(PC) Washington v. Hicks, et al.

Filing 85

ORDER GRANTING Defendants' 60 Motion to Compel Discovery Responses; ORDER DENYING Defendants' Requests for Sanctions, without Prejudice signed by Magistrate Judge Gary S. Austin on 1/7/2022. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TRACYE BENARD WASHINGTON,

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Plaintiff,

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vs.

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HICKS, et al.,

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Defendants.

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1:19-cv-00156-NONE-GSA-PC
ORDER GRANTING DEFENDANTS’
MOTIONS TO COMPEL DISCOVERY
RESPONSES
(ECF Nos. 60, 63.)
ORDER DENYING DEFENDANTS’
REQUESTS FOR SANCTIONS, WITHOUT
PREJUDICE

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I.

BACKGROUND

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Tracye Benard Washington (“Plaintiff”) is a state prisoner proceeding pro se with this

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civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff’s original

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Complaint filed on February 5, 2019, against defendants Sergeant David Hicks and Correctional

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Officer Hipolito Rocha (“Defendants”) for use of excessive force in violation of the Eighth

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Amendment. (ECF No. 1.)1

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On June 22, 2020, 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. 19.)
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On December 8, 2020, the court issued a Discovery and Scheduling Order establishing

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pretrial deadlines for the parties, including a discovery deadline of May 8, 2021 and a dispositive

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motions deadline of July 8, 2021. (ECF No. 28.) On January 19, 2021, the court issued an order

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extending the application of the Discovery and Scheduling Order as to defendant Hicks.2 (ECF

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No. 36.)

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On May 7, 2021, defendant Rocha filed a motion to modify the court’s Discovery and

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Scheduling Order. (ECF No. 44.) On May 10, 2021, defendant Hicks joined in defendant Rocha’s

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motion. (ECF No. 45.) On May 13, 2021, the court granted Defendants’ motion and extended

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the discovery deadline to August 6, 2021, and the dispositive motions deadline to October 6,

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2021. (ECF No. 46.)

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On August 23, 2021, defendant Hicks filed another motion to modify the Discovery and

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Scheduling Order. (ECF No. 72.) On September 1, 2021, the court granted the motion and

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extended the discovery deadline to December 6, 2021, and the dispositive motions deadline to

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February 6, 2022.

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On July 14, 2021, Defendant Rocha filed a motion to compel. (ECF No. 60.) On July 27,

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2021, Defendant Hicks joined in Defendant Rocha’s motion to compel. (ECF No. 63.) On July

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29, 2021, Plaintiff filed an opposition to Defendant Rocha’s motion to compel. (ECF No. 64.)

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On August 5, 2021, Defendant Rocha filed a reply to Plaintiff’s opposition. (ECF No. 68.) On

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August 6, 2021, Plaintiff filed an opposition to Defendant Hicks’ motion to compel. (ECF No.

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70.)
Defendants’ motions to compel are now before the court. Local Rule 230(l).

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II.

MOTION TO COMPEL

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Plaintiff is a state prisoner proceeding pro se with this civil rights action challenging his

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conditions of confinement. As a result, the parties were relieved of some of the requirements

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which would otherwise apply, including initial disclosure and the need to meet and confer in

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good faith prior to involving the Court in a discovery dispute.

Perez v. Smith, No.

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Defendant Rocha filed an answer to the complaint on December 7, 2020, and defendant Hicks
filed an answer to the complaint on December 23, 2020. (ECF Nos. 27, 36.)

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120CV00840DADSABPC, 2021 WL 4635918, at *1 (E.D. Cal. Sept. 29, 2021) (citing Fed. R.

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Civ. P. 26(a)(1); Fed. R. Civ. P. 26(c); Fed. R. Civ. P. 37(a)(1); Local Rules 240, 251).

