Asberry v. Biter

Filing 120

ORDER DENYING 74 Motion to Compel and 86 Motion to Compel, signed by Magistrate Judge Michael J. Seng on 04/15/2018. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TONY ASBERRY,

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Plaintiff,
v.

CASE NO. 1:16-cv-01741-LJO-MJS (PC)
ORDER DENYING PLAINTIFF’S MOTIONS
TO COMPEL DISCOVERY
(ECF Nos. 74, 86)

WARDEN BITER, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds against

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Defendants Relevante and Lovozoy on Plaintiff’s Eighth Amendment claims for medical

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indifference, and against Defendants Ferris and Godfrey on Plaintiff’s First Amendment

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claims for retaliation and Eighth Amendment conditions of confinement claims.

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Before the Court are Plaintiff’s motions to compel discovery in regards to

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Defendants Lovozoy and Relevante. (ECF Nos. 74, 86.) Defendants filed opposition.

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(ECF Nos. 84, 92, 93.) Plaintiff replied. (ECF No. 106.) The matter is deemed submitted.

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Local Rule 230(l).

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II.

Legal Standard

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

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Inc. v. S. Pac. Transp. Co., 669 F.2d 1242, 1246 (9th Cir.1981). “Parties may obtain

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discovery regarding any nonprivileged matter that is relevant to any party's claim or

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

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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

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

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likely benefit.” Fed. R. Civ. P. 26(b)(1). Relevant information need not be admissible at

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

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admissible evidence. Id.

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Pursuant to Rule 37(a), a party propounding discovery may seek an order

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compelling disclosure when an opposing party has failed to respond or has provided

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evasive or incomplete responses. Fed. R. Civ. P. 37(a)(3)(B). The failure to timely object

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to a discovery request may be deemed a waiver of the objection. Richmark Corp. v.

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Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992).

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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. E.g.,

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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); Ellis v. Cambra, No. 1:02-cv-05646-AWI-SMS (PC), 2008 WL 860523, at *4

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(E.D. Cal. Mar. 27, 2008). This requires the moving party to inform the Court which

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

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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.

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CIV S-11-1030 MCE EFB P., 2011 WL 6703958, at *3 (E.D. Cal. Dec. 21, 2011).

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III.

Relevant Background

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On August 27, 2017, Plaintiff served his first set of interrogatories on Defendants

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Lozovoy and Relevante. (ECF No. 84-1 ¶ 2, 74 at 18). According to the Defendants,

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responses to those interrogatories were served on Plaintiff on October 13, 2017. (ECF

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No. 84-1 ¶ 2.) It appears Plaintiff received the responses. (See ECF Nos. 74 at 20-28, 86

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at 18-28, 36-46).

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On September 29, 2017, Defendants Lozovoy and Relevante received a first set

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of requests for admissions from Plaintiff. (ECF No. 84-1 ¶ 3.) The Court granted

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Defendants an extension of time to November 30, 2017, to respond to this request for

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admission. (ECF No. 73.) According to Defendants they served the answer to these

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requests on Plaintiff on November 30, 2017. (ECF No. 84-1 ¶ 3.)

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On November 6, 2017, Plaintiff sent a second set of interrogatories and requests

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for documents to Defendants. (ECF No. 86 at 10.) Responses were sent to Plaintiff on

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December 21, 2017. (ECF Nos. 92, 93.) Plaintiff has apparently received those

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responses. (See ECF No. 106.)

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IV.

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Motions to Compel
Plaintiff has filed two motions to compel discovery from these Defendants. (ECF

Nos. 74, 86, 91.) Plaintiff’s requests in both motions are summarized below.

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A.

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On November 17, 2017, in his first motion to compel, Plaintiff stated that he had

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not received answers to his first set of interrogatories and his first set of admissions, and

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alternatively that the answers that he had received were inadequate; and he sought to

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compel Defendants to respond adequately to his requests. (ECF No. 74.) Plaintiff also

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sought sanctions against Defendants; for the Court to deny the Defendants’ an

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extension of time to respond to his discovery re quests;

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complete discovery if Plaintiff needed it in the future. (Id.)

