Harris v. Macomber et al

Filing 128

ORDER signed by Magistrate Judge Deborah Barnes on 4/4/2022 DENYING plaintiff's 117 motion to compel as untimely. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GRADY HARRIS,

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Plaintiff,

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No. 2:16-cv-0830 TLN DB P

v.

ORDER

JEFF MACOMBER, et al.,

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Defendants.

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Plaintiff is a state inmate proceeding pro se with an action pursuant to 42 U.S.C. § 1983.

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Plaintiff claims that defendants violated his Eighth and First Amendment rights. Presently before

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the court is plaintiff’s motion to compel. (ECF No. 117.) For the reasons set forth below, the

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court will deny the motion to compel as untimely.

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I.

Background

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This action was initially proceeding on plaintiff’s First Amended Complaint against

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defendant correctional officers Rose, Munoz, Fong, Williamson, Calderon, Thompson, Cervantes,

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Fuller, and Leavitt. On June 8, 2020, the District Judge assigned to this action granted in part and

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denied in part defendant Leavitt’s motion to dismiss. (ECF No. 86.) Plaintiff was given leave to

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file an amended complaint. After plaintiff filed the Second Amended Complaint (SAC), the court

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issued an amended discovery and scheduling order. (ECF No. 113.)

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The August 5, 2021, amended Discovery and Scheduling Order (“DSO”) stated that

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discovery was reopened only as to defendant Leavitt. (Id. at 5 ¶ 6.) The DSO further stated that

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the parties could conduct discovery as to defendant Leavitt until October 8, 2021, and any

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motions necessary to compel discovery shall be filed by that date.

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discovery requests were to be served thirty days prior to the October 8, 2021, discovery deadline.

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(Id.)
Plaintiff filed the instant motion to compel on January 28, 2022.1 (ECF No. 117.)

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The order specified that

Defendant Leavitt has filed an opposition. (ECF No. 124.)

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II.

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Plaintiff’s Motion
Plaintiff seeks an order compelling the defendants to answer interrogatories and produce

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documents. (ECF No. 117.) Plaintiff states he submitted interrogatories along with a set of

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requests for admission “around November 18, September 21, 2021, and January 19, 2022,” but

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the “answers were not efficient.” (Id. at 1.) Plaintiff has not indicated why he feels the responses

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should be supplemented.

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Plaintiff requests an order pursuant to Rule 37(a) compelling defendant J. Macomber and

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or California Department of Corrections and Rehabilitation to produce documents attached to the

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motion. Plaintiff states he submitted a request for these documents “on or around the same dates

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stated above,” but did not receive an answer. (Id. at 2.) He also seeks $5,000.00 as reasonable

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expenses in obtaining this order. Plaintiff has attached a copy of his requests as exhibits to the

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motion. (Id. at 4-18.)

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III.

Defendant Leavitt’s Opposition

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In the opposition, Leavitt argues the motion is untimely and the responses to plaintiff’s

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requests for admission were appropriate. (ECF No. 124 at 2.) In a declaration attached to the

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opposition, counsel for Leavitt states that he sent responses to plaintiff’s requests for admission,

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set one and requests for production, set one with mailing dates of September 18 and 26. (ECF No.

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Pursuant to the prison mailbox rule, a document is deemed served on the date a prisoner signs
the document and gives it to prison officials for mailing. See Houston v. Lack, 487 U.S. 266, 276
(1988).
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124-1 at 1.) Counsel further states he received correspondence from plaintiff dated December 6,

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2021, regarding responses to request for admission, set one and the lack of responses to

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interrogatories. (Id. at 1-2.) Counsel sent a letter to plaintiff addressing the dispute and

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informing plaintiff he did not receive the interrogatories referenced in plaintiff’s letter. (Id. at 10-

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11.)

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Thereafter, counsel received a set of interrogatories directed toward each of the individual

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defendants dated November 18, 2021. (Id. at 2.) Counsel received another set of interrogatories

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on January 24, 2022. (Id.) Counsel states these items were sent after the discovery cutoff set by

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the DSO.

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IV.

Legal Standards
Under Rule 26 of the Federal Rules of Civil Procedure, “[p]arties may obtain discovery

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regarding any non-privileged matter that is relevant to any party’s claim or defense and

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proportional to the needs of the case, considering the importance of the issues at stake in the

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action, the amount in controversy, the parties’ relative access to relevant information, the parties’

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resources, the importance of the discovery in resolving the issues, and whether the burden or

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expense of the proposed discovery outweighs its likely benefit. Information within the scope of

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discovery need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1).

