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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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VANCE EDWARD JOHNSON,

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Plaintiff,

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vs.
BARAJAS,

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Defendant.

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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

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Vance Edward Johnson (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. The case now proceeds with

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the First Amended Complaint filed by Plaintiff on August 21, 2015, against defendant

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Correctional Officer M. Barajas (“Defendant”), on Plaintiff’s claim for adverse conditions of

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confinement under the Eighth Amendment. (ECF No. 9.)

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On January 31, 2017, the court issued a Discovery and Scheduling Order establishing

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deadlines of June 30, 2017, for completion of discovery, including the filing of motions to

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compel, and September 1, 2017, for the parties to file pretrial dispositive motions. (ECF No.

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27.)

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On May 2, 2017, Defendant filed a motion to compel responses to Defendant’s Request

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for Production of Documents, Set One. (ECF No. 28.) Plaintiff has not filed an opposition to
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the motion to compel.

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II.

MOTION TO COMPEL

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A.

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Rule 26(b) - Scope of Discovery

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

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

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

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

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

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

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

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

Legal Standards

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Rule 34 - Production of Documents

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

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

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

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

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

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

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

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

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

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

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

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

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“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.
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Court’s Scheduling Order

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The court’s Scheduling Order of January 31, 2017, instructed the parties that

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“[r]esponses to written discovery requests shall be due 30 calendar days after the request is

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served.” (ECF No. 27 at 2:5.) The parties were also informed that “Local Rule 251 and the

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requirements set forth in Federal Rules of Civil Procedure 26 and 37− that a party certify he/she

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has conferred in good faith or attempted to confer with the opponent in an effort to resolve the

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dispute prior to seeking court action − shall not apply unless otherwise ordered. Nevertheless,

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voluntary compliance with this provision of Federal Rules of Civil Procedure 26 and 37 is

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encouraged.” (Id. at 2:18-21.)

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Rule 37 - Motions to Compel

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

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

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

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

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

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

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

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

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

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

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B.

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

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Production of Documents, Set One. Defendant asserts that Plaintiff failed to respond at all to

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the Request. Defendant provides evidence that on February 17, 2017, defense counsel served

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Defendant’s Request for Production of Documents, Set One, on Plaintiff. (Declaration of

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Joseph R. Wheeler, ECF No. 28-2 ¶2 & Exh. A.) Pursuant to the court’s Discovery and

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Scheduling Order, Plaintiff’s responses were due no later than March 22, 2017. (Id. ¶3.) On
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April 5, 2017, defense counsel mailed Plaintiff a letter in an attempt to confer in good faith

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regarding his overdue responses, informing Plaintiff that his responses were late and requesting

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that he provide counsel with the responses as soon as possible. (Id. at ¶4 & Exh. B.) As of

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May 2, 2017, Plaintiff had not provided any response to the Request for Production of

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Documents nor the meet and confer letter. (Id. at ¶5.)

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C.

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Plaintiff has not opposed Defendant’s motion to compel. Based on the evidence set

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forth above by Defendant, the court finds that Plaintiff failed to timely respond to Defendant’s

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Request for Production of Documents, Set One, thus waiving any objections.

Discussion

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Defendant’s motion to compel shall be granted.

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III.

Therefore,

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

Defendant Barajas’ motion to compel, filed on May 2, 2017, is GRANTED;

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2.

Plaintiff is required to respond to Defendant’s Request for Production of

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Documents, Set One, within thirty (30) days of the date of service of this order;

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3.

No objections to the discovery requests are permitted; and

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

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this action be dismissed.

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IT IS SO ORDERED.
Dated:

September 29, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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