First Motion to Compel

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and

for

additional

time

to

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Defendants responded that they had provided responses to Plaintiff’s requests

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and that his motion did not demonstrate how their responses were deficient. (ECF No.

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84.)

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B.

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On January 08, 2018, in his second motion to compel discovery, Plaintiff states

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that he had not received Defendants’ responses to his first or second set of

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interrogatories or requests for admission. (ECF No. 86 at 2-3.) Plaintiff requests that the

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Court compel Defendants to respond to his first and second interrogatories; that the

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Court count Defendants refusal to answer as a waiver to defend and a confession to the

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point that the Court hold Defendants accountable for refusing to answer Plaintiff; and

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that Defendants receive sanctions. (ECF No. 86 at 8.)

Second Motion to Compel

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Defendants state that they have provided responses and point out that Plaintiff

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has failed to identify the responses he feels are deficient. (ECF No. 92.) Plaintiff replied

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that Defendants had failed to answer his questions in their responses to his second set

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of interrogatories. (ECF No. 106.) Plaintiff provided copies of the responses from

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Defendants in which they object to answering most of Plaintiff’s second set of

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interrogatories on the grounds that Plaintiff had exceeded the allowable number of

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interrogatories. (See Id.)

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V.

Analysis

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A.

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As an initial matter, it is unclear which responses Plaintiff claims he had not

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received, and thus, what information Plaintiff wishes to compel Defendants to provide.

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Although Plaintiff requests responses to both his first and second sets of interrogatories

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and requests for admissions, it appears he has received responses to both set of

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interrogatories. (See ECF Nos. 74 at 20-28, 86 at 18-28, 36-46, 106 at 16-34.) (copies of

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responses to these requests). Thus, it appears that his real claim is that these responses

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are inadequate or incomplete.

Alleged Missing Responses

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It is not clear if Plaintiff has received a reply to his first or second request for

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admissions. Defendants provide proof of service and aver that responses to Plaintiff’s

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first set of requests admission were served on November 30, 2017 and responses to his

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second set of request for admissions were served on December 21, 2017. (See ECF

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Nos. 92, 93.)

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Plaintiff states that on December 23, 2017, he was transferred to a new facility.

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(ECF No. 84 at 2). This move may have interfered or delayed Plaintiff’s access to mail.

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Service is deemed effective when delivered to Plaintiff’s address of record. Defendants

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cannot be sanctioned for mailing their responses to the address provided by Plaintiff.

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Additionally, Plaintiff requests that the Court deem Defendants to have waived

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their objections by not responding. Fed. R. Civ. P. 33 and 34 provide that discovery

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requests must be responded to within 30 (or in some cases 45) days and a failure to

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

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objection. Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981). Here, the Court’s

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discovery and scheduling order requires that responses to all discovery requests be

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served within forty-five days of service, and as to one of Plaintiff’s requests, Defendants

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received an extension of time. (ECF Nos. 53, 73.) In all instances, Defendants provide

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proof that they timely served their responses on Plaintiff. The fact that Plaintiff may not

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have received Defendants’ responses is not sufficient to deem their objections waived.

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B.

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Plaintiff provides copies of his first set of interrogatories and the responses he

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received. (See ECF Nos. 74 at 20-28, 86 at 18-28, 36-46.) Plaintiff also includes in his

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motions copies of letters that he sent to Defendants’ counsel outlining his dissatisfaction

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with their replies. (ECF Nos. 74 at 9-15, 86 at 50-55.) Although, Plaintiff’s motions do not

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specify exactly what answers he wants the Court to compel Defendants to answer, the

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Court will construe Plaintiff’s letters as indicating the responses Plaintiff is dissatisfied

Responses to First Set of Interrogatories

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with. Since most of Plaintiff’s concerns are not specific to a particular question, they will

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be considered below by issue.

