Harris v. German et al

Filing 89

ORDER DENYING 75 Motion to Compel, signed by Magistrate Judge Gary S. Austin on 2/5/2020. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DEVONTE HARRIS,

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Plaintiff,

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vs.

1:15-cv-01462-DAD-GSA-PC
ORDER DENYING PLAINTIFF’S MOTION
TO COMPEL
(ECF No. 75.)

HUMBERTO GERMAN, et al.,

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Defendants.

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I.

BACKGROUND

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Devonte Harris (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with the First

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Amended Complaint filed by Plaintiff on March 14, 2016, against defendants Correctional

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Officer (C/O) Humberto German, C/O Philip Holguin, and C/O R. Burnitzki (collectively,

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“Defendants”), for use of excessive force in violation of the Eighth Amendment; and, against

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defendant C/O Philip Holguin for retaliation in violation of the First Amendment. (ECF No. 8.)

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On March 19, 2018, the court issued a Discovery and Scheduling Order setting out pretrial

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deadlines for the parties, including a deadline of August 19, 2018, for completion of discovery.

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(ECF No. 37.) In the court’s order, the parties were advised that “[a]ll discovery requests must

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be served at least 60 days before the discovery deadline.” (Id. at 2:6.) (emphasis added)
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On August 23, 2018, Plaintiff filed a motion for extension of the deadlines in the

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Discovery and Scheduling Order, (ECF No. 40), and on September 21, 2018, the court granted

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the motion and re-opened discovery setting new deadlines including a discovery deadline of

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November 30, 2018, (ECF No. 4.). The parties were advised that “[a]ll other provisions of the

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court’s March 19, 2018 Discovery and Scheduling Order remain the same.” (Id. at 3 ¶ 4.)

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On April 25, 2019, the court reopened discovery again and set new deadlines, including

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a discovery deadline of August 30, 2019. (ECF No. 65.) The parties were again advised that

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“[a]ll other provisions of the court’s March 19, 2018 Discovery and Scheduling Order remain the

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same.” (Id. at 2 ¶ 4.)

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On August 23, 2019, Plaintiff filed a motion for extension of the discovery deadline.

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(ECF No. 72.) On October 15, 2019, the court extended the discovery deadline to December 18,

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2019, but only for the limited purpose of Plaintiff arranging and conducting depositions. (ECF

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No. 80.)

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On September 20, 2019, Plaintiff filed a motion to compel responses to interrogatories.

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(ECF No. 75.) On October 10, 2019, Defendants filed an opposition to the motion. (ECF No.

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79.) Plaintiff has not filed a reply to the opposition, and the time for filing such reply has expired.

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Plaintiff’s motion to compel is now before the court. Local Rule 230(l).

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II.

MOTION TO COMPEL

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Legal Standards -- Federal Rules of Civil Procedure 26(b), 33(a), 36, and 37(a)

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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 and proportional to the needs of the case, considering the importance

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of the issues at stake in the action, the amount in controversy, the parties’ relative access to

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relevant information, the parties’ resources, the importance of the discovery in resolving the

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issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

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Information within this scope of discovery need not be admissible in evidence to be

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discoverable.” Fed. R. Civ. P. 26(b)(1).

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Under Rule 33(a), “[u]nless otherwise stipulated or ordered by the court, a party may

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serve on any other party no more than 25 written interrogatories, including all discrete subparts.

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Fed. R. Civ. P. 33(a)(1). An interrogatory may relate to any matter that may be inquired into

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under Rule 26(b), and [a]n interrogatory is not objectionable merely because it asks for an opinion

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or contention that relates to fact or the application of law to fact. Fed. R. Civ. P. 33(a)(2)

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(quotation marks omitted). Each interrogatory must, to the extent it is not objected to, be

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answered separately and fully in writing under oath, Fed. R. Civ. P. 33(b)(3), and the grounds for

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objecting to an interrogatory must be stated with specificity, Fed. R. Civ. P. 33(b)(4); Davis v.

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Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981). Any ground not stated in a timely objection is

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waived unless the court, for good cause, excuses the failure. Fed. R. Civ. P. 33(c). The

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responding party shall use common sense and reason. E.g., Collins v. Wal-Mart Stores, Inc., No.

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06-2466-CM-DJW, 2008 WL 924935, *8 (D. Kan. Apr. 30, 2008).

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interrogatories cannot limit his answers to matters within his own knowledge and ignore

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information immediately available to him or under his control. Essex Builders Group, Inc. v.

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Amerisure Insurance Co., 230 F.R.D. 682, 685 (M.D. Fla. 2005). A responding party is not

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generally required to conduct extensive research in order to answer an interrogatory, but a

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reasonable effort to respond must be made. Gorrell v. Sneath, 292 F.R.D. 629, 629 (E.D. Cal.

