Garraway v. Ciufo et al

Filing 78

ORDER DENYING 70 Plaintiff's Motion to Compel Production of Abassi-Related Discovery signed by Magistrate Judge Gary S. Austin on 7/22/2019. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MITCHELL GARRAWAY,

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Plaintiff,

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vs.

1:17-cv-00533-DAD-GSA-PC
ORDER DENYING PLAINTIFF’S MOTION
TO COMPEL PRODUCTION OF ABASSIRELATED DISCOVERY
(ECF No. 70.)

JACQUILINE CIUFO, et al.,

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Defendants.

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I.

BACKGROUND

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Plaintiff is a federal prisoner proceeding pro se in this civil rights action pursuant to

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Bivens vs. Six Unknown Agents, 403 U.S. 388 (1971). This case now proceeds with Plaintiff’s

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original Complaint filed on April 17, 2017, against defendants Jacqueline Ciufo (Unit Manager),

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K. Miller (Corrections Officer), and Lieutenant J. Zaragoza (collectively, “Defendants”), for

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failure to protect Plaintiff in violation of the Eighth Amendment. (ECF No. 1.)

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On February 26, 2019, defendant Miller filed a motion for summary judgment for

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Plaintiff’s failure to exhaust administrative remedies for his claims against defendant Miller.

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(ECF No. 41.) Also on February 26, 2019, defendants Ciufo, Miller, and Zaragoza filed a motion

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for judgment on the pleadings requesting dismissal of this case for Plaintiff’s failure to state a

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claim pursuant to the Supreme Court’s ruling in Ziglar v. Abassi, 137 S. Ct. 1843 (2017). (ECF
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No. 42.) The motion for summary judgment and motion for judgment on the pleadings are

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pending.

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On February 26, 2019, Defendants filed a motion to stay all discovery pending resolution

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of the motion for judgment on the pleading as resolution of the motion may end the case. (ECF

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No. 43.) On April 1, 2019, the court granted the motion to stay in part, staying all discovery

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except for discovery related to the Abassi issue pending resolution of the motion for judgment

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on the pleadings. (ECF No. 65.)

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On April 29, 2019, Plaintiff filed a motion to compel production of Abassi-related

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discovery. (ECF No. 70.) On May 21, 2019, Defendants filed an opposition. (ECF No. 75.)

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Plaintiff’s motion to compel is now before the court. Local Rule 230(l).

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II.

ABASSI ISSUE -- BIVENS CLAIMS

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On June 19, 2017, the Supreme Court “made [it] clear that expanding the Bivens remedy

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is now a ‘disfavored’ judicial activity,” which is “in accord with the Court’s observation that it

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has ‘consistently refused to extend Bivens to any new context or new category of defendants.’”

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Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017) (first quoting Ashcroft v. Iqbal, 556 U.S. 662,

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675 (2009); then quoting Correctional Services Corp. v. Malesko, 534 U.S. 61, 68 (2001)).

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Abassi sets forth a two-part test to determine whether a Bivens claim may proceed. 137 S. Ct. at

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1859-60. A district court must first consider whether the claim presents a new context from

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previously established Bivens remedies, and if so, it must then apply a “special factors” analysis

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to determine whether “special factors counsel hesitation” in expanding Bivens in the absence of

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affirmative action by Congress. Abassi,137 S.Ct. at 1857-60.

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III.

PLAINTIFF’S MOTION TO COMPEL

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Under Rule 37 of the Federal Rules of Civil Procedure, “a party may move for an order

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compelling disclosure or discovery.” Fed. R. Civ. P. 37(a)(1). The court may order a party to

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provide further responses to an “evasive or incomplete disclosure, answer, or response.” Fed. R.

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Civ. P. 37(a)(4). “District courts have ‘broad discretion to manage discovery and to control the

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course of litigation under Federal Rule of Civil Procedure 16.’” Hunt v. County of Orange, 672

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F.3d 606, 616 (9th Cir. 2012) (quoting Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828,
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833 (9th Cir. 2011)). Generally, if the responding party objects to a discovery request, the party

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moving 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. 13,

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2012); Ellis v. Cambra, No. 1:02–cv–05646–AWI–SMS (PC), 2008 WL 860523, at *4 (E.D. Cal.

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Mar. 27, 2008). This requires the moving party to inform the court which discovery requests are

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the subject of the motion to compel, and for each disputed response, why the information sought

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is relevant and why the responding party’s objections are not meritorious.

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Plaintiff requests the court to compel Defendants to respond to his “Abassi-related”

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discovery requests,” (1) requests for production of documents, numbers 4-9; (2) request for

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admissions (first set), numbers 1-21; and (3) interrogatories (first set), numbers 7-13. (ECF No.

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70.) Plaintiff states that he “re-submitted” this discovery to Defendants on April 9, 2019, and

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Defendants have not responded. (Id.)

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Defendants argue that Plaintiff’s motion should be denied because none of the asserted

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discovery, which was the subject of Plaintiff’s prior motions to compel at ECF Nos. 35 and 66,

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has anything to do with the Abassi issue.

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IV.

DISCUSSION

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As discussed above, the court’s order of April 1, 2019, stayed all discovery in this action

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except for discovery related to the Abassi issue pending resolution of the motion for judgment

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on the pleadings. (ECF No. 65.) Therefore, at this stage of the proceedings, Plaintiff is precluded

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from proceeding with any discovery not related to the Abassi issue.

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There is no evidence that Plaintiff’s discovery is related to the Abassi issue. In the motion

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to compel Plaintiff merely refers to his discovery as “Abassi-related” without explanation or

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evidence. Plaintiff has not submitted copies of the discovery requests nor responses to his motion

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to compel for the court’s review. To the extent that Plaintiff’s discovery at issue was the subject

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of Plaintiff’s January 17, 2019 and April 1, 2019 motions to compel, as asserted by Defendants,

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the court finds that none of the discovery submitted with those motions is Abassi-related. None

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of it concerns whether Plaintiff’s Bivens’ claims are viable according to the Supreme Court’s

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observations in Ziglar v. Abbasi.
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Furthermore, Plaintiff’s motion must be denied as procedurally defective. A motion to

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compel must be accompanied by a copy of the discovery requests at issue and a copy of

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Defendant=s responses to the discovery requests. As the moving party, Plaintiff bears the burden

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of informing the court which discovery requests are the subject of his motion to compel and, for

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each disputed response, why defendant’s objection is not justified. Plaintiff has not done so.

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Plaintiff may not simply assert that he has served discovery requests, that he is dissatisfied with

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Defendants’ objections, and that he wants an order compelling responses.

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V.

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CONCLUSION
Based on the foregoing, Plaintiff’s motion to compel, filed on April 29, 2019, is DENIED.

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IT IS SO ORDERED.
Dated:

July 22, 2019

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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