Jones v. Arnette, et al.

Filing 111

ORDER GRANTING IN PART Plaintiff's Motion to Compel 97 and for Defendants to respond to Plaintiff's Request for Production #3 signed by Magistrate Judge Gary S. Austin on 10/15/2021. 30-Day Deadline. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JEREMY JONES,

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Plaintiff,

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vs.
ARNETTE, et al.,

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Defendants.

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1:16-cv-01212-DAD-GSA-PC
ORDER GRANTING IN PART PLAINTIFF’S
MOTION TO COMPEL
(ECF No. 97.)
ORDER FOR DEFENDANTS TO RESPOND
TO PLAINTIFF’S REQUEST FOR
PRODUCTION #3
THIRTY-DAY DEADLINE

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I.

BACKGROUND

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Jeremy Jones (“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 and the Americans with Disabilities Act

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(ADA), 42 U.S.C. § 12132. This case now proceeds with Plaintiff’s ADA claims against

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defendants Vasquez, Keener, Gonzalez, Flores, Arnett,1 Zamora, and Lopez; Plaintiff’s Equal

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Protection claims against defendants Lopez and Zamora; Plaintiff’s Eighth Amendment Claims

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Sued as Arnette.
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against defendants Vasquez, Keener And Gonzalez; and, Plaintiff’s Due Process Claims Against

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defendants Vasquez, Keener, and Gonzalez. Defendants Vasquez and Lopez remain unserved.

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Defendant Zamora has been served but has not appeared.

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On July 1, 2021, the court granted Defendants’ motion to modify the scheduling order

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and extended the discovery deadline to August 5, 2021, and the dispositive motions deadline to

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October 5, 2021. (ECF No. 93.)

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On August 2, 2021, Plaintiff filed a motion to compel. (ECF No. 97.) On August 24,

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2021, defendants Arnette, Flores, Gonzalez, and Keener (“Defendants”) filed an opposition to

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the motion. (ECF No. 100.) Plaintiff’s motion to compel is now before the court. Local Rule

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230(l).

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II.

MOTION TO COMPEL

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Federal Rules of Civil Procedure 26(b), 34, 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” including the existence, description, nature, custody, condition,

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and location of any documents or other tangible things and the identity and location of persons

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who know of any discoverable matter. For good cause, the court may order discovery of any

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matter relevant to the subject matter involved in the action.2 “Relevant information need not be

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admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of

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admissible evidence.” Fed. R. Civ. P. 26(b)(1).

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Pursuant to Rule 34(a) of the Federal Rules of Civil Procedure, “any party may serve on

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any other party a request to produce and permit the party making the request . . . to inspect and

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copy any designated documents . . . which are in the possession, custody or control of the party

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upon whom the request is served.” Fed. R. Civ. P. 34(a)(1). “[A] party need not have actual

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possession of documents to be deemed in control of them.” Clark v. Vega Wholesale Inc., 181

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“Evidence is relevant if (a) it has any tendency to make a fact more or less probable than
it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed. R.
Evid. 401.
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F.R.D. 470, 472 (D.Nev. 1998) quoting Estate of Young v. Holmes, 134 F.R.D. 291, 294 (D.Nev.

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1991). “A party that has a legal right to obtain certain documents is deemed to have control of

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the documents.” Clark, 181 F.R.D. at 472; Allen v. Woodford, No. CV–F–05–1104 OWW LJO,

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2007 WL 309945, *2 (E.D.Cal. Jan. 30, 2007) (citing In re Bankers Trust Co., 61 F.3d 465, 469

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(6th Cir.1995)); accord Evans v. Tilton, No. 1:07CV01814 DLB PC, 2010 WL 1136216, at *1

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(E.D.Cal. Mar. 19, 2010).

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Under Rule 34(b), the party to whom the request is directed must respond in writing that

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inspection and related activities will be permitted as requested, or state an objection to the

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request, including the reasons. Fed. R. Civ. P. 34(b)(2). Also, “[a] party must produce documents

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as they are kept in the usual course of business or must organize and label them to correspond to

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the categories in the request.” Fed. R. Civ. P. 34(b)(E)(I).

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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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III.

PLAINTIFF’S MOTION – PARTIES’ POSITIONS
This is Plaintiff’s second motion to compel. Plaintiff’s first motion to compel was filed

on April 5, 2021. (ECF No. 75.)3

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In his second motion to compel, now before the court, Plaintiff requests the court to

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compel Defendants to comply with the court’s order issued on May 24, 2021, which granted in

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part Plaintiff’s first motion to compel. The order required Defendants to respond to a request to

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produce a video tape of the visiting room on August 11, 2012, and to work with the litigation

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coordinator to provide Plaintiff with meaningful access to Plaintiff’s central file and his August

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2012 medical records. (ECF No. 85.) Plaintiff also seeks to compel Defendants to produce

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adequate information in order to properly serve defendants Vasquez and Lopez.

