Doster v. Beard et al

Filing 51

ORDER DENYING 31 REQUEST FOR SUBPOENA; DENYING 34 MOTION TO DENY OR STAY DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; DENYING 44 , 47 MOTION FOR LEAVE TO PROPOUND ADDITIONAL INTERROGATORIES. ORDER FOR PLAINTIFF TO FILE OPPOSITION TO 29 MOTION FOR SUMMARY JUDGMENT WITHIN 21- DAYS signed by Magistrate Judge Gary S. Austin on 4/13/2017. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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1:15-cv-01415-DAD-GSA-PC

DAMIAN T. DOSTER,

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ORDER DENYING PLAINTIFF’S
REQUEST FOR SUBPOENA
(ECF No. 31.)

Plaintiff,

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vs.

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BEARD, et al.,

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ORDER DENYING PLAINTIFF’S
MOTION TO DENY OR STAY
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
(ECF No. 34.)

Defendants.

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ORDER DENYING PLAINTIFF’S
MOTION FOR LEAVE TO PROPOUND
ADDITIONAL INTERROGATORIES
(ECF No. 44, also resolves No. 47.)

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ORDER FOR PLAINTIFF TO FILE
OPPOSITION TO DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
WITHIN 21 DAYS

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TWENTY-ONE DAY DEADLINE

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I.

BACKGROUND

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Damian T. Doster (“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. This case now proceeds

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with Plaintiff’s First Amended Complaint filed on March 25, 2016, against defendants Chief

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Deputy Warden F. Vasquez, Yard Captain P. Llamas, Sgt. Sarah Leon, and Maintenance
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Engineer Ric Pavich (collectively, “Defendants”), on Plaintiff’s claims for adverse conditions

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of confinement under the Eighth Amendment and related negligence claims. (ECF No. 13.)

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On September 30, 2016, Defendants filed a motion for summary judgment for

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Plaintiff’s failure to exhaust administrative remedies before filing suit. (ECF No. 29.) Plaintiff

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has not filed an opposition, and the motion is pending.

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On October 13, 2016, Plaintiff filed a request for a subpoena duces tecum directed to a
third party witness. (ECF No. 31.)

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On October 26, 2016, Plaintiff filed a motion to deny or stay Defendants’ motion for

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summary judgment under Rule 56 to allow Plaintiff more time for discovery to prepare his

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opposition to Defendants’ motion for summary judgment. (ECF No. 34.) Defendants have not

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filed an opposition.

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On January 27, 2017, Plaintiff filed a motion for leave to propound additional

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interrogatories. (ECF No. 44.) On February 16, 2017, Defendants filed an opposition. (ECF

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No. 45.)

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Now before the court are Plaintiff’s request for subpoena, motion to deny or defer

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ruling on Defendants’ motion for summary judgment, and motion to propound additional

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interrogatories.

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II.

MOTION FOR SUBPOENA

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Plaintiff requests the court to send him a subpoena duces tecum to compel third party

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witness Inmate Casey L. Rowland, CDCR #AN5578, to testify and produce documents.

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Plaintiff asserts that Inmate Rowland has relevant testimony and documentation.

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Subject to certain requirements, Plaintiff is entitled to the issuance of a subpoena

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commanding the production of documents from a non-party, and to service of the subpoena by

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the United States Marshal. Fed. R. Civ. P. 45; 28 U.S.C. 1915(d). However, the court will

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consider granting such a request only if the documents sought from the non-party are not

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equally available to Plaintiff and are not obtainable from Defendants through a request for

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production of documents. Fed. R. Civ. P. 34.

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Plaintiff has not specified what documentation he seeks to obtain from Inmate Rowland

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or made a showing in the motion that the documents are only obtainable through that third

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party.1 Nor has Plaintiff shown good cause for the court to compel Inmate Rowland or any

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other witness to appear and testify at this stage of the proceedings. If this case proceeds to trial,

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the court will instruct Plaintiff at that time how to request incarcerated witnesses to testify at

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trial. Plaintiff is advised that he is not precluded from asking another inmate to provide a

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declaration, subject to prison rules and procedures.
Based on these reasons, Plaintiff’s request for a subpoena shall be denied.

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III.

MOTION TO DENY OR DEFER RULING ON MOTION FOR SUMMARY

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JUDGMENT

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Rule 56(d)2 of the the Federal Rules of Civil Procedure provides, “[i]f a nonmovant [in

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a motion for summary judgment] shows by affidavit or declaration that, for specified reasons, it

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cannot present facts essential to justify its opposition, the court may (1) defer considering the

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motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3)

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issue any other appropriate order.” Fed. R. Civ. P. 56(d). In order to gain a continuance under

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Rule 56(d), Plaintiff must identify by affidavit the specific facts that further discovery would

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reveal, and explain why those facts would preclude summary judgment. Tatum v. City and

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County of Sacramento, 441 F.3d 1090, 1100 (9th Cir. 2006); Tuvalu v. Woodford, No. CIV S-

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04-1724 RRB KJM P, 2007 WL 2900175, at 1-4 (E.D. Cal. Sept. 28, 2007).

