Kirk v. Richards

Filing 81

ORDER signed by Magistrate Judge Carolyn K. Delaney on 5/4/2012 ORDERING that plaintiff's 56 motion to compel defendant to answer interrogatories and requests for production of documents is GRANTED in part and DENIED in part; no later than 6/30/2012, plaintiff may file a supplement to his pending 76 motion for summary judgment as stated in this order; and plaintiff's 64 motion to subpoena witnesses is DENIED as premature. (See Order for Details) (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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LARRY W. KIRK,

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Plaintiff,
vs.
T. RICHARDS,
Defendant.

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No. CIV S-10-373 GEB CKD P

ORDER
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Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant

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to 42 U.S.C. § 1983. Pending before the court is plaintiff’s January 17, 2012 motion to compel

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defendant Richards to respond to certain interrogatories and requests for production of

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documents (RFPs). (Dkt. No. 56.) Richards filed an opposition on February 2, 2012, after which

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plaintiff filed a reply (listed on the docket as an “opposition”) on February 23, 2012. (Dkt. Nos.

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58, 61.) Also pending is plaintiff’s March 5, 2012 motion to subpoena witnesses, to which

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defendant has filed an opposition. (Dkt. Nos. 64, 69.) Pursuant to the analysis below, the court

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will grant plaintiff’s motion to compel in part and deny it in part. The court will deny plaintiff’s

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subpoena motion.

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This action proceeds against defendant Richards on the complaint filed February
12, 2010, in which plaintiff alleges that Richards violated his rights under the Eighth Amendment
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by failing to protect him from his cellmate on March 19, 2009. (Dkt. No. 1.) A scheduling order

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issued July 29, 2010 set the discovery deadline as November 12, 2010. (Dkt. No. 11.) After

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further proceedings, discovery was re-opened, and the operative scheduling order, issued October

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18, 2011, reset the discovery deadline as January 27, 2012. (Dkt. No. 51.)

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I. Interrogatories

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Plaintiff moves to compel defendant to answer the following interrogatories: Nos.

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3, 4, 6, 7, and 10-31. In his motion, plaintiff does not argue why defendant’s responses are

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deficient, but merely states that the responses “are needed in order for [plaintiff] to proceed.”

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(Dkt. No. 56.) In his reply to defendant’s opposition, plaintiff adds that defendant’s “answers . . .

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are inadequate and misleading. He has full knowledge of these answers to all of the questions

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asked because he was in fact there.” (Dkt. No. 61.)

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Attached are defendant’s responses to plaintiff’s Interrogatories, Set One, signed

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by counsel for defendant on December 29, 2011. Defendant raised various objections to

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Interrogatory Nos. 3, 4, 6, 10, 11, 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, 24 and 25, and did not

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otherwise respond. To Interrogatory No. 7, defendant both objected and provided a response. To

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Interrogatories Nos. 17 and 18, defendant raised no objections and provided responses. To

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Interrogatories Nos. 26-31, defendant objected that plaintiff had exceeded the number of

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interrogatories permitted under Federal Rule of Civil Procedure 33(a)(1) and did not otherwise

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respond. (Dkt. No. 56 at 2-11.)

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Defendant argues that plaintiff has not met his burden to show why defendant’s

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responses are inadequate or his objections unjustified. See Williams v. Cate, 2011 WL 6217378

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at *1 (E.D. Cal. Dec. 14, 2011) (“Plaintiff bears the burden of informing the Court . . . for each

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disputed response, why Defendant’s objection is not justified. . . . Plaintiff may not simply assert

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that he has served discovery responses, that he is dissatisfied, and that he wants an order

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compelling further responses.”), citing Ellis v. Cambra, 2008 WL 860523 at *4 (E.D. Cal. Mar.

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27, 2008); see also Cal. Rules of Court, Rule 3.1345 (party moving to compel discovery
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responses must include reasons why further answers should be ordered: legal or factual

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arguments why the answers given were incomplete or nonresponsive, or the objections invalid).

