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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