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Further, where otherwise discoverable information would pose a threat to the safety and

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security of the prison or infringe upon a protected privacy interest, a need may arise for the Court

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to balance interests in determining whether disclosure should occur. Id. (citing see Fed. R. Civ.

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P. 26(c); Seattle Times Co. v. Rhinehart, 467 U.S. 20, 35 n.21 (1984) (privacy rights or interests

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implicit in broad purpose and language of Rule 26(c)); Burlington N. & Santa Fe Ry. Co. v.

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United States Dist. Court for the Dist. of Montana, 408 F.3d 1142, 1149 (9th Cir. 2005)

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(discussing assertion of privilege); Soto v. City of Concord, 162 F.R.D. 603, 616 (N.D. Cal.

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1995) (recognizing a constitutionally-based right of privacy that can be raised in discovery); see

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also Garcia v. Clark, No. 1:10-CV-00447-LJO-DLB PC, 2012 WL 1232315, at *6 n.5 (E.D. Cal.

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Apr. 12, 2012) (noting inmate’s entitlement to inspect discoverable information may be

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accommodated in ways which mitigate institutional safety concerns); Robinson v. Adams, No.

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1:08-cv-01380-AWI-BAM PC, 2012 WL 912746, at *2-3 (E.D. Cal. Mar. 16, 2012) (issuing

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protective order regarding documents containing information which implicated the safety and

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security of the prison); Orr v. Hernandez, No. CV-08-0472-JLQ, 2012 WL 761355, at *1-2 (E.D.

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Cal. Mar. 7, 2012) (addressing requests for protective order and for redaction of information

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asserted to risk jeopardizing safety and security of inmates or the institution if released); Womack

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v. Virga, No. CIV S-11-1030 MCE EFB P, 2011 WL 6703958, at *5-6 (E.D. Cal. Dec. 21, 2011)

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(requiring defendants to submit withheld documents for in camera review or move for a

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protective order)).

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However, this is a civil action to which the Federal Rules of Civil Procedure apply. The

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discovery process is subject to the overriding limitation of good faith, and callous disregard of

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discovery responsibilities cannot be condoned. Id. (citing Asea, Inc. v. Southern Pac. Transp.

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Co., 669 F.2d 1242, 1246 (9th Cir. 1981) (quotation marks and citation omitted)). “Parties may

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obtain 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 issues at

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stake in the action, the amount in controversy, the parties’ relative access to relevant information,
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the parties’ resources, the importance of the discovery in resolving the issues, and whether the

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burden or expense of the proposed discovery outweighs its likely benefit.” Fed R. Civ. P.

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26(b)(1).

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Generally, if the responding party objects to a discovery request, the party moving to

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compel bears the burden of demonstrating why the objections are not justified. Id. (citing Grabek

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v. Dickinson, No. CIV S-10-2892 GGH P, 2012 WL 113799, at *1 (E.D. Cal. Jan. 13, 2012);

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Womack, 2011 WL 6703958, at *3; Mitchell v. Felker, No. CV 08-119RAJ, 2010 WL 3835765,

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at *2 (E.D. Cal. Sep. 29, 2010); Ellis v. Cambra, No. 1:02-cv-05646-AWI-SMS PC, 2008 WL

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860523, at *4 (E.D. Cal. Mar. 27, 2008)). This requires the moving party to inform the Court

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

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why the information sought is relevant and why the responding party’s objections are not

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meritorious. Id. (citing Grabek, 2012 WL 113799, at *1; Womack, 2011 WL 6703958, at *3;

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Mitchell, 2010 WL 3835765, at *2; Ellis, 2008 WL 860523, at *4). However, the Court is vested

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with broad discretion to manage discovery and notwithstanding these procedures, Plaintiff is

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entitled to leniency as a pro se litigant; therefore, to the extent possible, the Court endeavors to

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resolve his motion to compel on its merits. Id. (citing Hunt v. County of Orange, 672 F.3d 606,

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616 (9th Cir. 2012); Surfvivor Media, Inc. v. Survivor Productions, 406 F.3d 625, 635 (9th Cir.

