Smith v. Sergent

Filing 42

ORDER signed by Magistrate Judge Deborah Barnes on 6/7/2017 ORDERING defendant's 37 motion to compel is DENIED. The court construes plaintiff's response to request numbers 1, 2, 4, 5, and 7 of the Request for Production of Documents a s a statement that he has no responsive documents. If plaintiff disagrees with this assumption, he may file a motion for reconsideration within 10 days of the date of this order. Plaintiff's request for an extension of the discovery cut-off is DENIED as unnecessary. Defendant's 41 motion for extension is GRANTED. Both parties shall file any pretrial motions by 6/15/2017. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DESHONE SMITH,

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Plaintiff,

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No. 2:15-cv-0979 GEB DB P

v.

ORDER

SERGENT,

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Defendant.

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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. Plaintiff alleges excessive use of force in violation of the Eighth

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Amendment by defendant Sergent at Mule Creek State Prison (“MCSP”). Before the court are

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defendant’s motions to compel and for an extension of time to file a pretrial motion and plaintiff’s

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motion for an extension of time to conduct discovery. For the reasons set forth below,

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defendant’s motion to compel will be denied, defendant’s motion for an extension of the deadline

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for filing pretrial motions will be granted, and plaintiff’s motion for an extension of the discovery

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cut-off will be denied as unnecessary.

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BACKGROUND

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Plaintiff filed this action on May 6, 2015. (ECF No. 1.) He alleges that on April 24,

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2015, defendant injured his wrists with handcuffs. On screening, the court found plaintiff

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appeared to state a cognizable claim for relief against defendant Sergent for excessive use of force

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in violation of the Eighth Amendment. (ECF No. 12.)

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On March 16, 2017, the court granted defendant’s first motion to compel responses to

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discovery. (ECF No. 36.) The court ordered plaintiff to respond to defendant’s Request for

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Production of Documents, Set One, and Interrogatories, Set One. Also at that time, the court

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granted plaintiff’s request for extensions of the deadlines for discovery and pretrial motions. The

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March 16 order set a deadline of April 10, 2017 for discovery and of June 5, 2017 for pretrial

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motions.

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MOTION TO COMPEL
On April 7, defendant filed the current motion to compel. (ECF No. 37.) Defendant again

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seeks to compel responses to both sets of discovery. However, in a declaration of defendant’s

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counsel filed here on April 24, defendant informed the court that plaintiff had submitted

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interrogatory responses and defendant withdrew her motion to compel those responses.

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Defendant’s counsel stated that plaintiff’s responses to the Request for Production of Documents

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are still deficient and she maintains the motion to compel on that basis.

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The legal standards for considering a motion to compel are set out in the court’s March 16

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order. Generally, Rule 34 provides the standards for responding to a request for production of

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documents. It requires that for every item or category of items requested, the response must state

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that inspection will be permitted or that copies will be provided. Fed. R. Civ. P. 34(b)(2)(B). A

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party seeking discovery may move to compel when a party-opponent fails to respond that

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inspection will be permitted, fails to permit inspection, or fails to provide copies as requested

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under Rule 34. Fed. R. Civ. P. 37(a)(3)(B)(iii)-(iv). For purposes of a motion to compel, “an

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evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose,

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answer, or respond.” Fed. R. Civ. P. 37(a)(4).

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Defendant complains that plaintiff’s response to the Request for Production of Documents

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simply attaches documents and does not identify which documents are responsive to which

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requests. Defendant’s counsel determined that plaintiff provided documents that were responsive

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to the requests for 602 appeals and for medical records (request nos. 3 and 6), but plaintiff failed
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to submit any documents, or explain that no documents are available, in response to request nos.

