Bartholomew v. Solorzano

Filing 27

ORDER signed by Magistrate Judge Dale A. Drozd on 8/11/15 ORDERING that Defendant's motion to compel discovery responses (ECF No. 23 ) is granted. Within 21 days of service of this order, plaintiff shall serve defendant with responses to de fendants interrogatories, set one, nos. 1 and 2. Plaintiff must respond to the interrogatories completely and without objection. Within 21 days of service of this order, plaintiff shall serve defendant with a copy of the document referenced in his responses to defendants requests for production, set one, nos. 4 and 5. Plaintiff may not interpose an objection to the provision of the referenced document. The August 29, 2014 discovery and scheduling order is hereby amended as follows: All pre trial motions, except motions to compel discovery, shall be filed on or before November 30, 2015. Discovery in this case is closed, except that defendant may bring a further motion to compel discovery responses and/or motion for discovery sanctions if plaintiff fails to respond properly to this order.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KEVIN BARTHOLOMEW,

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Plaintiff,

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No. 2:13-cv-1500 GEB DAD P

v.

ORDER

A.V. SOLORZANO,

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Defendant.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights

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action filed pursuant to 42 U.S.C. § 1983. In his complaint, plaintiff contends that defendant

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Solarzano, a correctional officer at California State Prison-Sacramento (“CSP-SAC”), sexually

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harassed plaintiff and then retaliated when plaintiff reported the harassment to prison officials.

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Now pending before the court is defendant’s motion to compel responses to interrogatories and

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requests for production of documents. (ECF No. 23.) By notice filed March 19, 2015, defendant

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partially withdrew the motion to compel. (ECF No. 26.) Plaintiff filed neither an opposition nor

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a statement of non-opposition to defendant’s motion to compel.

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I. Interrogatories

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Defendant moves to compel responses to his interrogatories, set one, nos. 1 and 2.

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According to defendant, plaintiff has failed to respond to either interrogatory. (ECF No. 26 at 2.)

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Under the Federal Rules of Civil Procedure, a responding party is obligated to respond to

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interrogatories fully. Fed. R. Civ. P. 33(b)(3). Any objections must be stated with specificity.

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Fed. R. Civ. P. 33(b)(4). “The responding party shall use common sense and reason in its

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responses; hyper-technical, quibbling, or evasive objections will not be viewed favorably by the

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court.” Johnson v. Cate, No. 1:10-cv-02348-LJO-MJS, 2014 WL 1419816 at * 2 (E.D. Cal. Apr.

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14, 2014). A responding party is not generally required to conduct extensive research in order to

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answer an interrogatory, but must make a reasonable effort to respond. L.H. v. Schwarzenegger,

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No. 2:06-cv-2042-LKK-GGH, 2007 WL 2781132 at *2 (E.D. Cal. Sep. 21, 2007). “Moreover, if

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the responding party would necessarily have to gather the requested information to prepare its

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own case, objections that it is too difficult to obtain the information for the requesting party are

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not honored.” Id. Finally, the responding party has a duty to supplement any responses if the

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information sought is later obtained or the response provided needs correction. Fed. R. Civ. P.

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26(e)(1)(A).
Defendant’s interrogatory no. 1 provides: “Please describe in detail how Defendant

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sexually harassed you on September 1, 2011.” (ECF No. 26-2 at 3.)
Defendant’s interrogatory no. 2 provides: “Identify all witnesses, both staff and inmate (if

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inmate, include CDCR number), who observed Defendant sexually harass you on September 1,

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2011.” (Id.)

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As noted, plaintiff has not responded to either interrogatory. An interrogatory may seek

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“any nonprivileged matter that is relevant to any party’s claim or defense – including . . . the

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identity and location of persons who know of any discoverable matter.” Fed. R. Civ. P. 26(b)(1).

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Through these two interrogatories defendant seeks details regarding defendant’s alleged sexual

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harassment of plaintiff and the identities of witnesses to the alleged harassment. The first

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interrogatory could not be more material to plaintiff’s claims; the second interrogatory seeks “the

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identity . . . of persons who know of any discoverable matter.” The information sought should be

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known by plaintiff without the need for any additional research. Accordingly, the court will grant

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defendant’s motion to compel responses to these two interrogatories.

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II. Requests for Production of Documents
Defendant moves to compel responses to his requests for production, set one, nos. 4 and 5.

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According to defendant, plaintiff referenced a document in his responses to these requests, yet

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failed to include a copy of the document with his responses. (ECF No. 26 at 2.)

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A party may serve on any other party a request “to produce and permit the requesting

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party or its representative to inspect, copy, test, or sample items in the responding party's

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possession, custody or control.” Fed. R. Civ. P. 34(a)(1). “Control is defined as the legal right to

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obtain documents upon demand. The party seeking production of the documents . . . bears the

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burden of proving that the opposing party has such control.” United States v. Int’l Union of

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Petroleum & Indus. Workers, 870 F.2d 1450, 1452 (9th Cir. 1989).
Defendant’s request for production no. 4 provides: “Produce the document you submitted

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on September 9, 2011, identified in your complaint as ‘REQUEST/BED/BUILDING MOVE

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LEVEL III FORM.’” (ECF No. 26-1 at 6.)

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Plaintiff’s response to request for production no. 4 provides: “(see attached PL exhibit-B

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‘REQUEST FOR BED/BUILDING MOVE LEVEL III DATE: 9-11-11 signed by Officer

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B. Burns 2/watch Building 8).” (Id.)

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Defendant’s request for production no. 5 provides: “In your complaint, you allege that

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you required a ‘compatibility Bed/move,’ which required written approval of both the second and

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third watch officers, then you state ‘(see attached Exhibit #2)’, however no exhibit is attached.

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Produced the document(s) you identified as ‘Exhibit #2.’” (Id.)

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Plaintiff’s response to request for production no. 5 provides: “(see number 4: Request for
documents)” (Id.)
According to defendant, despite the answers reproduced above, plaintiff failed to enclose

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the referenced document with his discovery responses. (ECF No. 26 at 2.) The document sought

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is presumably in plaintiff’s possession, as it is referred to in his operative complaint. Moreover,

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plaintiff claims the document was attached to his discovery responses. In light of these facts,

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defendant appears entitled to a copy of the document, and plaintiff will be compelled to provide it

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to defendant.
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III. Conclusion

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

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1. Defendant’s motion to compel discovery responses (ECF No. 23) is granted.

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2. Within twenty-one days of service of this order, plaintiff shall serve defendant with

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responses to defendant’s interrogatories, set one, nos. 1 and 2. Plaintiff must respond to the

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interrogatories completely and without objection.

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3. Within twenty-one days of service of this order, plaintiff shall serve defendant with a

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copy of the document referenced in his responses to defendant’s requests for production, set one,

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nos. 4 and 5. Plaintiff may not interpose an objection to the provision of the referenced

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document.

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4. The August 29, 2014 discovery and scheduling order is hereby amended as follows:

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All pretrial motions, except motions to compel discovery, shall be filed on or before November

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30, 2015. Discovery in this case is closed, except that defendant may bring a further motion to

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compel discovery responses and/or motion for discovery sanctions if plaintiff fails to respond

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properly to this order.

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Dated: August 11, 2015

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DAD:10
bart1500.disc

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