Moore v. Sacramento County Sheriffs Dept et al

Filing 61

ORDER signed by Magistrate Judge Dale A. Drozd on 2/17/15 ORDERING that Plaintiffs proposed third amended complaint (Doc. No. 38 ) is disregarded; Plaintiffs motion for sanctions (Doc. No. 44 ) is denied; Defendants motion to compel (Doc. No. [4 7]) is granted. Within 45 days of the date of service of this order, plaintiff shall serve on defense counsel further responses to defendants special set of interrogatories and defendants requests for production; Defendants request for monetary s anctions (Doc. No. 47 ) is denied without prejudice; Plaintiffs motions for summary judgment (Doc. Nos. 34 , 35 , 39 , 42 , 43 , 45 ) are denied without prejudice to plaintiffs filing of, if appropriate, one motion for summary judgment as to all defendants; Defendants motion to stay briefing on plaintiffs motions for summary judgment (Doc. Nos. 46 ) is denied as unnecessary; Defendants motions to modify the courts discovery and scheduling order (Doc. Nos. 48 & 57 ) are granted. Withi n 60 days of the date of this order, defendants shall take plaintiffs deposition, if any. Within 120 days of this order, the parties shall file any motion for summary judgment they wish to pursue. Except as provided in this order, the courts discovery and scheduling order remains in effect; and Plaintiffs motion for default (Doc. No. 55 ) is denied.(Dillon, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

ADRIAN EUGENE MOORE,

12

Plaintiff,

13
14
15

No. 2:13-cv-1386 MCE DAD P

v.

ORDER

SACRAMENTO COUNTY SHERIFF’S
DEPARTMENT et al.,
Defendants.

16
17

Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42

18
19

U.S.C. § 1983. Pending before the court is plaintiff’s third amended complaint as well as several

20

discovery and dispositive motions brought by the parties. Below, the court will address each in

21

turn.

22
23

BACKGROUND
Plaintiff is proceeding on a second amended complaint. At screening, the court found that

24

plaintiff’s complaint appeared to state a cognizable claim against defendants Jennings, Morris,

25

and Carriger for deliberate indifference to plaintiff’s medical needs while he was incarcerated at

26

the Sacramento County Jail when they allegedly ignored his medical chrono for a lower tier

27

housing assignment. The court also found that plaintiff’s complaint appeared to state a

28

cognizable claim against defendant Dr. Bauer for deliberate indifference to plaintiff’s medical
1

1

needs when he allegedly failed to adequately treat plaintiff’s injuries after plaintiff fell down the

2

stairs at the jail. Finally, the court found that plaintiff’s complaint appeared to state a cognizable

3

claim against defendant Dr. Abshire for deliberate indifference to plaintiff’s medical needs when

4

she allegedly discontinued plaintiff’s seizure medication and instead prescribed him psychiatric

5

medication without plaintiff’s knowledge thereby causing plaintiff to suffer an allergic reaction

6

and cardiac arrest. (Doc. No. 14)
PLAINTIFF’S THIRD AMENDED COMPLAINT

7

On July 3, 2014, plaintiff filed a third amended complaint with the court.1 (Doc. No. 38)

8
9

Under Rule 15 of the Federal Rules of Civil Procedure, plaintiff may amend his complaint once

10

as a matter of course within twenty-one days after serving it or twenty-one days after service of a

11

responsive pleading or motion pursuant to Rule 12(b). See Fed. R. Civ. P. 15. In all other cases,

12

plaintiff may amend his complaint “only with the opposing party’s written consent or the court’s

13

leave.” Id.

14

In this case, plaintiff filed his third amended complaint more than two months after

15

defendants filed their answer. Plaintiff has not obtained defendants’ written consent or the court’s

16

leave to amend his complaint. Accordingly, the court will disregard plaintiff’s proposed third

17

amended complaint, and the case will continue to proceed on plaintiff’s second amended

18

complaint.