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Plaintiff requests the court to either deny Defendants’ motion for summary judgment or

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defer ruling on the motion because he needs additional time to conduct discovery. Plaintiff

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seeks more time to “unearth Defendants’ pattern of negligence, failure, and sadistic deliberate

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indifference against inmates.”

(ECF No. 34 at 10-11.)

Plaintiff seeks evidence that

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Plaintiff asserts in his request for subpoena that he was provided a copy of his 602 appeal no.
15-3990-9 from his C-file, but a page was missing. In the event that Plaintiff seeks to obtain the missing page
from Inmate Rowland, Plaintiff needs to inform the court why Inmate Rowland is likely to have a more complete
copy of Plaintiff’s appeal than what was already found in Plaintiff’s C-file.

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Plaintiff refers to Rule 56(f). However, it appears from Plaintiff’s motion that he seeks relief

under Rule 56(d).
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“Defendants and their agents have intentionally removed documentation [602-A additional

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page] to evade libility [sic] for the consequences of subjecting me to unconstitutional

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conditions of confinement.” (Id. at 7.) Plaintiff asserts that he has been diligent in pursuing

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discovery because on September 2, 2016, he requested access to his C-file and medical file.

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Plaintiff also represents that on August 21, 2016, he served a request for production of

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documents on Defendant Vasquez, and on August 28, 2016, he propounded interrogatories and

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a request for admissions on all of the Defendants.

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Defendants seek summary judgment on the ground that Plaintiff failed to exhaust his

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administrative remedies for some of his claims before filing suit. Defendants contend that

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during the relevant time, Plaintiff submitted and exhausted only one appeal addressing his

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allegations in the Complaint, Appeal CSPC-5-15-03990, in which he stated that he had been

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harmed by prison officials as a result of not having any running hot or warm water in his cell or

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the shower for 55 days. Defendants assert that Plaintiff failed to mention issues about cold

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drinking water, raw sewage overflowing into Plaintiff’s cell, or denial of cleaning supplies in

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Appeal CSPC-5-15-03990. Defendants argue that Plaintiff only exhausted his remedies for his

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hot water claim, and did not exhaust his remedies for his claims about cold drinking water, raw

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sewage overflowing into his cell, or denial of cleaning supplies. Defendants also argue that

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Plaintiff did not exhaust his remedies for his claims against Defendants Pavich and Vasquez

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with Appeal CSPC-5-15-03990, because he did not mention those Defendants in the appeal or

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suggest that they had engaged in any wrongful conduct.

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The only issue in the motion for summary judgment is whether Plaintiff exhausted his

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administrative remedies for his claims about cold drinking water, raw sewage overflowing into

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his cell, or denial of cleaning supplies, and for his claims against Defendants Pavich and

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Vasquez. To defend against Defendants’ motion for summary judgment, Plaintiff must either

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show that he exhausted his remedies, or show that he exhausted all of the remedies available to

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him. Plaintiff has not identified any discovery he has diligently pursued but was unable to

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obtain during the discovery phase for this case that is likely to exist and essential to his

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opposition to the motion. Plaintiff only contends, in his motion to defer the court’s ruling, that
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he needs more time to unearth evidence of “Defendants’ pattern of negligence, failure, and

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sadistic deliberate indifference against inmates,” and to show that “Defendants and their agents

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have intentionally removed documentation [602-A additional page] to evade libility [sic] for

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the consequences of subjecting me to unconstitutional conditions of confinement.” (ECF No.

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34 at 7, 10-11.) None of this proposed discovery is essential to defend against Defendants’

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motion for summary judgment. Plaintiff states that he needs time for discovery concerning

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Defendants’ negligence, deliberate indifference, and subjecting Plaintiff to unconstitutional

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conditions of confinement, which is not relevant to his defense against summary judgment.
Based on the foregoing, Plaintiff’s motion to deny or stay Defendants’ motion for

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summary judgment shall be denied.

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IV.

MOTION TO PROPOUND ADDITIONAL INTERROGATORIES

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A.

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Pursuant to Rule 33(a) of the Federal Rules of Civil Procedure, “[u]nless otherwise

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stipulated or ordered by the court, a party may serve on any other party no more than 25 written

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interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be

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granted to the extent consistent with Rule 26(b)(1) and (2).” Fed. R. Civ. P 33(a). Rule 26(b)

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provides that “[b]y order, the court may alter the limits in these rules on the number of . . .

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interrogatories.” Fed. R. Civ. P. 26(b)(2)(A). However, “the court must limit the frequency or

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extent of discovery . . . if it determines that (i) the discovery sought is unreasonably cumulative

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or duplicative, or can be obtained from some other source that is more convenient, less

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burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to

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obtain the information by discovery in the action; or (iii) the proposed discovery is outside the

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scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C).

