Petillo v. Peterson et al

Filing 80

ORDER GRANTING Plaintiff's Motions to Withdraw and DENYING Motions to Compel 68 , 69 , 70 , 72 , signed by Magistrate Judge Jennifer L. Thurston on 10/22/2018. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ISAIAH JOEL PETILLO,

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CASE No. 1:16-cv-0488-AWI-JLT (PC)
ORDER GRANTING PLAINTIFF’S
MOTIONS TO WITHDRAW AND
DENYING MOTIONS TO COMPEL

Plaintiff,
v.
J.L. PETERSON, et al.,

(Docs. 68-69, 70, 72.)

Defendants.

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Plaintiff filed a motion to compel responses to his First Set of Interrogatories (Doc. 68) and

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a motion to compel responses to his Second Set of Requests for Production of Documents (Doc.

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69) based on the defendants’ alleged failure to respond to these requests. Plaintiff now moves to

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“void/strike” the motion to compel as to the interrogatories (Doc. 72) and moves to “Disregard &

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Strike” his motion to compel as to his request for production of documents (Doc. 70) since it

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appears that the defendants have responded in a timely manner.

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While moving to withdraw said motions, plaintiff takes issue with the defendants’ response

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to one of his requests for production of documents. (See Doc. 70.) Setting aside the procedural

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deficiencies with plaintiff’s objection to this response, plaintiff’s objections are overruled. In

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Request No. 7 of the Second Set of Requests for Production of Documents, plaintiff requested a

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photocopy of the metal expandable baton allegedly used by defendant Harris to strike plaintiff and

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the instructions for the baton’s proper use. See Decl. of L. Sheet in Supp. of Defs.’ Opp’n Ex. 1

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(Doc. 73). Defendants responded to the first portion of this request as follows: “Defendants do not

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have a photograph of a Monadnock Expandable Baton used at California Correctional Institution

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in 2012, and are not required to create a document in response to a request for production.”

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Defendants are correct that they have no obligation to create a responsive document. See Robinson

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v. Adams, 2011 WL 2118753, at *14 (E.D. Cal. May 27, 2011). As to the second portion of the

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request, defendants produced a copy of the 2012 CDCR Department Operations Manual, section

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52020.8.10, “Close Custody Movement,” and section 51020.5, “Use of Force Options.” Plaintiff,

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who bears the burden as the moving party, see Grabek v. Dickinson, 2012 WL 113799, at *1 (E.D.

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Cal. Jan. 13, 2012), fails to identify why or how these responses are deficient. Accordingly, the

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Court ORDERS:

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1. Plaintiff’s motions to withdraw (Docs. 70, 72) are GRANTED;

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2. Plaintiff’s motion to compel responses to his First Set of Interrogatories (Doc. 68) is

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DENIED;
3. Plaintiff’s motion to compel responses to his Second Set of Requests for Production of

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Documents (Doc. 69) is DENIED:
a. Plaintiff’s motion to compel defendants to produce a photograph of the baton

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used to strike plaintiff is DENIED; and
b. Plaintiff’s motion to compel information for use of the baton is DENIED.

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IT IS SO ORDERED.
Dated:

October 22, 2018

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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