19
20

DISCOVERY MOTIONS
I. Plaintiff’s Motion for Sanctions for Discovery Violations
Plaintiff has filed a motion for sanctions based on defendants’ alleged “critical discovery

21
22

violations.” (Pl.’s Mot. for Sanctions (Doc. No. 44) at 2-3.) Therein, plaintiff contends that

23

defendants’ responses to his interrogatories were untimely. (Id. at 2.) Plaintiff also contends that

24

defense counsel sent him a letter asking him to withdraw his objection to production of his

25

1

26
27
28

The third amended complaint was erroneously docketed as a “first amended complaint.” (Doc.
No. 38.) Plaintiff filed his original complaint in this action on July 11, 2013. (Doc. No. 1.) He
filed a first amended complaint on July 29, 2013. (Doc. No. 5.) Plaintiff filed a second amended
complaint on January 7, 2014. (Doc. No. 13.) On April 22, 2014, defendants filed an answer in
response to the second amended complaint. (Doc. No. 30.) Plaintiff’s July 3, 2014 filing is
therefore his proposed third amended complaint.
2

1

medical records that warrants the imposition of sanctions. (Id.at 2-3.) Finally, plaintiff contends

2

that defense counsel sent him a letter advising him that his most recent discovery requests were

3

untimely and that letter also warrants the imposition of sanctions. (Id.) Defendants have filed an

4

opposition to plaintiff’s motion for sanctions, arguing that they have not engaged in any

5

misconduct. (Defs.’ Opp’n to Pl.’s Mot. for Sanctions (Doc. No. 49) at 2-5 & Paul Decl.)

6

In this case, defendants’ conduct clearly does not warrant the imposition of sanctions.

7

First, with respect to defendants’ responses to plaintiff’s interrogatories, although plaintiff

8

requested responses from defendants within thirty days, under the court’s discovery and

9

scheduling order, defendants were allowed to serve their responses within forty-five days after

10

service of the discovery request. Defendants have submitted evidence to the court indicating that

11

plaintiff served his interrogatories on defense counsel on May 29, 2014. Defendants timely

12

served their responses to plaintiff’s request for discovery on July 16, 2014. See Fed. R. Civ. P.

13

6(d) (adding three days to the date a party must act when service is made via United States mail).

14

Accordingly, no sanctions are warranted based on the timing of defendants’ responses to

15

plaintiff’s interrogatories.

16

As to defense counsel’s letter asking plaintiff to withdraw his objection to production of

17

his medical records, it is not clear to the court why plaintiff believes the letter in question

18

warrants the imposition of sanctions. In that letter, defense counsel informed plaintiff that he

19

learned from the prison’s Litigation Coordinator that plaintiff had objected to production of his

20

medical records pursuant to a subpoena counsel served on the Department of Corrections.

21

Defense counsel informed plaintiff that if he refused to withdraw that objection, defense counsel

22

would be forced to file a motion to compel. This sort of meet and confer letter attempting to

23

resolve discovery disputes in order to avoid the need for a discovery motion clearly does not

24

warrant the imposition of sanctions.

25

Finally, as to defense counsel’s letter informing plaintiff that his most recent discovery

26

requests were untimely, plaintiff is advised that defense counsel is correct in that regard, and

27

therefore defendants are not obligated to respond to plaintiff’s untimely discovery requests.

28

Specifically, plaintiff does not dispute that the proofs of service for plaintiff’s requests for
3

1

admission and requests for production are dated June 26, 2014. Under the court’s discovery and

2

scheduling order, however, plaintiff was required to serve any discovery requests on or before

3

June 16, 2014, sixty days prior to the discovery deadline. Again, under these circumstances, the

4

imposition of sanctions as requested by plaintiff is unwarranted.
Accordingly, for all of the foregoing reasons, the court will deny plaintiff’s motion for

5
6

sanctions.

7

II. Defendants’ Motion to Compel
Defense counsel has filed a motion to compel further discovery. (Defs.’ Mot. to Compel

8
9

(Doc. No. 47) at 2-8 & Exs. A-J.) Therein, counsel argues that plaintiff responded to virtually all

10

of defendants’ interrogatories with a nonspecific objection and a vague reference to the various

11

motions for summary judgment plaintiff has filed, plaintiff’s complaint, or plaintiff’s other

12

discovery responses. (Id. at 3-5.) According to defense counsel, plaintiff did not provide actual

13

answers to the interrogatories and failed to verify his responses. (Id.) Defense counsel also

14

argues that plaintiff responded in similar fashion to defendants’ requests for production of

15

documents and failed to produce a single document. (Id.) Defense counsel seeks a court order

16

compelling plaintiff to serve further responses to defendants’ interrogatories and requests for

17

production. (Id. at 5.) Defense counsel also requests that monetary sanctions be imposed on

18

plaintiff. (Id. at 6-7.) Plaintiff has not opposed or otherwise responded to defendant’s motion to

19

compel.

