Vance Edward Johnson v. Barajas

Filing 30

ORDER Granting Defendant Barajas' 28 Motion to Compel; ORDER for Plaintiff to Respond to Defendant Barajas' Request for Production of Documents, Set One, Within Thirty Days, signed by Magistrate Judge Gary S. Austin on 9/29/17. (Gonzalez, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 VANCE EDWARD JOHNSON, 12 Plaintiff, 13 14 vs. BARAJAS, 15 Defendant. 16 17 I. 1:14-cv-01690-LJO-GSA-PC ORDER GRANTING DEFENDANT BARAJAS’ MOTION TO COMPEL (ECF No. 28.) ORDER FOR PLAINTIFF TO RESPOND TO DEFENDANT BARAJAS’ REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE, WITHIN THIRTY DAYS BACKGROUND 18 Vance Edward Johnson (“Plaintiff”) is a state prisoner proceeding pro se and in forma 19 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. The case now proceeds with 20 the First Amended Complaint filed by Plaintiff on August 21, 2015, against defendant 21 Correctional Officer M. Barajas (“Defendant”), on Plaintiff’s claim for adverse conditions of 22 confinement under the Eighth Amendment. (ECF No. 9.) 23 On January 31, 2017, the court issued a Discovery and Scheduling Order establishing 24 deadlines of June 30, 2017, for completion of discovery, including the filing of motions to 25 compel, and September 1, 2017, for the parties to file pretrial dispositive motions. (ECF No. 26 27.) 27 On May 2, 2017, Defendant filed a motion to compel responses to Defendant’s Request 28 for Production of Documents, Set One. (ECF No. 28.) Plaintiff has not filed an opposition to 1 1 the motion to compel. 2 II. MOTION TO COMPEL 3 A. 4 Rule 26(b) - Scope of Discovery 5 Under Rule 26(b), “[U]nless otherwise limited by court order, the scope of discovery is 6 as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to 7 any party's claim or defense C including the existence, description, nature, custody, condition, 8 and location of any documents or other tangible things and the identity and location of persons 9 who know of any discoverable matter. For good cause, the court may order discovery of any 10 matter relevant to the subject matter involved in the action.1 Relevant information need not be 11 admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of 12 admissible evidence.” Fed. R. Civ. P. 26(b)(1). Legal Standards 13 Rule 34 - Production of Documents 14 Under Rule 34(a), “any party may serve on any other party a request to produce and 15 permit the party making the request . . . to inspect and copy any designated documents . . . 16 which are in the possession, custody or control of the party upon whom the request is served.” 17 Fed. R. Civ. P. 34(a)(1). “[A] party need not have actual possession of documents to be 18 deemed in control of them.” Clark v. Vega Wholesale Inc., 181 F.R.D. 470, 472 (D.Nev. 1998) 19 quoting Estate of Young v. Holmes, 134 F.R.D. 291, 294 (D.Nev. 1991). “A party that has a 20 legal right to obtain certain documents is deemed to have control of the documents.” Clark, 81 21 F.R.D. at 472. Under Rule 34(b), the party to whom the request is directed must respond in 22 writing that inspection and related activities will be permitted as requested, or state an objection 23 to the request, including the reasons. Fed. R. Civ. P. 34(b)(2). Also, “[a] party must produce 24 documents as they are kept in the usual course of business or must organize and label them to 25 correspond to the categories in the request.” Fed. R. Civ. P. 34(b)(E)(I). 26 27 28 1 “Evidence 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 /// 2 Court’s Scheduling Order 3 The court’s Scheduling Order of January 31, 2017, instructed the parties that 4 “[r]esponses to written discovery requests shall be due 30 calendar days after the request is 5 served.” (ECF No. 27 at 2:5.) The parties were also informed that “Local Rule 251 and the 6 requirements set forth in Federal Rules of Civil Procedure 26 and 37− that a party certify he/she 7 has conferred in good faith or attempted to confer with the opponent in an effort to resolve the 8 dispute prior to seeking court action − shall not apply unless otherwise ordered. Nevertheless, 9 voluntary compliance with this provision of Federal Rules of Civil Procedure 26 and 37 is 10 encouraged.” (Id. at 2:18-21.) 11 Rule 37 - Motions to Compel 12 Pursuant to Rule 37(a), a party propounding discovery or taking a deposition may seek 13 an order compelling responses when an opposing party has failed to respond or has provided 14 evasive or incomplete responses. Fed. R. Civ. P. 37(a)(3)(B). “[A]n evasive or incomplete 15 disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” 16 Fed. R. Civ. P. 37(a)(4). “It is well established that a failure to object to discovery requests 17 within the time required constitutes a waiver of any objection.” Richmark Corp. v. Timber 18 Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992) (citing Davis v. Fendler, 650 F.2d 19 1154, 1160 (9th Cir.1981)). The moving party bears the burden of demonstrating “actual and 20 substantial prejudice” from the denial of discovery. See Hallett v. Morgan, 296 F.3d 732, 751 21 (9th Cir. 2002) (citations omitted.). Defendant’s Motion 22 B. 23 Defendant seeks an order compelling Plaintiff to respond to Defendant’s Request for 24 Production of Documents, Set One. Defendant asserts that Plaintiff failed to respond at all to 25 the Request. Defendant provides evidence that on February 17, 2017, defense counsel served 26 Defendant’s Request for Production of Documents, Set One, on Plaintiff. (Declaration of 27 Joseph R. Wheeler, ECF No. 28-2 ¶2 & Exh. A.) Pursuant to the court’s Discovery and 28 Scheduling Order, Plaintiff’s responses were due no later than March 22, 2017. (Id. ¶3.) On 3 1 April 5, 2017, defense counsel mailed Plaintiff a letter in an attempt to confer in good faith 2 regarding his overdue responses, informing Plaintiff that his responses were late and requesting 3 that he provide counsel with the responses as soon as possible. (Id. at ¶4 & Exh. B.) As of 4 May 2, 2017, Plaintiff had not provided any response to the Request for Production of 5 Documents nor the meet and confer letter. (Id. at ¶5.) 6 C. 7 Plaintiff has not opposed Defendant’s motion to compel. Based on the evidence set 8 forth above by Defendant, the court finds that Plaintiff failed to timely respond to Defendant’s 9 Request for Production of Documents, Set One, thus waiving any objections. Discussion 10 Defendant’s motion to compel shall be granted. 11 III. Therefore, CONCLUSION 12 Based on the foregoing, IT IS HEREBY ORDERED that: 13 1. Defendant Barajas’ motion to compel, filed on May 2, 2017, is GRANTED; 14 2. Plaintiff is required to respond to Defendant’s Request for Production of 15 Documents, Set One, within thirty (30) days of the date of service of this order; 16 3. No objections to the discovery requests are permitted; and 17 4. Plaintiff’s failure to comply with this order shall result in a recommendation that 18 this action be dismissed. 19 20 21 22 IT IS SO ORDERED. Dated: September 29, 2017 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 4

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