King v. Biter et al

Filing 41

ORDER Granting Defendants' 38 Motion to Compel and Modification of Scheduling Order, signed by Magistrate Judge Stanley A. Boone on 6/1/17. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LARRY DONNELL KING, SR.,

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Plaintiff,
v.
M.D. BITER, et al.,
Defendants.

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Case No.: 1:15-cv-00414-LJO-SAB (PC)
ORDER GRANTING DEFENDANTS’ MOTION
TO COMPEL AND MODIFICATION OF
SCHEDULING ORDER
[ECF No. 38]

Plaintiff Larry Donnell King, Sr. is appearing pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983.
Currently before the Court is Defendants’ motion to compel, filed May 10, 2017.

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I.

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RELEVANT HISTORY

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This action is proceeding on Plaintiff’s failure to protect claims against Defendants Tarnoff,

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Tallerico, Acebedo, Castro and Lawless (relating to an attack on August 10, 2011), and against

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Defendant Biter (relating to an attack in January 2014).

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On March 7, 2017, Defendants filed an answer to Plaintiff’s complaint. On March 8, 2017, the
Court issued the discovery and scheduling order.

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As previously stated, on May 10, 2017, Defendants filed a motion to compel responses to

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discovery and request to modify the scheduling order. Plaintiff filed an opposition on May 22, 2017,

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and Defendants filed a reply on May 26, 2017.

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II.

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DISCUSSION

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Plaintiff is proceeding pro se and he is a state prisoner challenging his conditions of

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confinement.

As a result, the parties were relieved of some of the requirements which would

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otherwise apply, including initial disclosure and the need to meet and confer in good faith prior to

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involving the Court in a discovery dispute. Fed. R. Civ. P. 26(a)(1); Fed. R. Civ. P. 26(c); Fed. R. Civ.

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P. 37(a)(1); Local Rules 240, 251; ECF No. 37, Discovery and Scheduling Order, &4. Further, where

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otherwise discoverable information would pose a threat to the safety and security of the prison or

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infringe upon a protected privacy interest, a need may arise for the Court to balance interests in

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determining whether disclosure should occur.

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Rhinehart, 467 U.S. 20, 35 n.21 (1984) (privacy rights or interests implicit in broad purpose and

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language of Rule 26(c)); Burlington N. & Santa Fe Ry. Co. v. United States Dist. Court for the Dist. of

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Montana, 408 F.3d 1142, 1149 (9th Cir. 2005) (discussing assertion of privilege); Soto v. City of

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Concord, 162 F.R.D. 603, 616 (N.D. Cal. 1995) (recognizing a constitutionally-based right of privacy

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that can be raised in discovery); see also Garcia v. Clark, No. 1:10-CV-00447-LJO-DLB PC, 2012

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WL 1232315, at *6 n.5 (E.D. Cal. Apr. 12, 2012) (noting inmate=s entitlement to inspect discoverable

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information may be accommodated in ways which mitigate institutional safety concerns); Robinson v.

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Adams, No. 1:08-cv-01380-AWI-BAM PC, 2012 WL 912746, at *2-3 (E.D. Cal. Mar. 16, 2012)

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(issuing protective order regarding documents containing information which implicated the safety and

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security of the prison); Orr v. Hernandez, No. CV-08-0472-JLQ, 2012 WL 761355, at *1-2 (E.D. Cal.

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Mar. 7, 2012) (addressing requests for protective order and for redaction of information asserted to

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risk jeopardizing safety and security of inmates or the institution if released); Womack v. Virga, No.

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CIV S-11-1030 MCE EFB P, 2011 WL 6703958, at *5-6 (E.D. Cal. Dec. 21, 2011) (requiring

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defendants to submit withheld documents for in camera review or move for a protective order).

See Fed. R. Civ. P. 26(c); Seattle Times Co. v.

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However, this is a civil action to which the Federal Rules of Civil Procedure apply. The

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discovery process is subject to the overriding limitation of good faith, and callous disregard of

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discovery responsibilities cannot be condoned. Asea, Inc. v. Southern Pac. Transp. Co., 669 F.2d

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1242, 1246 (9th Cir. 1981) (quotation marks and citation omitted). “Parties may obtain discovery

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regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to

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the needs of the case, considering the importance of the issues at stake in the action, the amount in

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controversy, the parties’ relative access to relevant information, the parties’ resources, the importance

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of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery

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outweighs its likely benefit.” Fed R. Civ. P. 26(b)(1).

