Washington v. Gustafson, et al.
Filing
50
ORDER denying 26 Motion to Compel signed by Magistrate Judge Deborah Barnes on 02/14/17. (Plummer, M)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
JESSE WASHINGTON,
12
13
14
15
No. 2:14-cv-00628 TLN DB
Plaintiff,
v.
A. GUSTAFSON, et al.,
ORDER
Defendants.
16
17
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights
18
action under 42 U.S.C. § 1983 alleging deliberate indifference to his medical needs, excessive
19
force, and retaliation in violation of his First and Eighth Amendment rights.
20
After the close of discovery, plaintiff filed a discovery motion seeking to compel
21
defendants to produce a “CDCR-7344 Form-Advance Transfer Notice” from December 11, 2012
22
(“Transfer Notice”), which plaintiff believes will contain the names of possible witnesses to the
23
alleged incidents. (ECF No. 26.) Defendants oppose the motion on its merits and also assert that
24
it is untimely. (ECF Nos. 27; 28.)
25
The court initially issued a discovery and scheduling order herein, which established
26
deadlines of (i) December 18, 2015, for conducting discovery, including the filing of any motions
27
to compel, and (ii) February 26, 2016, for the filing of pretrial motions, except motions to compel
28
discovery. (ECF No. 16.) The scheduling order specifically warned the parties that “[a]ny
1
1
motions necessary to compel discovery shall be filed by that date.” (Id. at 2.) On December 17,
2
2015, defendants moved for a three week extension of the discovery deadline based upon
3
plaintiff’s request for additional time to respond to written discovery. (ECF No. 20 at 2.) The
4
court granted that motion, extending the discovery deadline to January 8, 2016, and, again,
5
warned the parties that ““[a]ny motions necessary to compel discovery shall be filed by that
6
date.” (ECF No. 21.) Plaintiff filed his motion to compel on February 1, 2016. (ECF No. 26.)
7
First, plaintiff’s motion is untimely and must be denied on that ground.
8
Second, even if the court were to consider the merits of plaintiff’s motion to compel, it
9
also fails.
10
When permitted, a party may serve requests for production of documents on any other
11
party. Fed. R. Civ. P. 34(a). The discovering party may then move to compel if a responding
12
party fails to produce documents or fails to respond to the inspection request. Fed. R. Civ. P.
13
37(a)(3)(B)(iii). And where the request for production is at issue, the party moving to compel
14
must file the portion of the request at issue and its proof of service. Local Rule 250.3(c).
15
Additionally, when a party objects to the discovery request, the party moving to compel bears the
16
burden of demonstrating why the objections are not justified. Grigsby v. Munguia, No. 2:14-cv-
17
0789, 2015 WL 3442344, at *1 (E.D. Cal. May 28, 2015) (citing Grabek v. Dickinson, No. 2:10-
18
cv-2892, 2012 WL 113799, at *1 (E.D. Cal. Jan. 13, 2012); Womack v. Virga, No. 2:11-cv-1030,
19
2011 WL 6703958, at *3 (E.D. Cal. Dec. 21, 2011)). To meet that burden, the moving party must
20
“inform the Court which discovery requests are the subject of the motion to compel, and for each
21
disputed response, why the information sought is relevant and why the responding party’s
22
objections are not meritorious.” Grigsby, 2015 WL 3442344, at *1.
23
Plaintiff’s motion to compel does not include the pertinent discovery requests that he
24
claims to have made to defendants, nor does it identify by name which request for production
25
included a demand for the document at issue. Additionally, defendants’ review of all discovery
26
requests and their responses did not find any demand that they turn over the Transfer Form. (ECF
27
Nos. 27 at 3; 27-1 at 2.) In his reply memorandum, plaintiff claims that opaque references to
28
three potential witnesses in his discovery requests (requests for admission and interrogatories that
2
1
were propounded upon defendants) put defendants on notice about his desire for this document.
2
(ECF No. 32.) This is not sufficient. The court cannot, after the close of discovery, compel
3
defendants to produce a document that was never actually demanded in a discovery request.
4
Because plaintiff’s motion is both defective and untimely, it must be denied.
5
Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion to compel (ECF No. 26)
6
is denied.
7
Dated: February 14, 2017
8
9
10
11
12
13
14
15
TIM-DLB:10
DB / ORDERS / ORDERS.PRISONER.CIVIL RIGHTS / wash.0628.mtc
16
17
18
19
20
21
22
23
24
25
26
27
28
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?