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2005); Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002)).

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Court’s Scheduling Order

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The court’s Discovery and Scheduling Order, issued on December 8, 2020, instructed the

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parties that “[r]esponses to written discovery requests shall be due 30 calendar days after the

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request is served.” (ECF No. 28 at 2:5.) The parties were also informed that “Local Rule 251

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and the requirements set forth in Federal Rules of Civil Procedure 26 and 37− that a party certify

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he/she has conferred in good faith or attempted to confer with the opponent in an effort to resolve

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the dispute prior to seeking court action − shall not apply unless otherwise ordered. Nevertheless,

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voluntary compliance with this provision of Federal Rules of Civil Procedure 26 and 37 is

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encouraged.” (Id. at 2:18-21.)

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B.

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Defendant Rocha seeks an order compelling Plaintiff to serve responses without objection

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to Defendant Rocha’s first set of interrogatories, first set of requests for production of documents,

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and second set of interrogatories, on the grounds that Plaintiff has completely failed to provide

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any responses. Defendant Rocha served a first set of interrogatories and a first set of requests for

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production of documents directed to Washington on May 25, 2021. Defendant Rocha also served

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a second set of interrogatories and a first set of requests for admissions directed to Plaintiff on

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June 7, 2021. Plaintiff’s time to respond expired and he completely failed to provide any

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responses. Plaintiff also communicated to counsel for Defendant Rocha in writing that he does

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not intend to provide responses. Defendant Rocha also moves under Federal Rule of Civil

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Procedure 37(a)(5) for an order requiring Plaintiff to pay Defendant Rocha’s reasonable expenses

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incurred in making this motion in the sum of $880.00.

Defendants’ Motions

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Defendant Hicks joined Defendant Rocha’s motion to compel on July 12, 2021. (ECF

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No. 63.) Defendant Hicks seeks an order compelling Plaintiff to serve responses to Defendant

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Hicks’ first set of interrogatories, first set of requests for admissions, and first set for requests for

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production of documents served on Plaintiff on June 7, 2021. (Decl. of Cecilia Martin, ¶ 5.)

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Defendant Hicks asserts that Plaintiff failed to provide any responses to Defendant Hicks’

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discovery requests by the July 12, 2021 deadline, but instead, communicated his outright refusal

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to respond in a letter sent to counsel for Defendant Rocha dated June 17, 2021. (Martin Decl.,

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¶¶ 6, 7.) Defendant Hicks moves to compel Plaintiff to respond to Defendant Hicks’ discovery

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requests and also moves under Federal Rule of Civil Procedure 37(a)(5) for an order requiring

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Plaintiff to pay Defendant Hicks’ reasonable expenses incurred in bringing this joinder. Counsel

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for Defendant Hicks reports that she spent at least 4.0 hours preparing the joinder to Defendant

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Rocha’s motion to compel at the current billing rate of $250.00 per hour, for a total of $1,000.00.

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(Martin Decl., ¶¶ 10, 11.)
Plaintiff’s Opposition

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C.

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Plaintiff claims that on May 5, 2021, Deputy Attorney General Goodwin forced him to

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participate in a seven-hour deposition hearing. Plaintiff asserts that every question Mr. Goodwin
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now seeks by interrogatory was either responded to or available to him by authority to access

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Plaintiff’s prison records.

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Plaintiff also objects to the magistrate judge’s May 13, 2021 order granting Defendants’

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motion to extend the discovery deadline from May 8, 2021 until August 6, 2021, and seeks to

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appeal the order to the district judge. For this reason, Plaintiff argues that Defendant Hicks is

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not entitled to file a motion to compel discovery because Defendant Hicks did not propound

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discovery to Plaintiff prior to the May 8, 2021 discovery cut-off date.