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

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bears the burden of demonstrating why the objections are not justified. Grabek v. Dickinson, No. CIV

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S-10-2892 GGH P, 2012 WL 113799, at *1 (E.D. Cal. Jan. 13, 2012); Womack, 2011 WL 6703958, at

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*3; Mitchell v. Felker, No. CV 08-119RAJ, 2010 WL 3835765, at *2 (E.D. Cal. Sep. 29, 2010); Ellis

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v. Cambra, No. 1:02-cv-05646-AWI-SMS PC, 2008 WL 860523, at *4 (E.D. Cal. Mar. 27, 2008).

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This requires the moving party to inform the Court which discovery requests are the subject of the

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motion to compel, and, for each disputed response, why the information sought is relevant and why

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the responding party=s objections are not meritorious. Grabek, 2012 WL 113799, at *1; Womack,

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2011 WL 6703958, at *3; Mitchell, 2010 WL 3835765, at *2; Ellis, 2008 WL 860523, at *4.

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

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procedures, Plaintiff is entitled to leniency as a pro se litigation; therefore, to the extent possible, the

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Court endeavors to resolve his motion to compel on its merits. Hunt v. County of Orange, 672 F.3d

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606, 616 (9th Cir. 2012); Surfvivor Media, Inc. v. Survivor Productions, 406 F.3d 625, 635 (9th Cir.

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

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Defendants move this Court for an order compelling Plaintiff to provide full and complete

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responses to each of Defendants’ interrogatories number 1, and requests for production numbers 1, 2,

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3, 4, 5, and 7. Defendants also request the Court extend the deadline to file an exhaustion related

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motion for summary judgment until sixty days after Plaintiff provides complete responses.

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In opposition, Plaintiff argues that all documentation is in Defendants’ possession, control or
equally available to them.
In reply, Defendants argue that nothing in Plaintiff’s opposition justifies his refusal to respond

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to Defendants’ written discovery; nor any reason why he believes Defendants have not acted diligently

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with respect to the defense of exhaustion of administrative remedies.

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As previously stated, the Court issued the discovery and scheduling order on March 8, 2017,

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and set June 8, 2017, as the deadline for motions for summary judgment for failure to exhaust the

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administrative remedies. (ECF No. 37.) Defendants submit that on March 10, 2017, they each

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propounded a first set of interrogatories, consisting of three to four questions, dealing primarily with

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Plaintiff’s exhaustion of administrative remedies. (Mark Decl. ¶ 2, Ex. A; ECF No. 38-2.)

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Defendants also propounded their first request for production of documents, consisting of six requests.

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(Id., Ex. B.) Defendants received Plaintiff’s responses to the discovery on March 29, 2017. (Mark

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Decl. ¶ 2, Exs. A & C.) On April 6, 2017, Defendants propounded a second request for production

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and a second set of interrogatories. (Mark Decl. ¶ 5, Exs. F-G.)

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On April 5, 2017, Defendants’ counsel sent Plaintiff a letter addressing deficiencies in

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Plaintiff’s initial responses and requested supplemental responses. (Mark Decl. ¶ 3, Ex. D.)

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Plaintiff’s supplemental responses were unverified and Defendants argue did not cure many of the

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deficiencies in his initial responses. (Mark Decl. ¶ 4, Ex. E.) Defendants further argue that Plaintiff’s

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responses to their second request for production and second set of interrogatories repeated the same

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type of deficient responses about which Defendants had already advised Plaintiff. (Mark Decl., Exs.

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D & E.)

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A.

Interrogatory Responses

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“Each interrogatory must, to the extent it is not objected to, be answered separately and fully in

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writing under oath.” Fed. R. Civ. P. 33(b)(3). “The grounds for objecting to an interrogatory must be

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stated with specificity. Any ground not stated in a timely objection is waived unless the court, for

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good cause, excuses the failure.” Fed. R. Civ. P. 33(b)(4). Finally, responses to interrogatories must

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be verified. Fed. R. Civ. P. 33(b)(5) (“The person who makes the answers must sign them, and the

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attorney, who objects must sign any objections.”)
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a.

