Hill v. Director of Corrections et al

Filing 34

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/10/13 ORDERING that plaintiffs motion to compel 27 is denied, and defendants motion to compel 26 is granted. Within 21 days from the date of this order, plaintiff shall (1) serve defendant s with a signed verification that his interrogatory responses, dated April 23, 2013, were made under oath; (2) serve defendants with further responses to Special Interrogatories, Nos. 7 and 8; and (3) serve signed written responses to defendants Request for Production of Documents. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENNETH HILL,

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Plaintiff,

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No. 2:11-cv-3409-EFB P

v.

ORDER

DIRECTOR OF CORRECTIONS, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in an action

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brought under 42 U.S.C. § 1983. Defendants have filed a motion to compel, which plaintiff has

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not opposed. Plaintiff has also filed a motion to compel, which defendants do oppose. As stated

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below, defendants’ motion is granted and plaintiff’s motion is denied.

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I.

Defendants’ Motion to Compel
Defendants move to compel further responses to their special interrogatories and requests

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for production. As for the interrogatories, defendants first argue that plaintiff should be ordered

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to serve a verification of his responses. See Fed. R. Civ. P. Rule 33(b)(3) (“Each interrogatory

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must, to the extent it is not objected to, be answered separately and fully in writing and under

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oath.”). Plaintiff signed his interrogatory responses but failed to verify that they were made under

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oath. See ECF No. 26, Marquez Decl., Exs. E, F, G. Accordingly, plaintiff must serve on

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defendants a signed verification that his interrogatory responses, dated April 23, 2013, were made

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under oath.
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Defendants next argue that plaintiff’s response of “See Special Interrogatory 1-6 Medical

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records complaint” to special interrogatories nos. 7 and 8 is deficient. In special interrogatory no.

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7, each defendant asked plaintiff to identify all documents that support his contention that the

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defendant violated plaintiff’s civil or constitutional rights. In special interrogatory no. 8, each

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defendant asked plaintiff to identify all documents that support his contention that he suffered

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injury or harm as result of the purported acts or omissions of that defendant. Aside from the fact

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that plaintiff’s responses are not complete in themselves and are thus improper because they refer

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to prior responses, they are also deficient because it is not clear which documents plaintiff refers

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to when he states “Medical records complaint.” Accordingly, plaintiff’s responses to special

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interrogatory nos. 7 and 8 are evasive or incomplete and an order compelling further responses is

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appropriate under Rules 37(a)(3)(B)(iii) and (a)(4).1

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Defendants also move to compel written responses to their requests for production. They

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state that plaintiff provided documents in response, but did not provide written responses to their

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requests. With respect to each document request, plaintiff must respond by restating the request

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and providing a separate and complete written response to it. See Burlington Northern & Santa

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Fe Ry. v. United States Dist. Court, 408 F.3d 1142, 1147 (9th Cir.. 2005) (“Rule 34 requires that a

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written response to a discovery request be served within 30 days of the service of the request.”).

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Defendants’ motion to compel written responses to their document requests must also be granted.

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In his responses to each document request, plaintiff must either identify the documents that he has

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produced, or explain why he has not produced any.

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II.

Plaintiff’s Motion to Compel
In plaintiff’s August 12, 2013 motion to compel, he states that defendants have failed to

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respond to his requests for production. ECF No. 27. Defense counsel responded through a

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declaration, stating that she served responses to plaintiff’s request for production on May 24,

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2013, and that she supplemented those responses with copies of medical records, served on

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August 15, 2013. ECF No. 28 ¶¶ 4, 5. Defense counsel states that she is not aware of any

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Plaintiff must respond to the requests by listing specific, identifiable documents.
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outstanding discovery requests. Id. ¶ 6. Plaintiff did not file a reply. In light of defense

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counsel’s representations, particularly the fact that she supplemented her response to plaintiff’s

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document requests after plaintiff filed the instant motion to compel, it appears as though

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plaintiff’s motion is now moot.

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III.

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Order
Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion to compel (ECF No. 27)

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is denied, and defendants’ motion to compel (ECF No. 26) is granted. Within 21 days from the

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date of this order, plaintiff shall (1) serve defendants with a signed verification that his

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interrogatory responses, dated April 23, 2013, were made under oath; (2) serve defendants with

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further responses to Special Interrogatories, Nos. 7 and 8; and (3) serve signed written responses

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to defendants’ Request for Production of Documents.

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Dated: October 10, 2013.

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