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Apr. 5, 2013); L.H. v. Schwarzenegger, No. S-06-2042 LKK GGH, 2007 WL 2781132, *2 (E.D.

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Cal. Sept. 21, 2007). If a party cannot furnish details, he should say so under oath and say why

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and set forth the efforts used to obtain the information and cannot plead ignorance to information

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that is from sources within his control. Milner v. National School of Health Technology, 73

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F.R.D. 628, 632 (E.D. Pa. 1977). “However, where the answer states that no record exists, the

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court cannot compel the impossible.” Id. at 633 (citing Moss v. Lane Co., 50 F.R.D. 122, 128

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(W.D. Va. 1970), aff’d in part, remanded in part, 471 F.2d 853 (4th Cir. 1973)). A sworn answer

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indicating a lack of knowledge and no means of obtaining knowledge is not objectionable.

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Milner, 73 F.R.D. at 633 (citing Brennan v. Glenn Falls Nat. Bank & Trust Co., 19 F.R.Serv.2d

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721, 722-23 (N.D.N.Y. 1974)). The responding party has a duty to supplement any responses if

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A party answering

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the information sought is later obtained or the response provided needs correction. Fed. R. Civ.

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P. 26(e)(1)(A).

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Rule 36 provides for requests for admissions as follows: “A party may serve on any other

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party a written request to admit, for purposes of the pending action only, the truth of any matters

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within the scope of Rule 26(b)(1) relating to facts, the application of law to fact, or the opinions

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about either; and the genuineness of any described documents. Each matter must be separately

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stated. [¶] A matter is admitted unless, within 30 days after being served, the party to whom the

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request is directed serves on the requesting party a written answer or objection addressed to the

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matter and signed by the party or its attorney . . . If a matter is not admitted, the answer must

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specifically deny it or state in detail why the answering party cannot truthfully admit or deny it.

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A denial must fairly respond to the substance of the matter; and when good faith requires that a

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party qualify an answer or deny only a part of a matter, the answer must specify the part admitted

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and qualify or deny the rest. The answering party may assert lack of knowledge or information

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as a reason for failing to admit or deny only if the party states that it has made reasonable inquiry

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and that the information it knows or can readily obtain is insufficient to enable it to admit or

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deny. The grounds for objecting to a request must be stated . . . [¶] The requesting party may

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move to determine the sufficiency of an answer or objection. Unless the court finds an objection

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justified, it must order that an answer be served. On finding that an answer does not comply with

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this rule, the court may order either that the matter is admitted or that an amended answer be

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served . . . Rule 37(a)(5) applies to an award of expenses.” Fed. R. Civ. P. 36(a) (emphasis

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added).

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Under Rule 37 of the Federal Rules of Civil Procedure, “[a] party seeking discovery may

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move for an order compelling an answer, designation, production, or inspection.” Fed. R. Civ.

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P. 37(a)(3)(B). The court may order a party to provide further responses to an “evasive or

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incomplete disclosure, answer, or response.” Fed. R. Civ. P. 37(a)(4). “District courts have

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‘broad discretion to manage discovery and to control the course of litigation under Federal Rule

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of Civil Procedure 16.’” Hunt v. County of Orange, 672 F.3d 606, 616 (9th Cir. 2012) (quoting

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Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828, 833 (9th Cir. 2011)). Generally, if the
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responding party objects to a discovery request, the party moving to compel bears the burden of

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demonstrating why the objections are not justified. E.g., Grabek v. Dickinson, No. CIV S–10–

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2892 GGH P, 2012 WL 113799, at *1 (E.D. Cal. Jan. 13, 2012); Ellis v. Cambra, No. 1:02–cv–

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05646–AWI–SMS (PC), 2008 WL 860523, at *4 (E.D. Cal. Mar. 27, 2008). This requires the

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moving party to inform the court which discovery requests are the subject of the motion to

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

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

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Virga, No. CIV S–11–1030 MCE EFB P., 2011 WL 6703958, at *3 (E.D. Cal. Dec. 21, 2011).

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A.

Plaintiff’s Motion

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Plaintiff states that on July 31, 2019, he served Defendants with written discovery. (ECF

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No. 75 at 3:23-24.) Plaintiff provides evidence that on August 28, 2019, Defendants German,

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Holguin, and Burnitzki each served responses to Plaintiff’s interrogatories, set two, and

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defendant Burnitzki served a response to Plaintiff’s request for admissions, set one. (Depo. of

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Pltf., ECF No. 75 at 42-58.) Plaintiff argues that Defendants’ responses were deficient and their

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objections were without merit. Plaintiff claims that Defendants failed to respond to any of the

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interrogatories, instead they asserted vague and unmeritorious objections.

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Specifically, Plaintiff requests further responses to the following:

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(1)

By defendant German –

Interrogatories, set two, nos. 8 through 20;

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(2)

By defendant Holguin –

Interrogatories, set two, nos. 8 through 23;

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(3)

By defendant Burnitzki –

Interrogatories, set two, no. 10; and

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Request for Admissions, set one, no. 1.

