Timberland v. Mascarenas et al

Filing 61

ORDER DENYING 43 & 44 Plaintiff's Motions to Compel as Moot and ORDER for Defendant to File Supplemental Response to Plaintiff's Motion for Sanctions signed by Magistrate Judge Gary S. Austin on 3/18/2020. Supplemental Response due within 30 days. (Rivera, O)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RONALD TIMBERLAND,

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Plaintiff,

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vs.
G. MASCARENAS, et al.,

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Defendants.

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1:16-cv-00922-NONE-GSA-PC
ORDER DENYING PLAINTIFF’S MOTIONS
TO COMPEL AS MOOT
(ECF Nos. 43, 44.)
ORDER FOR DEFENDANT TO FILE
SUPPLEMENTAL RESPONSE TO
PLAINTIFF’S MOTION FOR SANCTIONS
THIRTY-DAY DEADLINE

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I.

BACKGROUND

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Ronald Timberland (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. This action now

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proceeds with Plaintiff’s Second Amended Complaint, filed on June 20, 2018, against defendant

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G. Mascarenas (Correctional Counselor I) (“Defendant”) for failure to protect Plaintiff in

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violation of the Eighth Amendment.1 (ECF No. 26.)

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On August 14, 2019, and November 7, 2019, Plaintiff filed motions to compel and for

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sanctions. (ECF Nos. 43, 44.) On February 4, 2020, Defendant filed an opposition to the

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On October 12, 2018, the court issued an order dismissing all other claims and defendants from
this action, based on Plaintiff’s failure to state a claim. (ECF No. 30.)

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motions. (ECF No. 57.) Plaintiff has not filed a reply to the opposition, and the time for filing a

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reply has now expired. L.R. 230(l).

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II.

MOTION TO COMPEL – RULE 37

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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. 2012); Ellis v. Cambra, No. 1:02–cv–05646–

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AWI–SMS (PC), 2008 WL 860523, at *4 (E.D. Cal. 2008). This requires the moving party to

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inform the 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 party’s

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objections are not meritorious. Grabek, 2012 WL 113799, at *1; Womack v. Virga, No. CIV S–

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11–1030 MCE EFB P, 2011 WL 6703958, at *3 (E.D. Cal. 2011).

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A.

Plaintiff’s Motions To Compel
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First Motion to Compel (ECF No. 43.)

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In Plaintiff’s first motion to compel, filed on August 14, 2019, Plaintiff seeks to compel

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defendant Mascarenas to respond to his Interrogatories #1-25, Requests for Admission #1-7, and

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Request for Production of Documents #1-10.

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Interrogatories on April 10, 2019, and the Request for Admissions and Request for Production

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on May 30, 2019. As of August 11, 2019, the date of the motion to compel, Plaintiff had not

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received responses to any of these discovery requests. Plaintiff reports that on June 7, 2019, he

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sent a letter to Defendant requesting responses to his discovery requests “before having to get the

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court involved in the discovery process.” (ECF No. 43 at 2:10-15.) As of August 11, 2019,
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Plaintiff represents that he served the

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Plaintiff had not received a response to his letter. Plaintiff argues that Defendant refused to

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respond to his discovery requests, without justification. Plaintiff requests $1,000.00 as his

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reasonable expenses for obtaining an order from the court.

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2.

Second Motion to Compel (ECF No. 44.)

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On November 7, 2019, Plaintiff filed another motion to compel, again seeking to compel

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defendant Mascarenas to respond to his Interrogatories #1-25, Requests for Admissions #1-7,

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and Request for Production of Documents #1-10, pursuant to Rule 37(a). In this motion, Plaintiff

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requests $1,500.00 from Defendant as reasonable expenses in obtaining an order from the court

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due to Defendant’s refusal to meet the court’s discovery deadlines without substantial

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justification.
Defendant’s Opposition

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B.

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Defendant Mascarenas argues that both of Plaintiff’s motions to compel are moot because

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Defendant properly and timely responded to Plaintiff’s discovery requests. Defense counsel

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represents as follows:

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On April 11, 2019, Plaintiff served defendant Mascarenas with

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Interrogatories. (Declaration of K. Hammond, ECF No. 57 ¶ 3.) Counsel

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promptly contacted defendant Mascarenas and caused the responses to the

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Interrogatories, Set One, to be served on April 18, 2019. (Id. ¶ 5.) However, in

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checking the discovery file, defense counsel did not find a proof of service

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showing that the responses were ever served. (Id. ¶ 6.) In addition, the discovery

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file shows that counsel’s office received Plaintiff’s notification of change of

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address on April 25, 2019, shortly after the Interrogatory responses were served.

