Bontemps v. Barnes, et al

Filing 30

ORDER signed by Magistrate Judge Dale A. Drozd on 4/08/15 ordering defendants motion to compel plaintiff's responses to defendant's request for production, set one, and defendant's interrogatories, set one 29 is granted. Within 21 d ays of the date of service of this order, plaintiff shall serve on defense counsel his responses to defendants' request for production, set one and defendant's interrogatories, set one. Defendant's request for sanctions 29 is denied without prejudice. Defendant's request for a stay of this action 29 is denied. (Plummer, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

GREGORY C. BONTEMPS,

12

Plaintiff,

13
14

No. 2:12-cv-2249 TLN DAD P

v.

ORDER

RON BARNES et al.,

15

Defendants.

16
17

Plaintiff is a state prisoner proceeding pro se and in forma pauperis. Plaintiff seeks relief

18

pursuant to 42 U.S.C. § 1983. Pending before the court is defendant Abbott‟s motion to compel.

19

Plaintiff has not filed an opposition to the motion.1
BACKGROUND

20

Plaintiff is proceeding on his original complaint in this action. Therein, plaintiff alleges

21
22

that he was outside the chow hall when he told defendant Abbott that he needed to go get his

23

medication. Defendant Abbott then started violently searching plaintiff. During the search,

24

defendant Abbott pushed and shoved plaintiff, kicked plaintiff‟s leg, which was in an air cast, and

25

1

26
27
28

As this court previously advised plaintiff, he is required to respond or state in writing his lack
of opposition to all motions filed by defendants in this action. Plaintiff is cautioned that his
failure to timely oppose these motions may be deemed a waiver of opposition to them. See L.R.
230(l). Failure to oppose or affirmatively state his non-opposition to defense motions may also
result in a recommendation that this action be dismissed due to plaintiff‟s failure to prosecute the
action.

1

groped and squeezed plaintiff‟s genitals. Defendant Abbott also told plaintiff that he was

2

conducting the search due to the paperwork that plaintiff had filed against the defendant‟s fellow

3

correctional officers. At screening, the court found that plaintiff‟s complaint appeared to state a

4

cognizable claim for excessive use of force and retaliation against defendant Abbott. (Doc. Nos.

5

1 & 8.)

6
7

APPLICABLE LEGAL STANDARDS
Under Rule 26 of the Federal Rules of Civil Procedure, “[p]arties may obtain discovery

8

regarding any non-privileged matter that is relevant to any party‟s claim or defense.” Fed. R. Civ.

9

P. 26(b). “Relevant information need not be admissible at trial if the discovery appears

10
11

reasonably calculated to lead to the discovery of admissible evidence.” Id.
With respect to requests for production, a party may propound requests for production of

12

documents that are within the scope of Federal Rule of Civil Procedure 26(b). Fed. R. Civ. P.

13

34(a). With respect to interrogatories, a party may propound interrogatories related to any matter

14

that may be inquired into under Federal Rule of Civil Procedure 26(b). Fed. R. Civ. P. 33(a)(2).

15

Under Rule 37 of the Federal Rules of Civil Procedure, “a party seeking discovery may

16

move for an order compelling an answer, designation, production, or inspection.” Fed. R. Civ. P.

17

37(a)(3)(B). The court may order a party to provide further responses to an “evasive or

18

incomplete disclosure, answer, or response.” Fed. R. Civ. P. 37(a)(4). “District courts have

19

„broad discretion to manage discovery and to control the course of litigation under Federal Rule

20

of Civil Procedure 16.‟” Hunt v. County of Orange, 672 F.3d 606, 616 (9th Cir. 2012) (quoting

21

Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828, 833 (9th Cir. 2011)).

