as she understood it. Plaintiff has not established

14

that Page’s understanding as to the document to which Plaintiff is referring in this Interrogatory is

15

erroneous or unreasonable. The fact that Plaintiff has described the policies and procedures manuals does

16

not mean that the document that Page may have signed to confirm her understanding of those manuals is

17

not vague and ambiguous.

18
19

Ruling: Plaintiff’s request is denied. Defendant has admitted the Request, and Plaintiff has not
established that Defendant’s understanding of the document referred to is erroneous or unreasonable.

20

RFA 3: “Do you admit you are required to notify a physician on a ‘STAT or URGENT’ basis if

21

the inmate/patient meets the criteria listed in the cardiovascular system, RN Protocol: Chest Pain, Health

22

Care Services Protocol? (see page 5-6a-1 to P. 5-6a-4)”.

23

Response: Defendant admits that a nurse must use their best judgment to order and to provide

24

immediate medical attention for inmate/patients who have an apparent need for such care. Except as

25

admitted, the request is denied.

26

Argument: Plaintiff contends that Defendant Page did not answer Admission 3. Plaintiff states

27

he asked if Defendant was required to notify a physician on a STAT or URGENT basis if the

28

inmate/patient meets the criteria in the cv system. Rn Protocol: chest pain (pages 5-6a-1 to 5-6a-4).

29

1

Plaintiff states he did not ask about Defendant’s best judgment but about the delineated mandated actions

2

the protocols require she follows.

3

Defendant states she has admitted a certain fact in her response and denied the remainder of this

4

Request. This is a proper response and is not evasive. Defendant states she has fully responded to this

5

request, and argues the request as written is compound, vague and argumentative, and she has made a

6

good faith effort to respond.

7
8
9

Ruling: Plaintiff’s request is denied. Defendant has admitted a fact and denied the remainder of
the Request.
RFA 7: “Do you admit that on 2-12-10 inmates at California Substance Abuse Treatment

10

Facility, Corcoran Prison, E Yard who were on chronic care for their heart conditions had a stamp of a

11

caduceus (symbol of the medical profession) on the back of their prison issued identification cards?”

12
13
14

Response: Defendant admits that a heart condition is one reason an inmate might have a
caduceus on the back of his identification card.
Argument: Plaintiff argues that Defendant Page did not answer Admission number 7. Plaintiff

15

states he asked Defendant Page that on 2-12-10 if inmates who were on Chronic Care for their heart

16

condition had a stamp of a caduceus on the back of their prison issued I.D. Cards - not the reason an

17

inmate might have one on the back of their I.D. Card.

18

Defendant states she has admitted that having a heart condition is a reason for an inmate at SATF

19

Corcoran to have a caduceus on the back of his ID card. In other words, inmates with a heart condition

20

are among inmates who could have a caduceus on the back of their ID cards.

21

Ruling: Plaintiff’s request is denied. Defendant has responded to the request.

22

RFA 25: “Do you admit that on 2-12-10 when Plaintiff said he was anemic, you told him he was

23

not anemic?”

24

Response: Defendant objects to this request on the grounds that it duplicative of Request No. 18.

25

Argument: Plaintiff argues that Defendant Page claims Admission number 25 is duplicative of

26

Admission 18 and it is not. Admission 25 concerns an admission that on 2-12-10 when I said I was

27

anemic (which RN Page wrote on her 7362 form) Page told me I was not. Admission 18 simply asks

28

Page to admit she told me I was not anemic (the difference being - Admission 25 put Page on alert of my

30

1

concerns which she disregarded without ordering blood tests to confirm her diagnosis - while Admission

2

18 is a general answer to her statement).

3
4

Defendant contends the two Requests are the same. Plaintiffs attempt to identify a meaningful
difference between them makes no sense.

5

Ruling: Plaintiff’s request is denied. Defendant’s argument is correct.

6

RFA 55: “Do you admit of being a member of the A.C.H.S.A. (American Correctional Health

7

Services Association) which is the membership organization for all correctional health care

8

professionals?”

9

Response: Defendant objects to this request on the grounds that it lacks foundation, presumes as

10

true facts that have not been established as true, is immaterial to the issues of this lawsuit, and is not

11

reasonably calculated to lead to the discovery of admissible evidence.

12

Argument: Plaintiff argues that Defendant refused to answer Admission number 55. The issue

13

of whether she is a member of A.C.H.S.A. is material to the issues of this case and is calculated to lead to

14

the discovery of admissible evidence. If Page is a member of A.C.H.S.A. - the A.C.H.S.A. provides

15

education and skill development, created positive health changes for detained and incarcerated

16

individuals. Plaintiff argues that Page admitted in Admission 54 to being familiar with the scope and

17

standards of nursing practice in correctional facilities, which is published by the American Nursing

18

Association (ANA) and is adopted as A.C.H.S.A. Policy. Page’s membership in the A.C.H.S.A. is

19

material to the issues of this suit: Page’s conduct towards Plaintiff was in direct disregard of A.C.H.S.A.

20

Policy, and the Standard of Care required. Plaintiff states he is trying to show this standard of care, and

21

that Page’s actions fell below the standard of care required by the American Nurses Association.

22

Defendant contends that this Request asks Page to admit that the A.C.H.S.A. “is the membership

23

organization for all correctional health care professionals.” Defendant states she lacks the foundation to

24

be able to admit or deny that fact.

25
26
27
28

Ruling: Plaintiff’s request is denied. The Request presumes as true facts which have not been
established as true.
RFA 57: “The United States recognizes that detainees in correctional facilities are totally
dependent on the employees of the institution for their health care. Do you admit “this increases the

31

1
2

nurses responsibility for assisting the incarcerated person’s with their health care problems?”
Response: Defendant objects to this request on the grounds that it lacks foundation, states a legal

3

conclusion, is not related to the claims or defenses in this matter and is therefore not reasonably

4

calculated to lead to the discovery of admissible evidence, is argumentative, and is not a plain statement

5

of fact that can be easily admitted or denied. Without waiving said objections, Defendant admits that like

6

nurses who work outside of the prison setting, registered nurses working in prisons must use their critical

7

thinking and clinical skills to treat their patients to the best of their abilities. Except as expressly

8

admitted, the request is denied.

9

Argument: Plaintiff claims Defendant Page did not answer Admission number 57. Plaintiff

10

states that if Page is familiar with the scope and standards of nursing practice in Correctional facilities

11

(Admission 54) then she is familiar with its belief. This is calculated to lead to the discovery of

12

admissible evidence: Page’s familiarity with the beliefs of the scope and standards, yet failure to abide by

13

it. Plaintiff states this helps to establish the standard of care that Page claims to be familiar with, yet fails

14

to abide by.

15

Defendant claims the request is extremely vague, overly broad, argumentative, and involves a

16

hypothetical that has no bearing on the specific allegations against Page in the complaint. Despite all of

17

these objections, Defendant states she did admit certain facts and denied the remainder of the request.

18

This is a proper response and is not evasive.

19

Ruling: Plaintiff’s request is denied. Defendant has answered the Request.

20
21
22

ORDER
Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motions to compel dated August
14, 2015, and August 19, 2015, are DENIED.

23
24
25
26

IT IS SO ORDERED.
Dated:

/s/ Dennis

January 26, 2016

L. Beck

UNITED STATES MAGISTRATE JUDGE

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