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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DESHONE SMITH, 12 Plaintiff, 13 14 No. 2:15-cv-0979 GEB DB P v. ORDER SERGENT, 15 Defendant. 16 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights 17 18 action under 42 U.S.C. § 1983. Plaintiff alleges excessive use of force in violation of the Eighth 19 Amendment by defendant Sergent at Mule Creek State Prison (“MCSP”). Before the court are 20 defendant’s motions to compel and for an extension of time to file a pretrial motion and plaintiff’s 21 motion for an extension of time to conduct discovery. For the reasons set forth below, 22 defendant’s motion to compel will be denied, defendant’s motion for an extension of the deadline 23 for filing pretrial motions will be granted, and plaintiff’s motion for an extension of the discovery 24 cut-off will be denied as unnecessary. 25 BACKGROUND 26 Plaintiff filed this action on May 6, 2015. (ECF No. 1.) He alleges that on April 24, 27 2015, defendant injured his wrists with handcuffs. On screening, the court found plaintiff 28 //// 1 1 appeared to state a cognizable claim for relief against defendant Sergent for excessive use of force 2 in violation of the Eighth Amendment. (ECF No. 12.) 3 On March 16, 2017, the court granted defendant’s first motion to compel responses to 4 discovery. (ECF No. 36.) The court ordered plaintiff to respond to defendant’s Request for 5 Production of Documents, Set One, and Interrogatories, Set One. Also at that time, the court 6 granted plaintiff’s request for extensions of the deadlines for discovery and pretrial motions. The 7 March 16 order set a deadline of April 10, 2017 for discovery and of June 5, 2017 for pretrial 8 motions. 9 10 MOTION TO COMPEL On April 7, defendant filed the current motion to compel. (ECF No. 37.) Defendant again 11 seeks to compel responses to both sets of discovery. However, in a declaration of defendant’s 12 counsel filed here on April 24, defendant informed the court that plaintiff had submitted 13 interrogatory responses and defendant withdrew her motion to compel those responses. 14 Defendant’s counsel stated that plaintiff’s responses to the Request for Production of Documents 15 are still deficient and she maintains the motion to compel on that basis. 16 The legal standards for considering a motion to compel are set out in the court’s March 16 17 order. Generally, Rule 34 provides the standards for responding to a request for production of 18 documents. It requires that for every item or category of items requested, the response must state 19 that inspection will be permitted or that copies will be provided. Fed. R. Civ. P. 34(b)(2)(B). A 20 party seeking discovery may move to compel when a party-opponent fails to respond that 21 inspection will be permitted, fails to permit inspection, or fails to provide copies as requested 22 under Rule 34. Fed. R. Civ. P. 37(a)(3)(B)(iii)-(iv). For purposes of a motion to compel, “an 23 evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, 24 answer, or respond.” Fed. R. Civ. P. 37(a)(4). 25 Defendant complains that plaintiff’s response to the Request for Production of Documents 26 simply attaches documents and does not identify which documents are responsive to which 27 requests. Defendant’s counsel determined that plaintiff provided documents that were responsive 28 to the requests for 602 appeals and for medical records (request nos. 3 and 6), but plaintiff failed 2 1 to submit any documents, or explain that no documents are available, in response to request nos. 2 1, 2, 4, 5, and 7. Those requests seek the following regarding the event on April 24, 2015: (1) 3 photographs or other documents depicting the location, objects, or persons (request no. 1); (2) all 4 written or recorded statements (request no. 2); (3) communications between plaintiff and MCSP 5 employees (request no. 4); (4) communications between plaintiff and any inmates (request no. 5); 6 and (5) documents supporting plaintiff’s contention that defendant used excessive force (request 7 no. 7). (ECF No. 39 at 6-8.) The copies of documents plaintiff submitted to defendant are: (1) a 8 statement by plaintiff that was attached to the complaint; (2) a CDCR 602 appeal and a CDCR 22 9 request; (3) a “Medical Report of Injury;” and (4) plaintiff’s form complaint with some 10 attachments. (Id. at 10-26.) A handwritten note on plaintiff’s response to the Request for 11 Production states “This is all the documents that’s the subject of this litigation.” (Id. at 5.) 12 Plaintiff filed a document on May 11, 2017 captioned “Plaintiff Notice to Inform the 13 Court of these Missing Documents that the Defendants is Requesting for within this Motion.” 14 (ECF No. 40 at 2.) Despite its caption, plaintiff’s filing appears to focus solely on descriptions of 15 the April 24, 2015 incident and on plaintiff’s attempts to obtain statements from correctional 16 officers who were witnesses to this incident. Plaintiff appears to seek these statements to support 17 a pretrial motion he intends to make. Plaintiff also appears to be seeking an extension of the 18 discovery cut-off in order to obtain these officer statements. Plaintiff attaches copies of some 19 documents to this May 11 filing – they include most of the documents he submitted to defendant 20 and a copy of the transcript of plaintiff’s deposition in this case. 21 While plaintiff did not follow the Rules of Civil Procedure and the instructions provided 22 by stating a response to each request for production of documents, plaintiff did provide what he 23 describes as “all the documents” that are, presumably, in his possession or control and plaintiff 24 considers to be relevant to this case. Because the documents provided by plaintiff are not 25 lengthy, defendant’s counsel can certainly determine, as she has done, that plaintiff had no 26 documents responsive to most of the production requests. Under the circumstances of this case, 27 the court finds plaintiff’s response adequate and will construe it as plaintiff’s statement that he 28 has no documents responsive to request numbers 1, 2, 4, 5, and 7. Plaintiff is warned that if he 3 1 has possession or control of documents that are responsive to defendant’s requests and fails to 2 provide them to defendant, he may be prevented from later using those documents in support of 3 his case. See Fed. R. Civ. P. 37. Therefore, if plaintiff does not agree with the court’s 4 construction of his response to the document production request, he may file a request for 5 reconsideration of this order within ten days. For these reasons, defendant’s motion to compel 6 will be denied. 7 MOTIONS FOR EXTENSIONS OF TIME As described above, in his “notice” filed May 11, plaintiff appears to seek an extension of 8 9 the discovery cut-off to obtain statements from witnesses. Plaintiff is advised that collecting 10 evidence in support of his claims is not necessarily “discovery” if he is not using the discovery 11 rules to obtain the information. Therefore, even though the discovery cut-off has passed, plaintiff 12 may continue to seek to obtain these witness statements by written requests, as he appears to have 13 done. If plaintiff runs into obstacles obtaining these statements, he may ask the court for 14 assistance. Accordingly, to the extent plaintiff is seeking an extension of the discovery cut-off, 15 that request is denied as unnecessary. 16 Defendant seeks a ten-day extension of time to file pretrial motions. The current deadline 17 for filing pretrial motions is June 5. Good cause appearing, the court will grant both parties an 18 extension. Any pretrial motions, besides motions to compel discovery, shall be filed on or before 19 June 15, 2017. 20 For the foregoing reasons, and good cause appearing, IT IS HEREBY ORDERED that: 21 1. 22 2. The court construes plaintiff’s response to request numbers 1, 2, 4, 5, and 7 of the 23 Request for Production of Documents as a statement that he has no responsive 24 documents. If plaintiff disagrees with this assumption, he may file a motion for 25 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. 26 27 //// 28 //// 4 1 2 3 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 4 5 6 7 8 9 10 11 12 13 14 15 16 DLB:9 DLB1/prisoner-civil rights/smit0979.mtc2 17 18 19 20 21 22 23 24 25 26 27 28 5

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