Baker v. Perez et al

Filing 95

ORDER signed by Magistrate Judge Kendall J. Newman on 12/30/2011 ORDERING that plaintiff's 88 and 89 motion to compel and motion for sanctions are DENIED; and plaintiff's 90 motion to enforce the court order is DENIED. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL BAKER,
Plaintiff,

ORDER

vs.

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No. 2: 09-cv-2757 MCE KJN P

Defendants.

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PEREZ, et al.,

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/

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On December 1, 2011, the undersigned granted plaintiff fourteen days to file a

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motion to compel and for sanctions regarding defendants’ failure to provide him with documents

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requested in a request for production of documents. On December 5, 2011, plaintiff filed a

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motion to compel and a separate motion for sanctions. On December 13, 2011, defendants filed

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an opposition. For the following reasons, plaintiff’s motions to compel and for sanctions are

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denied.

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On August 24, 2011, the undersigned issued a 27 page order granting in part and

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denying in part plaintiff’s motion to compel. On October 12, 2011, the undersigned granted in

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part and denied in part plaintiff’s request for reconsideration of the August 24, 2011 order. In

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granting the motion for reconsideration, the undersigned ordered defendants to file a further

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response to request for production of documents no. 10.
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In the pending motion to compel, plaintiff argues that defendants did not provide

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an adequate further response to request for production of documents no. 10. Request no. 10

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sought all documents regarding medication/distribution policies in effect at High Desert State

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Prison (“HDSP”). In their opposition to the original motion to compel, defendants stated that

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they had provided plaintiff with hundreds of documents and had nothing more to add. In the

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request for reconsideration, plaintiff stated that in response to request for production of

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documents no. 10, defendants provided Operational Procedure # 744 regarding pain

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management. Plaintiff stated that attachment C was missing from this document. In the order

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granting the request for reconsideration, defendants were ordered to file supplemental briefing

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addressing whether there was an attachment C to Operational Procedure # 744.

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In their supplemental briefing, defendants stated that Operational Procedure # 744

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did not have an attachment C. Attached as an exhibit to defendants’ supplemental briefing was a

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copy of Operational Procedure # 744. This document referred to several attachments, including

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an Attachment C. In the pending motion to compel, plaintiff requests that defendants be ordered

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to provide him with the Attachment C referred to in Operational Procedure # 744. Plaintiff also

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requests that defendants be sanctioned for not previously providing this document.

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In their opposition to the pending motion to compel, defendants state that they

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have now provided plaintiff with Attachment C after obtaining it from the litigation coordinator.

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Accordingly, plaintiff’s motion to compel is denied.

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Regarding the request for sanctions defendants state, in relevant part, that when

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defense counsel first reviewed Operational Procedure # 744, he did not see any attachments or

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exhibits to this document. Defendants state that defense counsel was not aware of what plaintiff

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was seeking until the court highlighted what he was looking for in the December 1, 2011 order.

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The undersigned does not find that defendants acted in bad faith in responding to

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plaintiff’s request for production of documents no. 10. Plaintiff’s original motion to compel

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addressed 53 requests for admissions, nine requests for production of documents and 24
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interrogatories. In responding to plaintiff’s voluminous discovery requests, defendants

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inadvertently failed to provide one document. Nothing in the record suggests that defendants

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intentionally withheld Attachment C to Operational Procedure # 744. Accordingly, the motion

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for sanctions is denied.

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On December 5, 2011, plaintiff filed a motion to enforce the October 12, 2011

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order. This motion also seeks to compel defendants to produce Attachment C. This motion is

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denied because defendants have now produced Attachment C.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to compel and motion for sanctions (Dkt. Nos. 88 and 89)

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are denied;

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2. Plaintiff’s motion to enforce the court order (Dkt. No. 90) is denied.
DATED: December 30, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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bak2757.com(3)

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