20

The court will grant defendants’ motion to compel. With respect to defendants’

21

interrogatories, plaintiff’s responses are inadequate. Most of plaintiff’s responses merely refer

22

defense counsel to plaintiff’s motions for summary judgment or other documents (“SEE

23

PARTIAL SUMMARY JUDGMENT MOTION FILED 5.13.2014 AGAINST [SIC] THIS

24

DEFENDANT.”). However, “[e]ach interrogatory must . . . be answered separately and fully in

25

writing under oath.” Fed. R. Civ. P. 33(b)(3). Plaintiff has neither fully answered nor signed his

26

responses to defendants’ interrogatories under oath. As such, the court will order plaintiff to

27

serve further responses to defendants’ interrogatories where he has inadequately responded to

28

/////
4

1

them as described above.2
With respect to defendants’ requests for production of documents, plaintiff’s responses are

2
3

also inadequate. Again, most of plaintiff’s responses merely refer defense counsel to plaintiff’s

4

motions for summary judgment or other documents (“SEE PARTIAL SUMMARY JUDGMENT

5

MOTION FILED 5.13.2014 AGAINST [SIC] THIS DEFENDANT AND DECLARATORY

6

JUDGMENT DATED 6.26.14.”). However, if plaintiff has relevant documents or materials in

7

his possession or control, he must produce them in response to defendants’ discovery requests. If

8

plaintiff is not in possession or control of relevant materials, he must state under oath that the

9

requested documents do not exist or are not in his possession or control. See Fed. R. Civ. P.

10

34(a)(1). Plaintiff’s responses to defendants’ requests for production of documents do not

11

comply with Rule 34. As such, the court will order plaintiff to serve further responses to

12

defendants’ requests for production where he has inadequately responded to them as described

13

above.3

14

Turning now to defendants’ request monetary sanctions against plaintiff, under Rule 37(d)

15

of the Federal Rules of Civil Procedure, the court has broad discretion to order sanctions if a party

16

fails to serve answers, objections, or written responses to properly served discovery requests. See

17

Fed. R. Civ. P. 37(d). As noted above, plaintiff’s responses to defendants’ discovery requests are

18

inadequate. However, the court finds that defendants’ request for monetary sanctions is

19

premature. Plaintiff is an inmate proceeding pro se and in forma pauperis. Although plaintiff’s

20

inability to pay should not be the only reason for the court’s denial of monetary sanctions, it can

21

be considered. See Warren v. Guelker, 29 F.3d 1386, 1390 (9th Cir. 1994). As such, the court

22

will deny defendants’ request for the imposition of sanctions without prejudice to the renewal of

23
24
25
26
27
28

2

Plaintiff is directed to serve defense counsel with further verified responses to Defendant
Abshire’s Special Interrogatories (Set One), Defendant Bauer’s Special Interrogatories (Set One),
Defendant Jennings Special Interrogatories (Set One), Defendant Carriger’s Special
Interrogatories (Set One), and Defendant Morris’ Special Interrogatories (Set One).
3
Plaintiff is directed to serve defense counsel with further verified responses to Defendant
Abshire’s Request for Production of Documents (Set One), Defendant Bauer’s Request for
Production of Documents (Set One), Defendant Jennings’ Request for Production of Documents
(Set One), and Defendant Morris’ Request for Production of Documents (Set One).
5

1

that request should plaintiff fail to comply with this court’s order.
For all the foregoing reasons, the court will grant defendants’ motion to compel but deny

2
3

defendants’ request for monetary sanctions without prejudice.
PLAINTIFF’S MOTIONS FOR SUMMARY JUDGMENT

4
5

Plaintiff has filed six motions for summary judgment, all of which the court will deny

6

without prejudice. As an initial matter, plaintiff’s motions are duplicative. Of the six motions for

7

summary judgment, plaintiff has filed four of those motions against defendant Carriger. (Doc.