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1, 2, 4, 5, and 7. Those requests seek the following regarding the event on April 24, 2015: (1)

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photographs or other documents depicting the location, objects, or persons (request no. 1); (2) all

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written or recorded statements (request no. 2); (3) communications between plaintiff and MCSP

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employees (request no. 4); (4) communications between plaintiff and any inmates (request no. 5);

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and (5) documents supporting plaintiff’s contention that defendant used excessive force (request

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no. 7). (ECF No. 39 at 6-8.) The copies of documents plaintiff submitted to defendant are: (1) a

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statement by plaintiff that was attached to the complaint; (2) a CDCR 602 appeal and a CDCR 22

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request; (3) a “Medical Report of Injury;” and (4) plaintiff’s form complaint with some

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attachments. (Id. at 10-26.) A handwritten note on plaintiff’s response to the Request for

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Production states “This is all the documents that’s the subject of this litigation.” (Id. at 5.)

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Plaintiff filed a document on May 11, 2017 captioned “Plaintiff Notice to Inform the

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Court of these Missing Documents that the Defendants is Requesting for within this Motion.”

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(ECF No. 40 at 2.) Despite its caption, plaintiff’s filing appears to focus solely on descriptions of

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the April 24, 2015 incident and on plaintiff’s attempts to obtain statements from correctional

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officers who were witnesses to this incident. Plaintiff appears to seek these statements to support

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a pretrial motion he intends to make. Plaintiff also appears to be seeking an extension of the

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discovery cut-off in order to obtain these officer statements. Plaintiff attaches copies of some

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documents to this May 11 filing – they include most of the documents he submitted to defendant

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and a copy of the transcript of plaintiff’s deposition in this case.

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While plaintiff did not follow the Rules of Civil Procedure and the instructions provided

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by stating a response to each request for production of documents, plaintiff did provide what he

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describes as “all the documents” that are, presumably, in his possession or control and plaintiff

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considers to be relevant to this case. Because the documents provided by plaintiff are not

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lengthy, defendant’s counsel can certainly determine, as she has done, that plaintiff had no

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documents responsive to most of the production requests. Under the circumstances of this case,

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the court finds plaintiff’s response adequate and will construe it as plaintiff’s statement that he

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has no documents responsive to request numbers 1, 2, 4, 5, and 7. Plaintiff is warned that if he
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has possession or control of documents that are responsive to defendant’s requests and fails to

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provide them to defendant, he may be prevented from later using those documents in support of

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his case. See Fed. R. Civ. P. 37. Therefore, if plaintiff does not agree with the court’s

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construction of his response to the document production request, he may file a request for

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reconsideration of this order within ten days. For these reasons, defendant’s motion to compel

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will be denied.

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MOTIONS FOR EXTENSIONS OF TIME
As described above, in his “notice” filed May 11, plaintiff appears to seek an extension of

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the discovery cut-off to obtain statements from witnesses. Plaintiff is advised that collecting

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evidence in support of his claims is not necessarily “discovery” if he is not using the discovery

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rules to obtain the information. Therefore, even though the discovery cut-off has passed, plaintiff

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may continue to seek to obtain these witness statements by written requests, as he appears to have

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done. If plaintiff runs into obstacles obtaining these statements, he may ask the court for

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assistance. Accordingly, to the extent plaintiff is seeking an extension of the discovery cut-off,

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that request is denied as unnecessary.

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Defendant seeks a ten-day extension of time to file pretrial motions. The current deadline

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for filing pretrial motions is June 5. Good cause appearing, the court will grant both parties an

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extension. Any pretrial motions, besides motions to compel discovery, shall be filed on or before

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June 15, 2017.

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For the foregoing reasons, and good cause appearing, IT IS HEREBY ORDERED that:

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2. The court construes plaintiff’s response to request numbers 1, 2, 4, 5, and 7 of the

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Request for Production of Documents as a statement that he has no responsive

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documents. If plaintiff disagrees with this assumption, he may file a motion for

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reconsideration within ten days of the date of this order.

Defendant’s motion to compel (ECF No. 37) is denied.

3. Plaintiff’s request for an extension of the discovery cut-off is denied as unnecessary.

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4. Defendant’s motion for an extension of the pretrial motion deadline (ECF No. 41) is
granted. Both parties shall file any pretrial motions by June 15, 2017.
Dated: June 7, 2017

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DLB:9
DLB1/prisoner-civil rights/smit0979.mtc2

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