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The court finds defendant’s argument to have merit. Except in the most general

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sense, plaintiff has not attempted to show why defendant’s objections to the cited interrogatories

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were invalid. Thus the court will deny plaintiff’s motion as to the interrogatory responses.

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II. Requests for Production

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Plaintiff also seeks to compel defendant to produce the following documents:

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1. Post assignment of T. Richards dated 3-19-09 (position
assignment)

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2. Any and all rules, regulations, procedures, policies and training
including memos regarding what staff are to do when made aware
by an inmate[] that th[ere] are concerns relating to safety concern
problem issues.

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(Dkt. No. 56-1.) Attached are defendant’s responses to Plaintiff’s Request for Production of

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Documents, Set One, signed by defendant’s counsel on November 16, 2010. (Dkt. No. 56-1 at 2-

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6.)

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In RFP No. 3, plaintiff asked defendant to “produce a copy of your work schedule

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and assignment.” As the previous RFP concerned defendant’s employment on March 19, 2009,

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it could be reasonably inferred that plaintiff was seeking a copy of defendant’s work schedule

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and assignment on that date. (Dkt. No. 56-1 at 3.) Defendant objected that the request was

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served after the close of discovery (citing the original scheduling order) and did not otherwise

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respond.

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In RFP No. 8, plaintiff asked: “What is the policy when an inmate informs an

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official that there is a problem with their cellmate?” Defendant objected that the request was

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served after the close of discovery (citing the original scheduling order) and did not otherwise

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respond.

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Defendant propounded his responses after the initial discovery deadline of
November 12, 2010; however, discovery was later reopened and the discovery deadline reset as
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January 27, 2012. Under Federal Rule of Civil Procedure 26(3)(1)(A), a responding party has a

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duty to supplement his or her discovery response “in a timely manner if the party learns that in

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some material respect the disclosure or response is incomplete or incorrect.” When the discovery

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deadline was changed, defendant’s November 2010 discovery responses became “incorrect,”

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triggering a duty to supplement and, at the least, offer different objections now that the timeliness

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of these requests was not an issue.

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Under these circumstances, the court will order defendant to provide plaintiff with
the following documents insofar as they are under defendant’s “possession, custody, or control”:
(1) documentation of defendant’s position assignment and work

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schedule on March 19, 2009; and

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(2) Any and all rules, regulations, procedures, policies and training

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materials regarding what CDCR staff are to do when made aware

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by an inmate that the inmate is concerned for his own safety.

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See Fed. R. Civ. Proc. 34(a).

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Upon receiving and reviewing these documents, plaintiff may file a supplement to

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his pending motion for summary judgment (Dkt. No. 76) submitting any of these newly-acquired

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documents (and nothing else), along with an optional supplemental brief not to exceed 5 pages.

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As the parties’ motions for summary judgment are pending, the court will deny
plaintiff’s motion to subpoena witnesses for trial (Dkt. No. 64) as premature.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s January 17, 2012 motion to compel defendant to answer

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interrogatories and requests for production of documents (Dkt. No. 56) is granted in part and

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denied in part as follows:

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(a) Within 14 days defendant shall produce to plaintiff the

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following documents insofar as they are under defendant’s

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“possession, custody, or control”:
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(1) documentation of defendant’s position assignment and

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work schedule on March 19, 2009; and

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(2) Any and all rules, regulations, procedures, policies and

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training materials regarding what CDCR staff are to do when made

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aware by an inmate that the inmate is concerned for his own safety.

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(b) Plaintiff’s motion to compel is otherwise denied.

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2. No later than June 30, 2012, plaintiff may file a supplement to his pending

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motion for summary judgment (Dkt. No. 76) submitting any of the aforementioned documents

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produced by defendant (and nothing else), along with an optional supplemental brief not to

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exceed 5 pages.

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3. Plaintiff’s March 5, 2012 motion to subpoena witnesses (Dkt. No. 64) is

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denied as premature.

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Dated: May 4, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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kirk0373.mtc

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