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(Id. ¶ 7.)

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During Plaintiff’s deposition on September 24, 2019, counsel for

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defendant Mascarenas advised Plaintiff that neither the Request for Admissions

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nor Request for Production of Documents were received, but advised Plaintiff

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that if he sent them again, defendant Mascarenas would timely serve responses.

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(Id. ¶¶ 8-10.) Plaintiff re-served the requests on September 25, 2019, and
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counsel for defendant Mascarenas received them shortly thereafter. (Id. ¶¶ 11,

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12.) Responses to those requests were served on November 5, 2019. (Id. ¶ 12.)

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Noting on Plaintiff’s motion to compel filed November 7, 2019, that he had been

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transferred to another institution, they were re-served on December 5, 2019. Id.

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¶¶ 13, 14.)
Defendant also responded to Plaintiff’s Interrogatories.

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Defense

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counsel’s files show that the Interrogatories were received on April 11, 2019,

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and responses were signed by counsel for defendant Mascarenas on April 18,

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2019. There are no proofs of service for these responses in the file. In addition,

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defense counsel’s files indicate that Plaintiff filed a change of address on April

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25, 2019, but the responses were not re-served. Those responses are being re-

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served along with Defendant’s Opposition to the Motion to Compel, at

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Plaintiff’s current address.

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Defendant asserts that he timely responded to Plaintiff’s discovery requests but because

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Plaintiff was transferred to different institutions just before Defendant served the discovery

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responses, the responses were served at Plaintiff’s former address. The responses were re-served

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by Defendant once he knew Plaintiff’s current address.

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C.

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Plaintiff seeks to compel defendant Mascarenas to respond to Plaintiff’s discovery

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requests. Plaintiff’s motions to compel are moot because after Plaintiff’s September 24, 2019

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deposition, Defendant re-served his responses to Plaintiff’s Interrogatories; Plaintiff re-served

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his Requests for Admission and Request for Production of Documents on Defendant; and,

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Defendant served his responses to the Requests for Admission and Request for Production of

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Documents on Plaintiff. Therefore, Plaintiff’s motion to compel is moot and shall be denied as

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such.

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III.

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Discussion

MOTION FOR SANCTIONS
Plaintiff requests the court to impose sanctions on Defendant because Defendant’s

discovery responses were untimely.
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Federal Rule of Civil Procedure 37(a)(5)(A) provides that if [a] motion [to compel] is

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granted--or if the disclosure or requested discovery is provided after the motion was filed--the

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court must, after giving an opportunity to be heard, require the party or deponent whose conduct

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necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's

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reasonable expenses incurred in making the motion, including attorney’s fees. But the court must

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not order this payment if:

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(i)

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disclosure or discovery without court action;

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(ii)

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the opposing party’s nondisclosure, response, or objection was substantially
justified; or

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the movant filed the motion before attempting in good faith to obtain the

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other circumstances make an award of expenses unjust.

Fed. R. Civ. P. 37(a)(5)(A).

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The court has broad discretion regarding the type and degree of discovery sanctions it

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may impose pursuant to Rule 37 and can impose any sanction it sees as just. Von Brimer v.

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Whirlpool Corp., 536 F.2d 838, 844 (9th Cir. 1976). “When sanctions are warranted, the Court

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must determine the appropriate level or severity of sanctions based on the circumstances of the

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case.” Daniels v. Jenson, No. 2:11-CV-00298-JCM, 2013 WL 1332248, at *2 (D. Nev. Mar. 11,

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2013).

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With respect to pro se litigants, including those that are licensed attorneys, the general

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rule is that attorneys’ fees are not a payable “expense” under Rule 37 “as there is no direct

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financial cost or charge associated with the expenditure of one’s own time.” Pickholtz v.

