Allen v. Kramer et al

Filing 31

ORDER Denying Plaintiff's 23 Motion to Compel; Denying Plaintiff's 24 Motion for an Investigator; Granting Defendants' 26 Motion for Extension of Time to File an Opposition; and Granting Defendants' Requests to Modify the Discovery and Scheduling Order re 29 , 30 , signed by Magistrate Judge Michael J. Seng on 1/18/18. Dispositive Motion Due Within Thirty Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAVID ALLEN,

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CASE No. 1:15-cv-01609-DAD-MJS (PC)
Plaintiff,

ORDER
(1) DENYING PLAINTIFF’S MOTION TO
COMPEL;

v.
NORM KRAMER, et al.,
Defendants.

(2) DENYING PLAINTIFF’S MOTION FOR
AN INVESTIGATOR;

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(3) GRANTING DEFENDANTS’ MOTION
FOR EXTENSION OF TIME TO FILE
AN OPPOSITION; AND
(4) GRANTING DEFENDANTS’
REQUESTS TO MODIFY THE
DISCOVERY AND SCHEDULING
ORDER

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(ECF NOS. 23, 24, 26, 29, 30)
Plaintiff, a civil detainee proceeding pro se, has filed this civil rights action seeking

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relief under 42 U.S.C. § 1983. This action proceeds on Plaintiff’s original complaint

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against Defendants Pam Ahlin, Fresno Board of Supervisors, Norm Kramer, and

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Stephen Mayberg. The gravamen of Plaintiff’s claims is that Defendants built and

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housed individuals like him in a facility located in an area known to be hyper-

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endemic for contraction of Valley Fever, an infection caused by exposure to

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coccidioides (also called coccidioidomycosis) fungus, and failed to take reasonable

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steps to protect him from the disease.
Pending before the Court are the following motions: (1) Plaintiff’s motion to

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compel discovery (ECF No. 23); (2) Plaintiff’s request for an investigator (ECF No. 24);

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(3) Defendants Ahlin, Kramer and Mayberg’s request for extension of time to file an

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opposition to Plaintiff’s motion to compel (ECF No. 26); and (4) Defendants’ two requests

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for a modification of the Discovery and Scheduling Order1 (ECF Nos. 29, 30).

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I.

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Relevant Procedural History
Plaintiff initiated this action on October 22, 2015. The complaint was screened on

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March 28, 2016, and dismissed with leave to amend on qualified immunity grounds.

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(ECF No. 8.)

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Plaintiff subsequently filed a motion for reconsideration of the screening order.

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(ECF No. 9.) On August 17, 2016, the undersigned determined that Plaintiff’s claims are

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not barred by the doctrine of qualified immunity and that the allegations are sufficient to

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proceed to service against Defendants Mayberg, Kramer, Ahlin and the Fresno Board of

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Supervisors on a safe conditions claim. (ECF No. 10.) Plaintiff was thus directed to file a

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notice of his willingness to proceed on the complaint as screened or file an amended

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pleading.

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On September 19, 2016, plaintiff filed a response indicating his willingness to

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proceed on the complaint as screened. (ECF No. 11.) Accordingly, on September 22,

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2016, the undersigned filed consistent findings and recommendations, which were

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adopted in full on November 23, 2016. (ECF Nos. 12, 13.) Defendants were served

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shortly thereafter.

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Defendant Fresno Board of Supervisors is represented by Fresno County Counsel whereas Defendants
Kramer, Mayberg and Ahlin are represented by the Deputy Attorney General. Both sets of Defendants filed
a request to modify the Discovery and Scheduling Order.

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On February 24, 2017, a Discovery and Scheduling Order (“DSO”) issued setting

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the discovery deadline for October 24, 2017, and the dispositive motion deadline for

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January 5, 2018. (ECF No. 18.)

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II.

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Plaintiff’s Motion to Compel
Plaintiff’s motion to compel seeks further responses to his discovery requests and

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$200 in sanctions against Defendants Kramer, Mayberg, and Ahlin for their allegedly

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dilatory discovery tactics.

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A.

Background

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Plaintiff propounded his first set of requests for production of documents (“RPD”)

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on Defendants Kramer, Mayberg, and Ahlin on July 21, 2017; his first set of

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interrogatories on August 15, 2017; and his second set of RPD on September 12, 2017.

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Defendants Kramer, Mayberg, and Ahlin responded to the first set of RPDs on

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August 22, 2017. (Pl.’s Mot. to Compel [“MTC”] Ex. A). Defendants Kramer and Mayberg

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then responded to the first set of interrogatories on October 2, 2017 (MTC Ex. B), while

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Defendant Ahlin sought and was granted an extension through October 6, 2017, to

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respond to the interrogatories (MTC Ex. D). These Defendants allegedly misfiled the

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second set of RPDs and therefore did not respond to them before the response

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deadline. See Decl. of C. Murphy in Supp. of Defs.’ Opp’n (ECF No. 27-1) ¶ 6. In any

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event, Defendants contend this second set of RPDs is identical to the first set2, and the

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response deadline fell after the October 24, 2017, discovery deadline in this case. Id.

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Plaintiff does not dispute either of these contentions.

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B.

Legal Standards

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

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callous disregard of discovery responsibilities cannot be condoned. Asea, Inc. v.