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In response to a request for production of documents under Rule 34, a party is to produce

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all relevant documents in its “possession, custody, or control.” Fed. R. Civ. P. 34(a)(1). The

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purpose of discovery is to “remove surprise from trial preparation so the parties can obtain

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evidence necessary to evaluate and resolve their dispute.” United States v. Chapman Univ., 245

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F.R.D. 646, 648 (C.D. Cal. 2007) (quotation and citation omitted).
Under Rule 37 of the Federal Rules of Civil Procedure, “a party seeking discovery may

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move for an order compelling an answer, designation, production, or inspection.” Fed. R. Civ. P.

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37(a)(3)(B). The court may order a party to provide further responses to an “evasive or

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incomplete disclosure, answer, or response.” Fed. R. Civ. P. 37(a)(4). “District courts have

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‘broad discretion to manage discovery and to control the course of litigation under Federal Rule

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of Civil Procedure 16.’” Hunt v. County of Orange, 672 F.3d 606, 616 (9th Cir. 2012) (quoting

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Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828, 833 (9th Cir. 2011)).
“The party seeking to compel discovery has the burden of establishing that its request

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satisfies the relevancy requirement of Rule 26(b)(1). Thereafter, the party opposing discovery has

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the burden of showing that the discovery should be prohibited, and the burden of clarifying,

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explaining or supporting its objections.” Bryant v. Ochoa, No. 07cv200 JM (PCL), 2009 WL

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1390794, at *1 (S.D. Cal. May 14, 2009) (citations omitted). Specifically, the party moving to

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compel bears the burden of informing the court (1) which discovery requests are the subject of the

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motion to compel, (2) which of the responses are disputed, (3) why the party believes the

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response is deficient, (4) why any objections are not justified, and (5) why the information sought

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through discovery is relevant to the prosecution of this action. McCoy v. Ramirez, No. 1:13-cv-

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1808-MJS (PC), 2016 WL 3196738, at *1 (E.D. Cal. June 9, 2016); Ellis v. Cambra, No. 1:02

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V.

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Analysis
Plaintiff acknowledges that the disputed discovery requests were served on defendants

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after the deadline set forth in the DSO. He specifically states that he served requests on

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September 21, 2021, November 18, 2021, and January 19, 2022. (ECF No. 117 at 1.) The

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deadline for submitting requests was thirty days prior to October 8, 2021. (ECF No. 113 at 5.)

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Thus, defendants were not required to respond. See Choyce v. Radasa, No. 2:20-cv-0608 KJN P,

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2021 WL 2383029, at *2 (E.D. Cal. June 10, 2021) (“Because plaintiff’s discovery requests were

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untimely propounded, defendant was not required to respond . . . .”).
Additionally, plaintiff’s motion to compel was filed on January 28, 2022, nearly four

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months after the deadline for filing such motions. (ECF No. 117 at 2, 19.) Plaintiff has not

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provided any explanation for the delay and the docket does not indicate that plaintiff sought an

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extension of time to conduct discovery or file a motion to compel. Accordingly, plaintiff’s

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motion to compel will be denied as untimely. See Womack v. Windsor, No. 2:15-cv-0533 MCE

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KJN P, 2017 WL 1155083 at *2 (E.D. Cal. Mar. 27, 2017) (denying motion to compel because

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both the motion and underlying discovery requests were untimely).

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Federal Rule of Civil Procedure 16(b)(4) provides that, “[a] schedule may be modified

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only for good cause and with the judge’s consent.” Federal Rule of Civil Procedure 16’s “‘good

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cause’ standard primarily considers the diligence of the party seeking the amendment.” Johnson

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v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992).

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The court will not consider any motion to compel unless plaintiff can show good cause for

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the delay in requesting discovery and in filing the motion to compel. Thomas v. Kuo, No. 1:16-

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cv-0524 DAD EPG (PC), 2018 WL 4786923 at *3 (E.D. Cal. Oct. 3, 2018) (requiring plaintiff to

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show good cause for both reopening discovery and for filing an untimely motion to compel). Any

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renewed motion should explain the cause for the delay and show plaintiff acted diligently.

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VI.

Conclusion
For the reasons set forth above, IT IS HEREBY ORDERED that plaintiff’s motion to

compel (ECF No. 117) is denied as untimely.
Dated: April 4, 2022

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DB:12
DB/DB Prisoner Inbox/Civil Rights/S/harr0830.mtc

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