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Non-responsive

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In general, Plaintiff complains that Defendants have asserted “boilerplate”

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responses without answering the questions asked, but he does not state why he

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believes Defendants’ answers are incomplete. This analysis applies to Plaintiff’s

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complaints regarding Interrogatories # 5, 6, 8, 9, 10, 11, 12, 13, 14, 17, 18, 19, 20, 24 to

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Defendant Lovozoy (See ECF No. 86 at 50-51); and Interrogatories # 1, 3, 4, 5, 6, 7, 8,

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9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 24, 25 (See Id. at 52-55).

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On review, the Court finds that Defendants provided answers to Plaintiff’s queries.

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It is not clear what Plaintiff finds inadequate. Plaintiff, as the moving party, bears the

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burden of indicating why Defendants’ objections are not justified and must indicate with

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specificity what information he seeks. Grabek, No. CIV S-10-2892 GGH P., 2012 WL

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113799, at *1. In regards to the aforementioned interrogatories, Plaintiff has not met that

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burden.

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2.

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In regards to a few interrogatories, Plaintiff asks generic follow-up questions about

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the Defendants’ responses, such as “please explain what your [sic] referring.” (ECF No.

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86 at 50.) This is the case for interrogatories # 15, 16, 19 to Defendant Lovozoy (See id.

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at 50-51); and interrogatory # 23 to Defendant Relevante. (See Id. at 54.)

Follow-up Questions

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However, as noted above, a review of Defendants’ responses indicates that they

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have answered Plaintiff’s questions as Plaintiff has phrased them. Plaintiff’s objections

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do not specify why these answers are deficient. He provides no grounds for the Court to

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compel Defendants to answer them differently.

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Accordingly, Plaintiff’s motions are denied as they respect Plaintiff’s first set of
interrogatories.

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C.

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Plaintiff provides copies of Defendants’ responses to his second set of

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interrogatories. Defendants declined to answer all but one of Plaintiff’s requests on the

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grounds that Plaintiff had exceeded the number of interrogatories allowed under Rule

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33. Rule 33 states in relevant part: “Unless otherwise stipulated or ordered by the court,

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a party may serve on any other party no more than 25 written interrogatories, including

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all discrete subparts. Leave to serve additional interrogatories may be granted to the

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extent consistent with Rule 26(b)(1) and (2).” Fed. R. Civ. P. 33 (a)(1).

Responses to Second Set of Interrogatories

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Here Plaintiff has submitted more interrogatories than the limit allowed by Rule

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33, a total of fifty interrogatories. Plaintiff has not sought leave of the Court to submit

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additional interrogatories as required under the Federal Rules. Nor does he provide in

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his motions compelling reason for the Court to do so. Indeed, he acknowledges that his

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second set “consist largely of the same questions” as those contained in the first set of

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interrogatories. (ECF No. 84 at 2.)

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Accordingly, Defendant’s refusal to respond to Plaintiff’s second set of

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interrogatories, virtually identical to the first, is in good faith. Plaintiff’s motion to compel

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is declined.

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D.

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Plaintiff requests sanctions against Defendants. In his motions based on

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Defendants' refusal to answer questions as he desired and because of the time

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Defendants took to answer. The Court finds Defendants provided sufficient timely

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answers.. There are no grounds to impose sanctions.

Sanctions

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D.

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Plaintiff’s request that Defendant’s be denied additional time to respond to his

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interrogatories is moot. The Court granted this request on November 14, 2017. (ECF

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No. 73.)

Extension of Time

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III.

Conclusion, Order, and Recommendation
Based on the foregoing, Plaintiff’s motions to compel and for sanctions (ECF Nos.

74, 86) are HEREBY DENIED.

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IT IS SO ORDERED.
Dated:

April 15, 2018

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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