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Southern Pac. Transp. Co., 669 F.2d 1242, 1246 (9th Cir. 1981) (quotation marks and

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citation omitted). “Parties may obtain discovery regarding any nonprivileged matter that

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The Court is unable to verify this claim. No copy of the second set of RPDs has been provided to the
Court.

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is relevant to any party’s claim or defense and proportional to the needs of the case,

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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,

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the importance of the discovery in resolving the issues, and whether the burden or

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expense of the proposed discovery 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

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to compel bears the burden of demonstrating why the objections are not justified.

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Grabek v. Dickinson, No. CIV S-10-2892 GGH P, 2012 WL 113799, at *1 (E.D. Cal. Jan.

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13, 2012); Womack v. Virga, No. CIV S-11-1030 MCE EFB P, 2011 WL 6703958, at *3

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(E.D. Cal. Dec. 21, 2011); Mitchell v. Felker, No. CV 08-119RAJ, 2010 WL 3835765, at

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*2 (E.D. Cal. Sep. 29, 2010); Ellis v. Cambra, No. 1:02-cv-05646-AWI-SMS PC, 2008

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WL 860523, at *4 (E.D. Cal. Mar. 27, 2008). This requires the moving party to inform the

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Court which discovery requests are the subject of the motion to compel, and, for each

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disputed response, why the information sought is relevant and why the responding

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party’s objections are not meritorious. Grabek, 2012 WL 113799, at *1; Womack, 2011

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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

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notwithstanding these procedures, Plaintiff is entitled to leniency as a pro se litigant;

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therefore, to the extent possible, the Court endeavors to resolve his motion to compel on

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its merits. Hunt v. County of Orange, 672 F.3d 606, 616 (9th Cir. 2012); Surfvivor Media,

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Inc. v. Survivor Productions, 406 F.3d 625, 635 (9th Cir. 2005); Hallett v. Morgan, 296

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F.3d 732, 751 (9th Cir. 2002).

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C.

Analysis

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Plaintiff claims that Defendants’ responses to his discovery requests were late

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and/or inadequate. However, he fails to identify with particularity which responses he

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finds inadequate and why. He objects generally to Defendants’ objections based on, for

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example, the deliberative process and the official information privilege, but presents no

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legal argument why the objections are improper in the contexts asserted. Without

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providing this information, Plaintiff has not met his burden on his motion to compel.

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In addition, to the extent Plaintiff’s motion can be construed as a request for an

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extension of the discovery deadline, the Court does not find good cause. See Fed. R.

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Civ. P. 16(b)(4). Plaintiff was in receipt of Defendants’ responses to the first set of RPDs

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as early as August 22, 2017, yet he waited until the eve of the discovery deadline to

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challenge them. He also does not contest the Defendants’ claim that the second set of

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RPDs is identical to the first. Since Plaintiff himself could have prevented the need for an

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extension, his motion to compel and any related request for an extension of the

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discovery deadline must be denied.

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III.

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Plaintiff’s Request for an Investigator
On November 2, 2017, Plaintiff submitted a request for an investigator pursuant to

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Federal Rule of Civil Procedure 26(c) “to assist plaintiff in the compelling of discovery

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from the defendants.” Plaintiff seeks the appointment of an investigator to consider the

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Defendants’ objections to Plaintiff’s unspecified discovery requests.

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Construing this request as a discovery-related motion, it will be denied, having

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been filed on November 2, 2017, several days after the October 24, 2017, discovery

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deadline. See DSO at 2 ¶ 7 (“[D]iscovery motions will not be considered if filed after the

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discovery deadline.”)

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To the extent the motion is deemed a request for appointment of counsel, it too

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will be denied. Plaintiff does not have a constitutional right to appointed counsel in this

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action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot

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require an attorney to represent plaintiff pursuant to 28 U.S.C. ' 1915(e)(1). Mallard v.

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United States District Court for the Southern District of Iowa, 490 U.S. 296, 298, 109

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S.Ct. 1814, 1816 (1989). However, in certain exceptional circumstances the Court may

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request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113

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F.3d at 1525.

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Without a reasonable method of securing and compensating counsel, the Court

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will seek volunteer counsel only in the most serious and exceptional cases. In

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determining whether Aexceptional circumstances exist, the district court must evaluate

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both the likelihood of success of the merits [and] the ability of the [plaintiff] to articulate

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his claims pro se in light of the complexity of the legal issues involved.@ Id. (internal

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quotation marks and citations omitted). In the present case, the Court does not find the

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required exceptional circumstances.

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IV.

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Modification to the Discovery and Scheduling Order
On January 4, 2018, the Defendants moved to modify the DSO as it relates to the

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dispositive motion deadline, originally set for January 5, 2018. Good cause appearing,

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this deadline will be extended as set forth below.

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V.

Conclusion

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to compel discovery (ECF No. 23) is DENIED;

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2. Plaintiff’s motion for an investigator (ECF No. 24) is DENIED;

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3. Defendants’ request for an extension of time (ECF No. 26) is GRANTED. The

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opposition filed on November 27, 2017, is deemed timely filed; and
4. Defendants’ requests for a modification of the DSO (ECF Nos. 29, 30) are

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GRANTED. The dispositive motion deadline is continued by 30 days from the

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date of this Order.

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IT IS SO ORDERED.
Dated:

January 18, 2018

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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