22
23

DEFENDANT’S MOTION TO COMPEL
Defendant Abbott has moved to compel plaintiff‟s responses to Defendant‟s Requests for

24

Production, Set One, and Defendant‟s Interrogatories, Set One. According to defense counsel,

25

defendant Abbott served plaintiff with the discovery requests on December 23, 2014, making

26

plaintiff‟s responses due February 9, 2015. Plaintiff has not responded to any of the discovery

27

requests. Defense counsel inquired about the discovery requests during plaintiff‟s deposition, and

28

plaintiff acknowledged he had received them but had not responded to them. Defendant Abbott
2

1

now seeks an order compelling plaintiff to respond to the discovery requests as well as attorney‟s

2

fees associated with filing the pending motion to compel and a stay of this case until plaintiff

3

complies with any court order. (Def.‟s Mot. to Compel at 3-5 & Exs. A & B.) As noted above,

4

plaintiff has not opposed or otherwise responded to defendant‟s motion.

5

Based on the record in this case, the court will grant defendant‟s motion to compel

6

plaintiff‟s responses to Defendant‟s Requests for Production, Set One, and Defendant‟s

7

Interrogatories, Set One. With respect to defendant‟s requests for production of documents, if

8

plaintiff has any relevant documents or materials in his possession or control, he must produce

9

them in response to defendant‟s discovery requests. If plaintiff is not in possession or control of

10

relevant materials, he must state under oath that the requested documents do not exist or are not in

11

his possession or control. See Fed. R. Civ. P. 34(a)(1). With respect to the interrogatories posed

12

by defendants, plaintiff must answer each interrogatory “separately and fully in writing under

13

oath.” Fed. R. Civ. P. 33(b)(3). Plaintiff is cautioned that “[t]he discovery process is subject to

14

the overriding limitation of good faith obligation.” Asea v. Southern Pacific Transportation Co.,

15

669 F.2d 1242, 1247 (9th Cir. 1981).

16

Turning now to defendant‟s request for the award of monetary sanctions against plaintiff,

17

under Rule 37(d) of the Federal Rules of Civil Procedure, the court has broad discretion to order

18

sanctions if a party fails to serve answers, objections, or written responses to properly served

19

discovery requests. See Fed. R. Civ. P. 37(d). The court finds that defendant‟s request for

20

monetary sanctions is premature. Plaintiff is an inmate proceeding pro se and in forma pauperis.

21

Although plaintiff‟s inability to pay should not be the only reason for the court‟s denial of

22

monetary sanctions, it is a factor that may be considered. See Warren v. Guelker, 29 F.3d 1386,

23

1390 (9th Cir. 1994). As such, the court will deny defendant‟s request for the imposition of

24

sanctions without prejudice to the renewal of that request should plaintiff fail to comply with this

25

court‟s order.

26

Finally, as to defendant‟s request for a stay, the court declines to enter a stay of this action

27

at this time. If defense counsel finds that additional time is needed to file a dispositive motion

28

because of plaintiff‟s failure to timely respond to defendant‟s discovery requests, counsel may
3

1

request a modification to the scheduling order at a later date. Under the current scheduling order

2

governing this action, dispositive motions are not due for filing until May 22, 2015.

3

Accordingly, the court will grant defendants‟ motion to compel but deny defendant‟s

4

request for monetary sanctions without prejudice and defendant‟s request for a stay of this action.

5

CONCLUSION

6

Accordingly, IT IS HEREBY ORDERED that:

7

1. Defendant‟s motion to compel plaintiff‟s responses to Defendant‟s Requests for

8
9

Production, Set One, and Defendant‟s Interrogatories, Set One (Doc. No. 29) is granted;
2. Within twenty-one days of the date of service of this order, plaintiff shall serve on

10

defense counsel his responses to Defendant‟s Requests for Production, Set One, and Defendant‟s

11

Interrogatories, Set One;

12

3. Defendant‟s request for sanctions (Doc. No. 29) is denied without prejudice; and

13

4. Defendant‟s request for a stay of this action (Doc. No. 29) is denied.

14

Dated: April 8, 2015

15
16
17

DAD:9
bont2249.mtc

18
19
20
21
22
23
24
25
26
27
28
4