Carlos Manuel Flores v. Corcoran State Prison et al

Filing 21

ORDER GRANTING Defendant Moon's Motion to Compel 18 ; ORDER for Plaintiff to Respond to Requests Two, Three, and Four of Defendant Moon's Request for Production of Documents, Set One, Within Thirty Days, signed by Magistrate Judge Gary S. Austin on 12/5/13. (Hellings, J)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11
12

1:12-cv-00977-GSA-PC

CARLOS MANUEL FLORES,

13
14

Plaintiff,

15
16

ORDER GRANTING DEFENDANT
MOON’S MOTION TO COMPEL
(Doc. 18.)

vs.

ORDER FOR PLAINTIFF TO RESPOND
TO REQUESTS TWO, THREE, AND FOUR
OF DEFENDANT MOON’S REQUEST FOR
PRODUCTION OF DOCUMENTS, SET
ONE, WITHIN THIRTY DAYS

CORCORAN STATE PRISON, et al.,

17

Defendants.

18
19
20
21

I.

BACKGROUND

22

Carlos Manuel Flores ("Plaintiff") is a state prisoner proceeding pro se and in forma

23

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

24

commencing this action on June 18, 2012. (Doc. 1.) The parties have consented to Magistrate

25

Judge jurisdiction pursuant to 28 U.S.C. § 636(c). (Docs. 5, 15.)

26

with the First Amended Complaint, filed by Plaintiff on September 17, 2012, against defendant

27

Dr. Moon (“Defendant”), for failure to provide adequate medical care to Plaintiff, in violation

28

of the Eighth Amendment. (Doc. 7.)
1

This case now proceeds

1

On January 15, 2013, the court issued a Scheduling Order establishing pretrial deadlines,

2

including a deadline of September 15, 2013 for completion of discovery.

3

September 13, 2013, Defendant filed a motion to compel discovery responses. (Doc. 18.)

4

Plaintiff has not filed an opposition to the motion to compel. (Court Record.)

5

II.

(Doc. 13.) On

MOTION TO COMPEL

6

A.

7

Rule 26(b) - Scope of Discovery

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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

Legal Standards

16

Rule 34 - Production of Documents

17

Under Rule 34(a), Aany party may serve on any other party a request to produce and

18

permit the party making the request . . . to inspect and copy any designated documents . . .

19

which are in the possession, custody or control of the party upon whom the request is served.@

20

Fed. R. Civ. P. 34(a)(1). A[A] party need not have actual possession of documents to be

21

deemed in control of them.@ Clark v. Vega Wholesale Inc., 181 F.R.D. 470, 472 (D.Nev. 1998)

22

quoting Estate of Young v. Holmes, 134 F.R.D. 291, 294 (D.Nev. 1991). AA party that has a

23

legal right to obtain certain documents is deemed to have control of the documents.@ Clark, 81

24

F.R.D. at 472. Under Rule 34(b), the party to whom the request is directed must respond in

25

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

26

to the request, including the reasons. Fed. R. Civ. P. 34(b)(2). Also, A[a] party must produce

27
1

28

AEvidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be
without the evidence; and (2) the fact is of consequence in determining the action.@ Fed. R. Evid. 401.

2

1

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

2

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

3

Court’s Scheduling Order

4

The court’s Scheduling Order of January 15, 2013, instructed the parties that

5

“[r]esponses to written discovery requests shall be due forty-five (45) days after the request is

6

first served.” (Doc. 13 at 1 ¶2.) The parties were also informed that “[u]nless otherwise

7

ordered, Rule 251 shall not apply, and the requirement set forth in Federal Rules of Civil

8

Procedure 26 and 37 . . . shall not apply.2 (Id. at 2 ¶5.)

9

Rule 37 - Motions to Compel

10

Pursuant to Rule 37(a), a party propounding discovery or taking a deposition may seek

11

an order compelling responses when an opposing party has failed to respond or has provided

12

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

13

disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.@

14

Fed. R. Civ. P. 37(a)(4). AIt is well established that a failure to object to discovery requests

15

within the time required constitutes a waiver of any objection.@ Richmark Corp. v. Timber

16

Falling Consultants, 959 F.2d 1468, 1473 (9th Cir.1992) (citing Davis v. Fendler, 650 F.2d

17

1154, 1160 (9th Cir.1981)). The moving party bears the burden of demonstrating Aactual and

18

substantial prejudice@ from the denial of discovery. See Hallett v. Morgan, 296 F.3d 732, 751

19

(9th Cir. 2002) (citations omitted).
Defendant’s Motion

20

B.