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Rainbow Techs., Inc., 284 F.3d 1365, 1375 (Fed. Cir. 2002); see Fosselman v. Gibbs, No. CV

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06–00375 PJH (NJV), 2010 WL 1446661, at *1 (N.D. Cal. 2010); see also Kay v. Ehrler, 499

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U.S. 432, 438, 111 S.Ct. 1435, 113 L.Ed.2d 486 (1991) (licensed attorney proceeding pro se not

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entitled to an award attorneys’ fees). The “reasonable expenses” awardable under Rule 37 do

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include, however, “actual costs incurred as a result of misconduct [.]” Fosselman, 2010 WL

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1446661, at *1. Fees to pro se litigants are awardable under the court’s inherent power.” Jacobs

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v. Scribner, No. 06–cv–01280–AWI–GSA–PC, 2011 WL 98585, at *1 (E.D. Cal. 2011). A rule
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to the contrary “would place a pro se litigant at the mercy of an opponent who might engage in

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otherwise sanctionable conduct.” Pickholtz, 284 F.3d at 1375.

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As set forth above, Plaintiff was obliged to file two motions to compel as a result of

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Defendant’s conduct, and the discovery requested by Plaintiff was provided after the motions to

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compel were filed. The record reveals that Plaintiff has satisfied the prerequisite to an award of

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sanctions under FRCP 37(a)(5)(A) because he first attempted to resolve the issues without

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judicial intervention. Defendant offers virtually no excuse for forcing Plaintiff to file the motions

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to compel. The problem is that Defendant failed to respond to Plaintiff’s letter sent on June 7,

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2019, attempting to resolve the discovery dispute before filing the motions to compel. Defendant

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may have been able to avoid the motions to compel if he had simply responded to Plaintiff’s

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letter. This court finds no substantial justification or other circumstances for avoiding the

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mandatory award under FRCP 37(a)(5)(A) to Plaintiff of his reasonable expenses for filing the

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motions to compel.

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This court does not take lightly the imposition of monetary sanctions. However, Fed. R.

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Civ. P. 37(a)(5)(A) explicitly states that the court “must” require the offender to pay the

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reasonable expenses incurred by the other side as a result of the offense unless the conduct was

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“substantially justified” or “other circumstances make an award of expenses unjust.” FRCP

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37(a)(5)(A).

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substantially justified and has proffered no other circumstances to make an award of expenses

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unjust.

Defendant has not shown that the failure to respond to Plaintiff’s letter was

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Under the facts presented here, Plaintiff’s motions to compel arose largely because of an

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unfortunate chain of events in which discovery requests and responses were lost in the mail,

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delaying discovery for months. Plaintiff served Interrogatories on Defendant on April 11, 2019.

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It appears that Defendant served his Responses to Interrogatories at Plaintiff’s former address,

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through no fault of either party. Discovery came to a standstill. Plaintiff served his Requests for

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Admission and Request for Production of Documents upon Defendant, but Defendant did not

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receive them. Plaintiff then sent a letter to Defendant attempting to resolve the discovery issues

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///
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before filing a motion to compel. Defendant did not respond. Discovery again came to a

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standstill. On August 11, 2019, Plaintiff filed his first motion to compel.

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Defendant argues that his service of the discovery responses, although late, effectively

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moots Plaintiff’s motion for sanctions. Defendant asserts that Plaintiff has not filed anything

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objecting to the form or content of the responses or supporting the contention that he has been

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prejudiced by Defendant’s delay in responding to his discovery requests. But Plaintiff’s filings

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are not at issue here. Here, Defendant has not discussed why he failed to respond to Plaintiff’s

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June 7, 2019 letter attempting to resolve the discovery conflict.

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Defendant shall be required, within thirty days, to file a supplemental response to

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Plaintiff’s motion for sanctions, showing why he should not be required to pay the reasonable

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expenses incurred by Plaintiff. Defendant must demonstrate why his conduct was “substantially

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justified” or “other circumstances make an award of expenses unjust.” In the alternative,

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Defendant may file a notice of non-opposition to Plaintiff’s motion.

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Further, Plaintiff shall be required to file a reply to Defendant’s supplemental response

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within thirty days of the date the supplemental response is filed. In the reply, Plaintiff shall set

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forth his estimate of the reasonable expenses he incurred in making his motions to compel.

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IV.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

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are DENIED as moot;
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Within thirty days from the date of service of this order, Defendant shall file a
supplemental response to Plaintiff’s motion for discovery sanctions; and

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Plaintiff’s motions to compel, filed on August 14, 2019 and November 7, 2019,

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Within thirty days from the date that Defendant’s supplemental response is filed,

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Plaintiff shall file a reply to Defendant’s supplemental response. In the reply,

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Plaintiff shall set forth his estimate of the reasonable expenses he incurred in

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making his motions to compel.

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IT IS SO ORDERED.
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Dated:

March 18, 2020

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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