Cervantes v. Williamson, et al.
Filing
62
ORDER signed by Magistrate Judge Deborah Barnes on 6/26/2017 DENYING without prejudice 40 Motion to Compel. (Henshaw, R)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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RAUL CERVANTES,
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Plaintiff,
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No. 2:15-cv-02138 DB
v.
ORDER
SERGEANT WILLIAMSON, et al.,
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Defendants.
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Plaintiff, a state prisoner proceeding pro se, filed this civil rights action seeking relief
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under 42 U.S.C. § 1983 alleging excessive force against correctional officers for taking him to the
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ground during an escort. Before the court is plaintiff’s motion to compel discovery. (ECF No.
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40.) Defendant Burciaga opposes the motion. (ECF No. 43.) For the following reasons,
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plaintiff’s motion to compel is denied without prejudice.
Plaintiff moves the court for an order pursuant to Federal Rule of Civil Procedure 37
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compelling defendant Burciaga to produce the form 602 inmate appeal concerning the excessive
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force allegation. (Id. at 1.) Plaintiff additionally seeks monetary damages for defendant
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Burciaga’s purported failure to produce the requested discovery. (Id.) Plaintiff’s motion includes
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two pages that appear to be part of a separate and unrelated filing. (Id. at 2-3.) These two pages
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describe aspects of plaintiff’s substantive claims, as well as the legal standards on which those
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claims are based. (Id.) Aside from the motion to compel on the first page of the filing, plaintiff
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does not make any further requests on this court.
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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 defendant Burciaga, nor does it identify by name which request for
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production included a demand for the document at issue. Additionally, defendant Burciaga
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asserts that plaintiff never made a formal discovery request for the document at issue, nor did
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plaintiff confer with defendant Burciaga before moving to compel production. (ECF No. 43.)
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Plaintiff did not file a reply memorandum addressing defendant Burciaga’s assertion that he was
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never served with a request.
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The court cannot compel defendant Burciaga to produce a document that was never
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actually demanded in a discovery request. The Federal Rules of Civil Procedure and the Local
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Rules require the moving party in a discovery dispute to file the relevant discovery request and
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the proof of service to avoid any uncertainty as to whether the request was ever actually made.
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Plaintiff has failed to comply with these rules and his motion must be denied without prejudice.
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If plaintiff formally requests discovery from defendant and defendant objects to the request or
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fails to respond, then plaintiff may refile a motion to compel that complies with the Federal Rules
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of Civil Procedure and the Local Rules.
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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion to compel (ECF No. 40)
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is denied without prejudice.
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Dated: June 26, 2017
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TIM-DLB:10
DB / ORDERS / ORDERS.PRISONER.CIVIL RIGHTS / cerv.2138.mtc
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