Legal Standards

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“‘[B]road discretion is vested in the trial court to permit or deny discovery, and its

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decision to deny discovery will not be disturbed except upon the clearest showing that denial of

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discovery results in actual and substantial prejudice to the complaining litigant.’” Dichter-Mad

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Family Partners, LLP v. U.S., 709 F.3d 749, 751 (9th Cir. 2013) (quoting Hallett v. Morgan,

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296 F.3d 732, 751 (9th Cir. 2002) (alteration omitted)); accord Goehring v. Brophy, 94 F.3d
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1294, 1305 (9th Cir. 1996)). “A plaintiff seeking discovery must allege ‘enough fact to raise a

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reasonable expectation that discovery will reveal’ the evidence he seeks.” Dichter-Mad Family

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Partners, LLP, 709 F.3d at 751 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556,

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127 S.Ct. 1955 (2007)); see also Gager v. United States, 149 F.3d 918, 922 (9th Cir. 1998) (“It

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is well-established that the burden is on the party seeking to conduct additional discovery to put

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forth sufficient facts to show that the evidence sought exists.”)

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Parties’ Positions

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Plaintiff requests leave to propound twenty additional interrogatories upon each of the

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four Defendants. Plaintiff previously served more than twenty-five interrogatories on each of

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the four Defendants, but he asserts that because he is unskilled in civil law, he was not

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descriptive enough in the interrogatories and therefore did not get the responses he needs.

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Defendants oppose Plaintiff’s motion, arguing that any additional interrogatories would

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be untimely because the court’s discovery and scheduling order required the parties to serve

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written discovery at least thirty-five days before the December 2, 2016 discovery cut-off date.

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Defendants also argue that Plaintiff has not shown good cause or diligence in seeking to re-

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open discovery. Defendants claim they will be prejudiced if Plaintiff’s motion is granted,

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because they have had an exhaustion-related motion for summary judgment pending since

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September 30, 2016. Defendants cite the court’s finding in Bey v. Hedgepeth, No. 1:08-cv-

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01718-LJO-GSA-PC, 2010 WL 3034494, at *1 (E.D. Cal. Aug. 2, 2010) (finding good cause to

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stay discovery where a motion to dismiss for failure to exhaust was pending and where

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discovery requests already served had no bearing on whether Plaintiff exhausted his

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administrative remedies).

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Discussion

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On July 5, 2016, the court issued its discovery and scheduling order establishing a

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deadline of December 2, 2016, for the parties to conduct and compete discovery. (ECF No.

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19.) Plaintiff has served more than twenty-five interrogatories on each of the four defendants

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in this action and received Defendants’ responses. When a party seeks leave to serve additional

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interrogatories, that party must make a particularized showing of why that discovery is
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necessary. Waterbury v. Scribner, No. 1:05-cv-0764 OWW DLB PC, 2008 WL 2018432, at *8

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(E.D. Cal. May 8, 2008) (citing Archer Daniels Midland Co. v. Aon Risk Servs., Inc. of

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Minnesota, 187 F.R.D. 578, 586 (D. Minn. 1999)). Pursuant to Rule 33(a) of the Federal Rules

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of Civil Procedure, once the moving party has made a particularized showing, the Court shall

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grant leave if it is consistent with Rule 26(b)(2).

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Plaintiff’s motion is untimely and deficient. Discovery in this case closed on December

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2, 2016, more than a month before Plaintiff filed his motion for additional interrogatories.

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Plaintiff alleges that he wants to revise his prior interrogatories to make them more descriptive,

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so Defendants will respond with the answers he needs. Plaintiff has not explained the nature or

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subject matter of the additional interrogatories nor submitted the proposed interrogatories with

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the motion for review by the court. Therefore, the court cannot adequately address Plaintiff’s

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need to serve additional interrogatories. Plaintiff’s motion shall be denied.

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V.

PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

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Defendants’ motion for summary judgment was filed on September 30, 2016, more than

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five months ago, and the discovery phase for this case is over. Plaintiff has not filed any

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opposition to the motion for summary judgment. Under Local Rule 230(l), Plaintiff is allowed

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twenty-one days in which to file an opposition or notice of non-opposition. By this order,

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Plaintiff shall be required to file an opposition or a notice of non-opposition to the motion for

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summary judgment within twenty-one days.

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VI.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

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DENIED;

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2.

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Plaintiff’s motion to deny or defer ruling on Defendants’ motion for summary
judgment, filed on October 26, 2016, is DENIED;

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3.

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Plaintiff’s request for the issuance of a subpoena, filed on October 13, 2016, is

Plaintiff’s motion to propound additional interrogatories upon Defendants, filed
on January 27, 2017, is DENIED; and

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4.

Plaintiff is required to file an opposition or a notice of non-opposition to

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Defendants’ motion for summary judgment within twenty-one days of the date

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of service of this order.

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IT IS SO ORDERED.
Dated:

April 13, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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