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Plaintiff claims that his interrogatories were timely served according to the prison

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mailbox rule and Rule 33(b) of the Federal Rules of Civil Procedure, and “[a]ny untimeliness

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was due to staff obstruction by defendants’ coworkers.” (ECF No. 75 at 6:9-13, 7:24-28, 9:22-

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26:1-3.)

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Plaintiff declares that he lost the court’s March 19, 2018 Discovery and Scheduling Order

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when he was temporarily transferred to another prison on April 7, 2018, and he is not aware of
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the content of the order. (Pltf’s Decl., ECF No. 75 at 31-32 ¶¶ 1-3.) Therefore, Plaintiff was

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not aware that discovery requests must be served at least 60 days before the discovery deadline.

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Plaintiff asserts that on April 24, 2019, the court reopened discovery, with a discovery deadline

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of August 30, 2019, but due to delays at the prison he was unable to make copies of his written

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discovery for months and finally served the discovery on July 31, 2019 without keeping a copy

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for himself. (Id. at 32-33 ¶¶ 4-10.) Plaintiff contends that his discovery requests were timely

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served according to Rule 33(b)(2) and the prison mailbox rule, giving Defendants 30 days to

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respond before the discovery deadline. (Id. at 33 ¶ 11.) Plaintiff declares that if there were

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modifications to those rules contained in the court’s March 19, 2018 scheduling order, he was

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not aware of them because his copy of the order was lost. (Id. at 33 ¶ 12.) Plaintiff also declares

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that he was diligent, and any delay in the service of his discovery requests is due to staff

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obstruction by Defendants’ co-workers. (Id. at 33-34 ¶ 13.)
Defendants’ Opposition

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B.

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Defendants request that Plaintiff’s motion to compel filed on September 20, 2019, be

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denied because Plaintiff’s written discovery requests were served on Defendants in an untimely

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manner. In support, Defendants provide evidence that Plaintiff served the requests on July 31,

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2019, which was well after the cut-off date established by the court in its Discovery and

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Scheduling Orders. The court’s Discovery and Scheduling Order issued on March 19, 2018

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required all discovery requests to be served at least 60 calendar days before the discovery

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deadline. (ECF No. 37 at 2.) On April 25, 2019, the court issued a new Scheduling Order

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resetting deadlines, establishing a new discovery deadline of August 30, 2019, and advising the

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parties that all other provisions of the March 19, 2018 Discovery and Scheduling Order remained

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the same. (ECF No. 65.) Defendants state that they asserted objections to Plaintiff’s written

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discovery requests and refused to respond to the requests because Plaintiff served them after the

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court’s cut-off date.

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C.

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Plaintiff states that he served discovery requests on Defendants on July 31, 2019 but did

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not receive full answers. He argues that Defendants’ responses to the interrogatories, set two, and

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request for admissions, set one, were deficient and their objections were without merit.

Discussion

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Plaintiff’s discovery requests are untimely. The Discovery and Scheduling Order required

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the parties to serve any discovery requests on the other party at least 60 days before the discovery

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deadline. Because the discovery deadline was August 30, 2019, Plaintiff’s discovery requests

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should have been served no later than July 1, 2019. Plaintiff did not serve his discovery requests

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until July 31, 2019, so they were untimely.

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Plaintiff’s motion provides no basis for this court to compel defendants to respond to his

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discovery requests. Plaintiff’s arguments that his service was timely are without merit. Plaintiff

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has not shown, and the court finds no support for his argument that according to the mailbox rule

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and Rule 33(b), his service was timely. Plaintiff’s deadline for serving discovery requests was

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established by the court’s scheduling order, and Plaintiff failed to comply with the order.

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Plaintiff’s arguments that he should be excused from his untimely service are

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unpersuasive. Plaintiff argues that any untimeliness was due to staff obstruction by Defendants’

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coworkers, but he fails to provide any facts or evidence showing what Defendants’ coworkers

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did to obstruct his ability to timely serve the discovery requests. Plaintiff asserts that he was not

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given enough access to the prison library to make copies before he served the discovery, but

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Plaintiff could have served the discovery requests -- and in fact did serve the discovery requests

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-- upon Defendants before he was able to make copies. Plaintiff admits that he lost the March

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19, 2017 Discovery and Scheduling order and was not aware of the deadlines set therein.

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However, loss of the court’s order, when Plaintiff could have easily requested another copy of

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the order from the court, does not excuse Plaintiff from his failure to comply with the order.
Thus, the Court finds that Plaintiff’s discovery requests were untimely served, and

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therefore Plaintiff’s motion to compel shall be denied.

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III.

CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion to compel,

filed on September 20, 2019, is DENIED.

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IT IS SO ORDERED.
Dated:

February 5, 2020

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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