Draper v. Rosairo et al

Filing 71

ORDER signed by Magistrate Judge Edmund F. Brennan on 11/01/12 denying 66 Motion to Compel and denying 67 Motion for writs of habeas corpus ad testificandum. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN CLINT DRAPER,
Plaintiff,

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No. 2:10-cv-0032 KJM EFB P

vs.
D. ROSARIO,
ORDER

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Defendant.
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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. He moves to compel defendant to produce (1) responses to his “August 4, 2012”

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request for production of documents, (2) a video made on September 9, 2009, and (3) his

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medical records from 2008 through 2012. He also requests writs of habeas corpus ad

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testificandum to ensure that a jury can hear testimony from him and his incarcerated witness(es).

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Dckt. Nos. 66, 67. For the reasons stated below, plaintiff’s motion are denied.

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Plaintiff seeks to compel defendants to respond to his request for production of

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documents. If a party, in response to a request for production under Rule 34, fails to produce or

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permit inspection, the discovering party may move for an order compelling production. Fed. R.

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Civ. P. 37(a)(3). As the moving party, plaintiff bears the burden of informing the court of (1)

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which discovery requests are the subject of his motion to compel, (2) which of defendants’
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responses are disputed, (3) why he believes defendants’ responses are deficient, (4) why

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defendants’ objections are not justified, and (5) why the information he seeks through discovery

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is relevant to the prosecution of this action. See, e.g., Brooks v. Alameida, No. CIV S-03-2343

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JAM EFB P, 2009 U.S. Dist. LEXIS 9568, 2009 WL 331358, at *2 (E.D. Cal. Feb. 10, 2009)

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(“Without knowing which responses plaintiff seeks to compel or on what grounds, the court

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cannot grant plaintiff’s motion.”); Ellis v. Cambra, No. CIV 02-05646-AWI-SMS PC, 2008 U.S.

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Dist. LEXIS 109050, 2008 WL 860523, at *4 (E.D. Cal. Mar. 27, 2008) (“Plaintiff must inform

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

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disputed response, inform the court why the information sought is relevant and why Defendant’s

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objections are not justified.”).
Plaintiff’s motion does not include a copy of his requests for production or otherwise

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identify which of his requests for production are the subject of his motion. He does not explain

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how or if defendant responded to his requests or why he is dissatisfied with any particular

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response or objection. Defendant opposes the motion, with exhibits showing that plaintiff did

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not serve his request, entitled “Notice Taking Plaintiff’s Deposition Via Videoconference with

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Production of Documents and Medical Records And Medical Documents,” until August 7, 2012.

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Dckt. No. 70, Ex. A. Pursuant to the court’s scheduling order, requests for written discovery had

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to be served by August 6, 2012. Dckt. No. 56. Accordingly, defendant properly informed

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plaintiff that he would not respond to plaintiff’s untimely request. Dckt. No. 70, Ex. B. The

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court will not compel defendant to respond.

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Defendant also shows that plaintiff made an earlier request for all tape recordings,

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transcripts, notes, and memoranda made by investigating personnel regarding a September 9,

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2009 incident where defendant used force on plaintiff. Id., Ex. C. In his response, defendant

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informed plaintiff that he was providing him with all responsive documents in his possession,

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custody or control and that he would allow plaintiff to review a video interview that was

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conducted on September 30, 2009. Id., Exs. C, D. One of the documents provided to plaintiff,
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dated June 25, 2010, states that a September 9, 2009 video-recorded interview of plaintiff was

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inadvertently recorded on an incorrect setting and all attempts to convert it had been exhausted.

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Id., Ex. D (Dckt. No. 70-3 at 50). Plaintiff does not contest defendant’s representation and

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defendant cannot be compelled to produce a video that does not exist.

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In response to plaintiff’s motion to compel production of medical records, defendant

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responds that under Title 15, section 3370(c) of the California Code of Regulations, plaintiff can

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review his medical records. Plaintiff does not state whether he followed prison procedures for

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reviewing his medical records, or otherwise explain why defendant should be compelled to

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provide them to him. To the extent that plaintiff has not yet accessed his medical records, he

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must properly request such access through the procedures available at his place of confinement.
Finally, plaintiff requests that he and his incarcerated witnesses be brought to court to

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testify before a jury. Plaintiff’s request is denied as premature. If and when this case is

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scheduled for trial, the court will provide the parties with instructions for obtaining the

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attendance of any incarcerated witnesses.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion to compel (Dckt. No.

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66), and motion for writs of habeas corpus ad testificandum (Dckt. No. 67) are denied.

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DATED: November 1, 2012.

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