Verification of Responses

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Plaintiff did not verify his supplemental responses to Defendants’ first set of interrogatories,

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nor his responses to Defendants Biter’s second set of interrogatories. Defendants’ request for Plaintiff

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to provide verified supplemental responses to all of their interrogatories must be granted. Fed. R. Civ.

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P. 33(b)(5). Accordingly, the Court will direct Plaintiff to provide verified supplemental responses.

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Plaintiff’s responses to Defendants’ interrogatories must be dated and signed by Plaintiff, attesting

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under penalty of perjury to facts known by Plaintiff, in substantially the following form: “I declare

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under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).”

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b.

Further Responses to Defendants’ First Sets of Interrogatories No. 1

As previously stated, Defendants move for Plaintiff to provide further responses to their first
set of interrogatories number one.

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Interrogatory No. 1: Each set of interrogatories served by each Defendant asked, with respect

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to that propounding Defendant: “Identify by log number each and every inmate appeal submitted by

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you that you claim exhausted your administrative remedies for your claims against Defendant [] in this

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action.” (Mark Decl., Ex A.)

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Plaintiff’s Initial Response: “Please refer to all inmate appeals currently in evidence. See
Exhibit A, pgs. 2, 3d.” (Id.)
Plaintiff’s Supplemental Response: “Each and every 602 inmate appeal submitted by me as to

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all defendants that’s currently into evidence i[llegible] say exhausted administrative remedies.” (Mark

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Decl., Ex. E.)

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Defendants are correct that Plaintiff’s initial and supplemental responses are evasive and

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deficient because he did not identify by log number each and every inmate appeal he claims exhausted

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his administrative remedies as requested. Plaintiff’s vague reference to documents “currently in

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evidence” is evasive because there are no documents “in evidence” at this time, and a general

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reference to documents is non-responsive. See Rainbow Pioneer No. 44-18-04-A v. Hawaii-Nevada,

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Inv. Corp., 711 F.2d 902, 906 (9th Cir. 1983). An evasive or incomplete answer must be treated as a

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failure to respond. Fed. R. Civ. P. 37(b)(4). Although Defendants bear the burden to raise and prove

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the absence of exhaustion, Defendants are nonetheless entitled to discovery from Plaintiff regarding
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his exhaustion efforts. Accordingly, Defendants’ motion to compel shall be granted, and Plaintiff will

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be directed to provide a complete, verified response to each of the Defendants’ interrogatories number

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one.

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B.

Requests for Production of Documents

Defendants submit that Plaintiff has not provided sufficient responses to six of the seven
requests for production Defendants have propounded to date.

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1.

Requests for Production Nos. 1, 2, and 7

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a.

Request for Production No. 1:

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“A copy of all documents related to your efforts to exhaust administrative remedies with

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respect to your claims against the Defendants in this lawsuit, including but not limited to any inmate

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appeals you identified in your responses to Defendant Tarnoff’s, Lawless’s, Biter’s, Acebedo’s and

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Castro’s interrogatories and any related responses or rejection or screen-out letters at any level of

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review.”

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Plaintiff’s Initial Response: “See Attachment A, one order Kern County Superior Court, one
letter dated 8-8-16.” (Mark Decl., Ex. C (Pl.’s RFP responses including documents produced).)
Plaintiff’s Supplemental Response: “The document you request is currently in evidence based

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the ‘Order Finding Service of First Amended Complaint Appropriate as to Defendants Tarnoff,

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Acebedo, Castro, Lawless, and Biter dated February 16, 2016. On page two it clearly states ‘All

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CDCR form 602 documentation submitted in relation to this case,” therefore all defendants have

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copies of all 602 appeals in this case. See attachment #1 order dated 2-16-16.” (Mark Decl., Ex. E.)

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b.

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“A copy of all documents related to your allegations that you notified any or all of the

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Request for Production No. 2:

Defendants that you were being threatened by Blood gang members.”
Plaintiff’s Initial Response: “The evidence requested is currently in evidence. 602 appeals.”
(Mark Decl., Ex. C.)
Plaintiff’s Supplemental Response: “All documents that is requested are in the possession of
defendants based on the attached order dated 2-16-16. See attachment #1” (Mark Dec., Ex. E.)