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Plaintiff concedes that he received an Olsen review of his medical file but claims that

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certain documents have “mysteriously gone missing.” (ECF No. 97 at 1.) Plaintiff asserts that

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he previously acquired the documentation he seeks after a prior Olsen review, but then a

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defendant threw away an entire box of his legal materials including those documents. Plaintiff

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also seeks to compel Defendants to produce the video tape of the visiting room on August 11,

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2012, which he requested in his first motion to compel. He argues that Defendants acted in bad

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faith to avoid production of the video tape and documents.

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In opposition, Defendants assert that they complied with the court’s May 24, 2021 order

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by supplementing their responses and there is nothing further to compel. As for the video tape,

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Defendants report that they already made a diligent search of CDCR’s records (not just records

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in the individual Defendant’s possession, custody, and control) for the videotape of the visiting

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room on August 11, 2012, and were informed by the Litigation Coordinator at Corcoran State

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Prison that no such video tape exists. Defendants argue that they cannot be compelled to produce

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a video tape that they have searched for and does not exist. As for providing Plaintiff with access

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to his prison records, Defendants report that defense counsel arranged to allow Plaintiff an

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Plaintiff also filed a motion to compel on January 21, 2021. (ECF No. 62.) Plaintiff sought a
court order compelling Kern Valley State Prison to allow him access to his legal materials. This motion was
construed as a motion for preliminary injunctive relief and resolved on April 20, 2021. (ECF No. 79.)
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opportunity to view his August 2012 medical records. Defendants argue that if documents are

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missing from his medical file, as Plaintiff confirms, Defendants are unable to produce them.

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Defendants acknowledge that on June 23, 2021, Plaintiff served a Request for Production

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of Documents No. 3, in which he sought “adequate information in order to properly serve

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Defendants Vasquez and Lopez.” (Chen Decl., ECF No. 100 at 9 ¶ 3.) Defendants concede that

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they failed to timely respond to the Request and now seek an extension of time to respond. (Id.)

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IV.

DISCUSSION

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Defendants have responded that they conducted a diligent search of CDCR’s records (not

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just records in the individual Defendant’s possession, custody, and control) for the videotape of

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the visiting room on August 11, 2012, and were informed by the Litigation Coordinator at

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Corcoran State Prison that no such video tape exists. This response is sufficient. Defendants

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cannot produce a video tape that does not exist. Plaintiff’s motion to compel production of the

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video tape shall therefore be denied.

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Defendants also respond that they complied with the court’s May 24, 2021 order and

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arranged to allow Plaintiff an opportunity to view his August 2012 medical records. Plaintiff has

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acknowledged that he received an Olsen review of his medical file but that certain documents

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were missing from the records. Defendants’ response is sufficient. Defendants cannot produce

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a document that does not exist in the file. Plaintiff’s motion to compel production of his August

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2012 medical records file shall likewise be denied.

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Defendants did not sufficiently respond to Plaintiff’s Request for Production No. 3, in

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which Plaintiff requests Defendants to produce adequate information in order to properly serve

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defendants Vasquez and Lopez. Defendants have conceded that they did not timely respond, and

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they now request an extension of time to do so.

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It is well established that a failure to object to discovery requests within the time required

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constitutes a waiver of any objection. Richmark Corp. v. Timber Falling Consultants, 959 F.2d

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1468, 1473 (9th Cir. 1992) (quoting Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981)

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(“failure to object to discovery requests within the time required constitutes a waiver of any

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objection.”) Defendants clearly did not object to Plaintiff’s Request for Production #3 within the
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time required by the Federal Rules. Therefore, Plaintiff’s motion to compel Defendants to

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respond to Plaintiff’s Request for Production #3 shall be granted and Defendants shall be required

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to respond, without objections, within thirty days.

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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, filed on August 2, 2021, is GRANTED in part;

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2.

Plaintiff’s motion to compel Defendants to provide a further response to

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Plaintiff’s request for a video tape of the visiting room on August 11, 2012

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(Request for Production #1) is denied;

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3.

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Plaintiff’s motion to compel Defendants to provide him access to his prison
records (Request for Production #2) is denied;

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Plaintiff’s motion to compel Defendants to respond to Plaintiff’s request for

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information to enable service of process upon defendants Lopez and Vasquez

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(Request for Production #3) is granted; and

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5.

Within thirty days from the date of service of this order, Defendants shall provide
a response, without objections, to Plaintiff’s Request for Production #3.

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IT IS SO ORDERED.
Dated:

October 15, 2021

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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