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Plaintiff also contends that because Defendant Hicks did not join in Defendant Rocha’s

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request for a deposition, Defendant Hicks has no standing to file a motion to compel. In addition,

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Plaintiff alleges that Mr. Goodwin seeks favoritism by the magistrate judge, who should be

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recused, and that Defendants should have provided Plaintiff with a copy of his deposition

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transcript.

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D.

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Defendants correctly state that the following issues raised by Plaintiff were previously

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resolved: Plaintiff’s objections to the magistrate judge’s order granting an extension of discovery;

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Plaintiff’s appeal to the district judge; and bias by and request for recusal of the magistrate judge.

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Plaintiff’s objections to the magistrate judge’s order granting an extension of discovery were

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resolved by the magistrate judge’s order issued on May 24, 2021. (ECF No. 51.) Plaintiff’s

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appeal to the district judge was resolved by the district judge’s order issued on August 5, 2021.

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(ECF No. 67). And Plaintiff’s allegations of bias and request for recusal of the magistrate judge

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were resolved by the court’s orders issued on May 27, 2021. (ECF No. 54, 55.)

Discussion

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Plaintiff’s argument that Defendants should have provided him with a copy of his entire

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deposition transcript along with the motion to compel is without merit. Defendants are not

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obligated to provide Plaintiff with a free copy of his deposition, and it is sufficient that

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Defendants attached the pertinent excerpts of Plaintiff’s deposition transcript to the motion to

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compel. Plaintiff must obtain a copy of his deposition transcript from the officer before whom

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the deposition was taken, upon payment of reasonable charges, not from Defendants. See

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Claiborne v. Battery, No. CIV S–06–2919, 2009 WL 530352 at *3 (E.D.Cal. Mar.3, 2009)
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(denying plaintiff’s request for a court order directing the defendant to provide him with a copy

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of his deposition transcript); Brown v. Castillo, No. CV F02–6018 AWI DLB, 2006 WL 1408452

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at *1 (E.D.Cal. May 22, 2006) (same).

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Here, it is clear that Plaintiff has entirely failed to respond to Defendant Rocha’s first set

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of interrogatories and first set of requests for production of documents, served on Plaintiff on

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May 25, 2021, and second set of interrogatories served on Plaintiff on June 7, 2021; and

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Defendant Hicks’ first set of interrogatories, first set of requests for admissions, and first set for

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requests for production of documents served on Plaintiff on June 7, 2021; and did not seek an

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extension of time to do so. In his replies, Plaintiff does not provide a valid reason why he should

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not be required to respond.

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Therefore, based on the evidence set forth above by Defendants Rocha and Hicks, the

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court finds that Plaintiff failed to timely respond to Defendants’ discovery requests thus waiving

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any objections. Therefore, Defendants’ motion to compel shall be granted.

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III.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

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Defendants Rocha and Hicks’ motions to compel, filed on July 14, 2021, and July
27, 2021, respectively, are granted;

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Within thirty days from the date of service of this order, Plaintiff is required to

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respond to:

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(1)

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production of documents, served on Plaintiff on May 25, 2021;
(2)

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Defendant Rocha’s first set of interrogatories and first set of requests for

Defendant Rocha’s second set of interrogatories served on Plaintiff on
June 7, 2021; and

(3)

Defendant Hicks’ first set of interrogatories, first set of requests for

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admissions, and first set of requests for production of documents served

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on Plaintiff on June 7, 2021;

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3.

Defendant Hicks’ first set of requests for admissions, served on Plaintiff on June

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7, 2021, is deemed admitted under Rule 36(a)(3) of the Federal Rules of Civil

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Procedure;

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No objections by Plaintiff to the discovery requests are permitted; and

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5.

Defendants’ motions for sanctions are denied, without prejudice to renewal of the

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motion at a later stage of the proceedings;
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Plaintiff’s failure to comply with this order shall result in a recommendation that
this case be dismissed.

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IT IS SO ORDERED.
Dated:

January 7, 2022

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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