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Request for Production No. 7 (Defs’ Second RFP):

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“All documents relating to any attempts by you to initiate CDCR’s process for disassociating

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from the Blood Security Threat Group.” (Mark Decl., Ex. G.)
Plaintiff’s Response: “The document you request is currently in evidence based the ‘Order

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Finding Service of First Amended Complaint Appropriate as to Defendants Tarnoff, Acebedo, Castro,

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Lawless, and Biter dated February 16, 2016. On page two it clearly states ‘All CDCR form 602

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documentation submitted in relation to this case,’ therefore all defendants have copies of all 602

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appeals in this case. See attachment order dated 2-16-16.” (Mark Decl, Ex. E.)

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Ruling: Defendants’ motion to compel shall be granted. The documents Plaintiff’s initially

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produced, a Kern County Superior Court order and a letter dated August 8, 2016, are non-responsive

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to the requests. (Mark Decl., Ex. C.) Furthermore, Plaintiff’s supplemental responses that the

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documents requested are in the possession of the Defendants based on a service order dated February

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16, 2016, is non-responsive. Although the Court did direct Plaintiff to submit “[a]ll CDCR Form 602

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documentation submitted in relation to this case[,]” the request was made to facilitate the United States

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Marshal with service of process on each of the named Defendants. (ECF No. 17, Order at 2:20-21.)

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Defendants were not served with such documentation as they were not yet parties to the action. In

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addition, any of the form 602 documentation submitted by Plaintiff was forwarded to the Marshal’s

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office and not retained by this Court or placed on the docket. In any event, Plaintiff is still obligated to

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identify and provide such documentation to Defendants in response to their requests for production,

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whether previously submitted to the Court or retained in his prison file. Fed. R. Civ. P. 34; Bryant v.

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Armstrong, 285 F.R.D. 596, 603 (S.D. Cal. 2012).

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2.

Requests for Production Nos. 3, 4, and 5

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Defendants submit that Plaintiff has produced no documents responsive to these requests and

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his contention regarding an error in his First Amended Complaint does not excuse him from

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responding.

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

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Fed. R. Civ. P. 34(a)(1) (quotation marks omitted). AProperty is deemed within a party=s >possession,

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custody, or control= if the party has actual possession, custody, or control thereof or the legal right to

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obtain the property on demand.@ Allen v. Woodford, No. CV-F-05-1104 OWW LJO, 2007 WL

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

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

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

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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 with

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

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exercised due diligence, Uribe v. McKesson, No. 08cv1285 DMS (NLS), 2010 WL 892093, at *2-3

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(E.D. Cal. Mar. 9, 2010). If responsive documents do exist but the responsive party claims lack of

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possession, control, or custody, the party must so state with sufficient specificity to allow the Court (1)

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to conclude that the responses were made after a case-specific evaluation and (2) to evaluate the merit

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of that response. Ochotorena v. Adams, No. 1:05-cv-01525-LJO-DLB (PC), 2010 WL 1035774, at

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*3-4 (E.D. Cal. Mar. 19, 2010).

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objections do not suffice. Fed. R. Civ. P. 34(b)(2)(B), (C); Burlington N. & Santa Fe Ry. Co., 408

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F.3d at 1149.

As with previously discussed forms of discovery, boilerplate

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a.

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“A copy of any medical records evidencing any injuries you claim you sustained from the

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Request for Production No. 3

attack by an inmate on August 10, 2011 that you allege in your First Amended Complaint.”

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b.

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“A copy of any documents relating to the disciplinary hearing pertaining to the attack on

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Request for Production No. 4

August 10, 2011 that you allege in your First Amended Complaint.”

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Plaintiff’s Initial Response: “A copy of the RVR for Chad Elie.” (Mark Decl., Ex. C.)