21

Defendant seeks an order compelling Plaintiff to respond to Defendant’s Request for

22

Production of Documents, Set One. Defendant provides evidence that on February 5, 2013,

23

defense counsel served Defendant’s Request for Production of Documents, Set One, upon

24

Plaintiff. (Declaration of Jennifer Marquez (“Marquez Decl.”), Doc. 18-1 at ¶2, Exh. A.)

25
26
27
28

2

“Federal Rules of Civil Procedure 26 and 37 [require] that a party seeking relief from the court
concerning obligations to respond to requests for discovery certify that he or she has in good faith conferred or
attempted to confer with the other party or person in an effort to resolve the dispute prior to seeking court action
shall not apply. Voluntary compliance with this provision of Rules 26 and 37 is encouraged, however.” (Doc. 13
at 2 ¶5.)

3

1

Thus, pursuant to the court’s Scheduling Order, Plaintiff’s responses to the Request for

2

Production were due no later than March 25, 2013.3 (Doc. 13 at 1 ¶2.) On April 12, 2013,

3

defense counsel sent Plaintiff a letter about his failure to respond and produce documents,

4

requesting Plaintiff to provide responses no later than May 10, 2013, or a motion to compel

5

would be filed. (Marquez Decl. at ¶¶3, 4, Exh. B.) As of September 13, 2013, the date of

6

Defendant’s motion to compel, Plaintiff had not provided any response to defense counsel’s

7

letter or to the Request for Production. (Id. at ¶5.)

8

Defendant seeks an order compelling Plaintiff to respond and produce documents in

9

response to the Request for Production. Specifically, Defendant seeks to compel responses to

10

the following three requests in the Request for Production:

11

REQUEST FOR PRODUCTION NO. 2:

12

All documents that support your contention that Dr. Moon

13

violated your civil or constitutional rights.

14

REQUEST FOR PRODUCTION NO. 3:

15

All documents that support your contention that you suffered

16

injury or harm as a result of the purported acts or omissions by

17

Defendant Dr. Moon.

18

REQUEST FOR PRODUCTION NO. 4:

19

All medical records relating to your contention that Dr. Moon

20

violated your civil or constitutional rights.

21
22

Defendant argues that the requested discovery is nonprivileged and relevant to
Plaintiff’s claims and to Dr. Moon’s defense of this case.

23

C.

24

Based on the evidence set forth above by Defendant, the court finds that Plaintiff failed

25

to timely respond to Defendant’s Request for Production of Documents, Set One, thus waiving

26

any objections. The court also finds that Defendant’s requested discovery concerns matters

Discussion

27
3

28

Pursuant to Rule 6(d), AWhen a party may or must act within a specified time after service and service is
made under Rule 5(b)(2)(C), (D), (E), or (F), 3 days are added after the period would otherwise expire under Rule
6(a).) Fed. R. Civ. P. 6(d).
4

1

relevant to the subject matter involved in this action. Plaintiff has not filed any opposition to

2

Defendant’s motion to compel. Based on this evidence, the court finds good cause to grant

3

Defendant’s motion to compel.

4

III.

CONCLUSION

5

Based on the foregoing, and good cause appearing, IT IS HEREBY ORDERED that:

6

1.

7

Defendant Moon’s motion to compel, filed on September 13, 2013, is
GRANTED;

8

2.

9

Plaintiff is required to respond to Requests Two, Three, and Four of Defendant’s
Request for Production of Documents, Set One, within thirty (30) days of the

10

date of service of this order;

11

3.

No objections to the discovery requests are permitted; and

12

4.

Plaintiff’s failure to comply with this order shall result in a recommendation that

13

this action be dismissed.

14
15
16
17

IT IS SO ORDERED.
Dated:

18
19
20

December 5, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

6i0kij8d

21
22
23
24
25
26
27
28

5