Asberry v. Biter

Filing 150

ORDER DENYING 110 Plaintiff's Motion to Compel signed by Magistrate Judge Jeremy D. Peterson on 9/2/2018. (Jessen, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TONY ASBERRY,

ORDER DENYING PLAINTIFF’S MOTION
TO COMPEL

Plaintiff,

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Case No. 1:16-cv-01741-LJO-JDP

v.
(Doc. No. 110.)

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C. RELEVANTE,
R. LOZOVOY,
A. FERRIS, and
P. GODFREY,
Defendants.

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Plaintiff Tony Asberry, a state prisoner, proceeds without counsel in this civil rights

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action brought under 42 U.S.C. § 1983. Plaintiff previously moved to compel defendants

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Ferris and Godfrey to produce the “White Transfer Envelope” and its contents prepared for his

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transfer between two prisons. (Doc. No. 110.) Defendants Ferris and Godfrey opposed the

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motion, stating that they had produced the contents of the envelope, a CDCR 7371 form.

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(Doc. No. 118.) The court previously found that defendants had not conducted a reasonable

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inquiry in search of the envelope and its additional alleged contents, and the court directed

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defendants to conduct further investigation. (Doc. No. 139.) Defendants complied, and they

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have filed a response detailing their efforts to locate the materials requested by plaintiff.

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(Doc. No. 144.) Plaintiff has filed a reply, arguing that defendants’ efforts to find the

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requested materials were inadequate. (Doc. No. 147.)

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A party must conduct a reasonable inquiry before claiming that it does not have
possession, custody, or control of a requested document. See Fed. R. Civ. P. 26(g)(1);

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A. Farber & Partners, Inc. v. Garber, 234 F.R.D. 186, 189 (C.D. Cal. 2006). A reasonable

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inquiry includes, “at a minimum, a reasonable procedure to distribute discovery requests to all

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employees and agents of the defendant potentially possessing responsive information, and to

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account for the collection and subsequent production of the information.” Nat’l Ass’n of

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Radiation Survivors v. Turnage, 115 F.R.D. 543, 556 (N.D. Cal. 1987). On the other hand, the

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Federal Rules of Civil Procedure “do not demand perfection,” and a court assesses the

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reasonableness of an inquiry by an objective standard. See Reinsdorf v. Skechers U.S.A., Inc.,

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296 F.R.D. 604, 615 (C.D. Cal. 2013). The court considers whether the producing party

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conducted an inquiry “objectively reasonable under the circumstances,” taking into account

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“the burdensomeness and importance of the discovery requested” and the court’s obligation to

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secure “the just, speedy, and inexpensive determination of every action.” Id. (quoting

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Fed. R. Civ. P. 1).

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Here, defendants Ferris and Godfrey have conducted a reasonable inquiry. Prison

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employees whom defendants asked about the contents of the envelope—the nurse who

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completed the CDCR 7371 form for plaintiff’s transfer, the litigation coordinator at plaintiff’s

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old prison, the nurse who received the CDCR 7371 form, and the litigation coordinator at his

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new prison—all confirmed that the only item contained in the envelope was the CDCR 7371

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form, which defendants have already produced. (See Doc. Nos. 144-1, 144-3, 144-4.) The

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litigation coordinators at both prisons indicated that having only a CDCR 7371 form in the

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envelope was typical. (See Doc. Nos. 144-3, ¶ 6; 144-4, ¶¶ 3, 6-7.) Defendants state that the

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envelope, which is now empty, could not be found. (Doc. No. 144-3, ¶ 8.)

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According to plaintiff, standard procedures require the envelope to contain other

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materials, such as a Disability Placement Program Verification form, a Patient Summary Sheet,

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and Active Physician’s Orders. (Doc. No. 147, at 2 (citing Doc. No. 147, at 15).) But even if

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prison staff are required to include additional materials in the envelope, this does not guarantee

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that they did so. Indeed, plaintiff says he does not recall having a “pre-boarding medical

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check” as required. (See id. at 4.) At a later point in this case, plaintiff may wish to inform the

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court of the significance of the absence of a medical check or of the prison staff’s failure to

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include additional materials in the envelope. As regards the White Transfer Envelope, the

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undersigned is satisfied that defendants Ferris and Godfrey have fulfilled their discovery

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obligations.

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Order

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Plaintiff Tony Asberry’s motion to compel (Doc. No. 110) is denied.

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IT IS SO ORDERED.

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Dated:

September 2, 2018

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UNITED STATES MAGISTRATE JUDGE

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