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Plaintiff’s Supplemental Response: “Plaintiff has misstated on the complaint as to the date of

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8-10-11. The date of the incident was 10-18-11.” (Mark Decl., Ex. E.)
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“A copy of any documents supporting your claims for damages resulting from the attack on

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Request for Production No. 5

August 10, 2011 that you allege in your First Amended Complaint.”
Plaintiff’s Initial Response: “The evidence requested is currently in the possession of the
Defendants.” (Mark Decl., Ex. C.)
Plaintiff’s Supplemental Response: “Plaintiff has misstated in his complaint on the date of 810-11. The date of the incident was 10-18-11.” (Mark Decl., Ex. E.)

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Ruling: Defendants’ motion to compel shall be granted. Defendants’ requests for production

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numbers 3, 4, and 5 seek responsive documents that are relevant to Plaintiff’s claims and injuries, or

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would otherwise aid in their defense of this case. Plaintiff only identified and produced one document

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in response to request number 4, “a copy of the RVR for Chad Elie” and failed to produce any

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documents in response to requests numbers 3 and 5. (Mark Decl., Ex. C.) Accordingly, Plaintiff’s

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responses were insufficient. Indeed, Defendants notified Plaintiff that the RVR produced was for an

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incident on October 18, 2011, and Plaintiff responded that the date of the incident alleged in the

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complaint is erroneous as the true date was October 18, 2011, not August 10, 2011. (Mark Decl., Ex.

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E.) Plaintiff’s clarification of the date of the 2011 incident does not excuse his compliance with

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Defendants’ requests. Plaintiff is required to produce documents fairly covered by Defendants’

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requests, and based on Plaintiff’s clarification of the exact date of the alleged incident, Plaintiff was

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required to produce documents responsive to these requests based on the attack as alleged in the first

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amended complaint. Furthermore, the document produced in response to request 4, is a copy another

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inmate’s disciplinary, which is not responsive to Defendants’ requests pertaining to Plaintiff’s

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disciplinary hearing for the 2011 attack. Accordingly, Plaintiff will be required to provide

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supplemental responses to requests 3, 4, and 5.

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C.

Modification of the Scheduling Order

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The Court has discretion to modify a deadline in a scheduling order for good cause. Fed. R.

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Civ. P. 16(b)(4). The touchstone for good cause is whether the party seeking the modification has

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been diligent. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992).

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Pursuant to the Court’s March 8, 2017, discovery and scheduling order, the deadline to file an

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exhaustion-related motion for summary judgment expires on June 8, 2017. (ECF No. 37.) Based on

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Defendants’ discovery requests, they have acted diligently in seeking to comply with the June 8, 2017,

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deadline to file an exhaustion-related motion for summary judgment. Defendants served their first set

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of discovery requests relating to Plaintiff’s exhaustion efforts within two days of discovery opening.

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(Mark Decl. ¶ 2.) After Plaintiff responded to the initial requests, Defendants promptly conferred with

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Plaintiff in an attempt to avoid the filing of a motion to compel. (Mark Decl. ¶ 3, Ex. D.) Thereafter,

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Plaintiff served supplemental responses, which Defendants received on or about April 25, 2017.

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Because Defendants believed Plaintiff’s supplemental responses were deficient, the instant motion to

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compel was filed on May 10, 2017. Defendants submit that proper responses to their discovery

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requests are necessary in order to evaluate whether a motion for summary judgment for failure to

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exhaust the administrative remedies is proper. (Mark Decl. ¶ 6.)
Based on the showing of good cause, the Court will extend the deadline for filing an

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exhaustion-related motion for summary judgment.

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III.

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CONCLUSION AND ORDER
Based on the foregoing, Defendants’ motion to compel and request for modification of the

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scheduling order are GRANTED, and it is HEREBY ORDERED that:
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Within thirty (30) days from the date of service of this order, Plaintiff shall file

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verified, supplemental responses to all of Defendants’ interrogatories; a further verified response to

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Defendants’ interrogatories number 1; and further responses to Defendants’ requests for production

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numbers 1, 2, 3, 4, 5, and 7, as explained herein;
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The deadline for the filing of a motion for summary judgment for failure to exhaust the

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administrative remedies is extended September 8, 2017;

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All other provisions of the Court’s March 8, 2017, scheduling order remain in full

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force and effect.

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IT IS SO ORDERED.

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Dated:

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June 1, 2017
UNITED STATES MAGISTRATE JUDGE

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