8

Nos. 35, 39, 42 & 45) Two of these four motions are identical. (Doc Nos. 39 & 42) Although

9

the third and fourth motions are not identical, they are duplicative in that they also attempt to

10

address plaintiff’s sole claim against defendant Carriger for deliberate indifference in connection

11

with plaintiff’s medical chrono for a lower tier housing assignment. Likewise, plaintiff has filed

12

two motions for summary judgment against defendant Dr. Abshire. (Doc. Nos. 34 & 43). Again,

13

these motions are not identical, but both attempt to address plaintiff’s sole claim against

14

defendant Dr. Abshire for deliberate indifference in connection with plaintiff’s seizure

15

medication. For reasons unclear to the court, plaintiff has filed similarly duplicative motions for

16

summary against all of the defendants. Plaintiff is advised that improper and superfluous filings

17

by the parties impede the progress of a civil action and the court’s handling of a case.4

18

Plaintiff’s various motions for summary judgment are also defective. They do not comply

19

with Rule 56 of the Federal Rules of Civil Procedure or Local Rule 260(a). Rule 56(c)(1)

20

requires a party to support his or her factual position by:

21

citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits

22
23
24
25
26
27
28

4

The court cautions plaintiff that it may impose restrictions on his filings if he does not exercise
appropriate restraint in the future. See De Long v. Jennessey, 912 F.2d 1144, 1147 (9th Cir.
1990) (“There is strong precedent establishing the inherent power of federal courts to regulate the
activities of abusive litigants by imposing carefully tailored restrictions under the appropriate
circumstances.”) (quoting Tripati v. Beaman, 878 F.2d 351, 352 (10th Cir. 1989)). Although
plaintiff is proceeding pro se, he is required to comply with the Federal Rules of Civil Procedure
and the Local Rules of Court. Plaintiff’s failure to obey court orders and the local and federal
rules and meet his responsibilities in prosecuting this action may justify dismissal of the action,
including dismissal with prejudice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262-63 (9th Cir.
1992).
6

1

or declarations, stipulations (including those made for purposes of
the motion only), admissions, interrogatory answers, or other
materials.

2
3

Fed. R. Civ. P. 56(c)(1).

4

Similarly, Local Rule 260(a) requires that a motion for summary judgment

5

be accompanied by a “Statement of Undisputed Facts” that shall
enumerate discretely each of the specific material facts relied upon
in support of the motion and cite the particular portions of any
pleading, affidavit, deposition, interrogatory answer, admission, or
other document relied upon to establish that fact.

6
7
8
9

L.R. 260(a).
In this case, plaintiff has often failed to cite to specific parts of the record or evidence

10

submitted in support of his purported statement of undisputed facts. In addition, in some

11

instances, plaintiff has failed to submit the necessary evidence in support of his motion for this

12

court’s review. For example, plaintiff notes in his motion for summary judgment against

13

defendants Jennings and Carriger that his motion is supported by “Exhibit (A) not attached so not

14

to burden this court with excessive paper work….” Plaintiff is advised that he is “responsible for

15

the filing all evidentiary documents he relies on in a motion for summary judgment.” See L.R.

16

260(a). Finally, although it appears that plaintiff wishes to use his Statement of Undisputed Facts

17

as an affidavit by signing it under penalty of perjury, plaintiff is advised that any affidavit he

18

submits in support of a motion for summary judgment must be separate from his statement of

19

undisputed facts and must also be based on “personal knowledge, set out facts that would be

20

admissible in evidence, and show that the affiant or declarant is competent to testify on the

21

matters stated.” Fed. R. Civ. P. 56(c)(4). Any such affidavit may not be based purely on his

22

belief. See Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995).

