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)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JESSE WASHINGTON,

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No. 2:14-cv-00628 TLN DB

Plaintiff,
v.
A. GUSTAFSON, et al.,

ORDER

Defendants.

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

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action under 42 U.S.C. § 1983 alleging deliberate indifference to his medical needs, excessive

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force, and retaliation in violation of his First and Eighth Amendment rights.

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After the close of discovery, plaintiff filed a discovery motion seeking to compel

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defendants to produce a “CDCR-7344 Form-Advance Transfer Notice” from December 11, 2012

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(“Transfer Notice”), which plaintiff believes will contain the names of possible witnesses to the

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alleged incidents. (ECF No. 26.) Defendants oppose the motion on its merits and also assert that

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it is untimely. (ECF Nos. 27; 28.)

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The court initially issued a discovery and scheduling order herein, which established

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deadlines of (i) December 18, 2015, for conducting discovery, including the filing of any motions

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to compel, and (ii) February 26, 2016, for the filing of pretrial motions, except motions to compel

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discovery. (ECF No. 16.) The scheduling order specifically warned the parties that “[a]ny
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motions necessary to compel discovery shall be filed by that date.” (Id. at 2.) On December 17,

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2015, defendants moved for a three week extension of the discovery deadline based upon

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plaintiff’s request for additional time to respond to written discovery. (ECF No. 20 at 2.) The

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court granted that motion, extending the discovery deadline to January 8, 2016, and, again,

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warned the parties that ““[a]ny motions necessary to compel discovery shall be filed by that

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date.” (ECF No. 21.) Plaintiff filed his motion to compel on February 1, 2016. (ECF No. 26.)

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First, plaintiff’s motion is untimely and must be denied on that ground.

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Second, even if the court were to consider the merits of plaintiff’s motion to compel, it

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also fails.

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When permitted, a party may serve requests for production of documents on any other

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party. Fed. R. Civ. P. 34(a). The discovering party may then move to compel if a responding

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party fails to produce documents or fails to respond to the inspection request. Fed. R. Civ. P.

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37(a)(3)(B)(iii). And where the request for production is at issue, the party moving to compel

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must file the portion of the request at issue and its proof of service. Local Rule 250.3(c).

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Additionally, when a party objects to the discovery request, the party moving to compel bears the

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burden of demonstrating why the objections are not justified. Grigsby v. Munguia, No. 2:14-cv-

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0789, 2015 WL 3442344, at *1 (E.D. Cal. May 28, 2015) (citing Grabek v. Dickinson, No. 2:10-

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cv-2892, 2012 WL 113799, at *1 (E.D. Cal. Jan. 13, 2012); Womack v. Virga, No. 2:11-cv-1030,

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2011 WL 6703958, at *3 (E.D. Cal. Dec. 21, 2011)). To meet that burden, the moving party must

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“inform the Court which discovery requests are the subject of the motion to compel, and for each

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disputed response, why the information sought is relevant and why the responding party’s

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objections are not meritorious.” Grigsby, 2015 WL 3442344, at *1.

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Plaintiff’s motion to compel does not include the pertinent discovery requests that he

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claims to have made to defendants, nor does it identify by name which request for production

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included a demand for the document at issue. Additionally, defendants’ review of all discovery

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requests and their responses did not find any demand that they turn over the Transfer Form. (ECF

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Nos. 27 at 3; 27-1 at 2.) In his reply memorandum, plaintiff claims that opaque references to

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three potential witnesses in his discovery requests (requests for admission and interrogatories that
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were propounded upon defendants) put defendants on notice about his desire for this document.

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(ECF No. 32.) This is not sufficient. The court cannot, after the close of discovery, compel

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defendants to produce a document that was never actually demanded in a discovery request.

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Because plaintiff’s motion is both defective and untimely, it must be denied.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion to compel (ECF No. 26)

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is denied.

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Dated: February 14, 2017

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TIM-DLB:10
DB / ORDERS / ORDERS.PRISONER.CIVIL RIGHTS / wash.0628.mtc

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