23

As noted above, the court will deny plaintiff’s various motions for summary judgment

24

without prejudice. If plaintiff elects to file a new motion for summary judgment, the court

25

instructs him to file one motion seeking entry of judgment in his favor against all of the

26

defendants. Any such renewed motion must lay out each separate statement of undisputed fact

27

and cite to corresponding evidence attached to the motion, which plaintiff believes demonstrates

28

the absence of a genuine issue of material fact. Plaintiff is advised that he will bear the burden of
7

1

proof at trial, so to prevail on a motion for summary judgment in his favor he must affirmatively

2

demonstrate that based upon the undisputed facts no reasonable trier of fact could find other than

3

for him. See Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007).

4
5

SCHEDULING ORDER
Given the numerous of motions for summary judgment plaintiff has filed, plaintiff’s filing

6

of an unauthorized amended complaint, and plaintiff’s inadequate responses to defendants’

7

discovery requests, defense counsel has filed a motion to stay briefing on plaintiff’s motions for

8

summary judgment. (Doc. No. 46) Defense counsel has also requested that the court modify the

9

discovery and scheduling order in this case because when defense counsel arrived at plaintiff’s

10

institution of incarceration to take plaintiff’s deposition, correctional staff informed him that

11

plaintiff had been transferred the prior day to another institution. Defense counsel requests

12

additional time to depose plaintiff. (Doc. No. 48)

13

In light of the court’s decision to deny plaintiff’s motions for summary judgment without

14

prejudice, the court will deny defendants’ motion to stay briefing on those motions as

15

unnecessary. However, good cause appearing, the court will grant defendants’ request to modify

16

the discovery and scheduling order in this case to allow the parties to complete discovery and file

17

any dispositive motions if appropriate.
PLAINTIFF’S MOTION FOR DEFAULT

18
19

Plaintiff has also filed a motion for entry of default against defendants due to their failure

20

to respond to his motions for summary judgment. (Doc. No. 55) Defendants have opposed the

21

motion. (Doc. No. 56)

22

As an initial matter, plaintiff is advised that the court may not grant summary judgment by

23

default even if a nonmoving party fails to respond to the motion. See Fed. R. Civ. P. 56 advisory

24

committee’s note (“summary judgment cannot be granted by default even if there is a complete

25

failure to respond to the motion”). Moreover, this is not a case where defendants have sat idle.

26

Defense counsel initially sought more time to oppose plaintiff’s motions for summary judgment,

27

which this court granted. However, as plaintiff continued to file additional, often repetitive,

28

motions for summary judgment as well as an unauthorized amended complaint, defendants filed
8

1

their motion stay the briefing on plaintiff’s motions until the court had an opportunity to review

2

them and, if necessary, screen plaintiff’s amended complaint. Under these circumstances,

3

defendants have not “failed to plead or otherwise defend.” Fed. R. Civ. P. 55(a).

4

Accordingly, the court will deny plaintiff’s motion for entry of default.

5

CONCLUSION

6

Accordingly, IT IS HEREBY ORDERED that:

7

1. Plaintiff’s proposed third amended complaint (Doc. No. 38) is disregarded;

8

2. Plaintiff’s motion for sanctions (Doc. No. 44) is denied;

9

3. Defendants’ motion to compel (Doc. No. 47) is granted. Within forty-five days of the

10

date of service of this order, plaintiff shall serve on defense counsel further responses to

11

defendants’ special set of interrogatories and defendants’ requests for production;

12

4. Defendants’ request for monetary sanctions (Doc. No. 47) is denied without prejudice;

13

5. Plaintiff’s motions for summary judgment (Doc. Nos. 34, 35, 39, 42, 43, 45) are denied

14

without prejudice to plaintiff’s filing of, if appropriate, one motion for summary judgment as to

15

all defendants;

16
17

6. Defendants’ motion to stay briefing on plaintiff’s motions for summary judgment
(Doc. Nos. 46) is denied as unnecessary;

18

7. Defendants’ motions to modify the court’s discovery and scheduling order (Doc. Nos.

19

48 & 57) are granted. Within sixty days of the date of this order, defendants shall take plaintiff’s

20

deposition, if any. Within 120 days of this order, the parties shall file any motion for summary

21

judgment they wish to pursue. Except as provided in this order, the court’s discovery and

22

scheduling order remains in effect; and

23
24

8. Plaintiff’s motion for default (Doc. No. 55) is denied.
Dated: February 17, 2015

25
26
27

DAD:9
moor1386.mots

28
9