Harris v. Macomber et al

Filing 132

ORDER signed by Magistrate Judge Deborah Barnes on 6/30/2022 DENYING 130 Motion for Reconsideration. (Mena-Sanchez, L)

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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

ORDER

v.
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 for reconsideration. (ECF No. 130.) For the reasons set forth

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below, the court will deny the motion.

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I.

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

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

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

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

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

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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 were to be filed by that date. The order specified that

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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.)

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Plaintiff filed a motion to compel on January 28, 2022. 1 (ECF No. 117.) Defendant

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Leavitt opposed the motion. (ECF No. 124.) The undersigned denied plaintiff’s motion to

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compel as untimely. (ECF No. 128.) Thereafter, plaintiff filed the instant motion for

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reconsideration. (ECF No. 130.) Defendant Leavitt has filed an opposition to the motion. (ECF

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No. 131.) Because the order denying plaintiff’s motion to compel indicated that plaintiff could

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file a renewed motion and thereafter, plaintiff filed the instant motion seeking the same relief, the

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court will construe plaintiff’s motion as a renewed motion to compel in addition to construing it

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as a motion for reconsideration. However, as set forth below, the motion should be denied under

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both standards.

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II.

Plaintiff’s Motion

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Plaintiff seeks reconsideration of the undersigned’s denial of his motion to compel. (ECF

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No. 130.) In a declaration attached to the motion, plaintiff states that he gave discovery requests

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to prison officials for mailing on September 6, 2021. (ECF No. 130 at 45.) He received the

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copies on September 18, 2021. He sent copies to counsel for defendant Leavitt as well as counsel

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for the remaining defendants. He received copies of his second set of discovery requests on

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November 13, 2021. (Id. at 45-46.)

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He states he “resent the second copy of discovery documents” to defendants on November

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18, 2021. He received a response containing their objections. Plaintiff states he sent a letter on

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December 8, 2021, regarding their failure to sufficiently respond to plaintiff’s discovery requests.

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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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Counsel’s letter in response, attached as an exhibit to plaintiff’s motion, is dated December 21,

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2021. (ECF No. 130 at 22-23.) Plaintiff’s original motion to compel is dated January 28, 2022.

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(ECF No. 117 at 2.)

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Plaintiff has explained the delay in submitting discovery requests and moving to compel

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further responses to his requests by arguing that it takes time for prison officials to process his

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mail and the pandemic has made that even more difficult. (ECF No. 130 at 3-4.) He further

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argues that Leavitt should be compelled to respond to his discovery requests because the

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responses provided were insufficient and the evidence requested is important to prove his case.

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(Id. at 7-11.)

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III.

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Defendant Leavitt’s Opposition
Defendant argues that plaintiff has not shown any new facts to warrant reconsideration of

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the court’s prior ruling and he has failed to show good cause as instructed in the court’s prior

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order. (ECF No. 131.)

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IV.

Discussion
A. Motion to Modify Scheduling Order
1. Legal Standards
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 amendment.” Johnson v.

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

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2. Analysis
Plaintiff has failed to show good cause for the delay in seeking to compel further

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responses to his discovery requests, seeking additional time to conduct discovery, or filing a

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motion to compel. In support of his argument, he has alleged that sending and receiving mail

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while in the custody of the California Department of Corrections and Rehabilitation (“CDCR”)

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takes additional time and the pandemic has made things worse. However, plaintiff has stated that

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mail issues have been a problem throughout litigation of this action. (ECF No. 130 at 3.) The

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arguments put forth in his motion fail to show that he acted diligently in seeking to compel further
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responses from defendant Leavitt. The court is sympathetic to the difficulties inherent in

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litigating a claim while incarcerated. However, plaintiff has failed to explain why, in light of the

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delays in obtaining copies and mailing documents, he did not request an extension of time to

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submit discovery requests or file a motion to compel at any point before the deadline set forth in

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the discovery and scheduling order.

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The court’s prior order advised plaintiff that he must show good cause to warrant

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modification of the scheduling order to allow him to seek discovery. The order further stated that

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to determine whether a party had shown good cause the court primarily considers the diligence of

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the party seeking the modification. Plaintiff’s sole argument in the renewed motion is that the

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delay is attributable to prison mail delays. However, he has failed to explain why he did not

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request additional time and did not file a motion to compel until several months after the deadline

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expired. Accordingly, the court finds the renewed motion fails to show good cause sufficient to

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warrant reopening discovery.

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B. Motion to Compel

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1. Legal Standards

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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).

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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)).

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“The party seeking to compel discovery has the burden of establishing that its request
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-cv-

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5646-AWI-SMS PC, 2008 WL 860523, at *4 (E.D. Cal. Mar. 27, 2008).

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2. Analysis

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The prior order also advised that a party seeking to compel discovery must inform the

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court “which discovery requests are the subject of the motion to compel, which responses are

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disputed, why the responses are deficient, why the objections are not justified, and why the

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information is relevant. (ECF No. 128 at 4.) Plaintiff has alleged all of the responses received

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were inadequate and made clear that he disagrees with the objections raised. (ECF No. 130 at 4,

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7-8.) However, plaintiff’s disagreement is not sufficient to show that the objections should be

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overruled. Johnson v. Cate, No. 1:10–cv–02348–LJO–MJS, 2014 WL 4249141, at *6 (E.D. Cal.

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Aug. 27, 2014) (A mere disagreement with the responding party’s responses is not a basis for

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objection.). The renewed motion to compel should also be denied on the merits.
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C. Reconsideration

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1. Legal Standards

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Under Federal Rule of Civil Procedure 60, reconsideration is appropriate in three

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instances: (1) when there has been an intervening change of controlling law; (2) new evidence has

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come to light; or (3) when necessary to correct a clear error or prevent manifest injustice. School

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District No. 1J v. ACandS, Inc., 5 F.3d 1255, 1262 (1993). Additionally, the local rules state that

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a motion for reconsideration must demonstrate: “what new or different facts or circumstances are

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claimed to exist which did not exist or were not shown upon such prior motion, or what other

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grounds exist for the motion; and [] why the facts or circumstances were not shown at the time of

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the prior motion.” E.D. Cal. R. 230(j)(3), (4).

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2. Analysis

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To the extent plaintiff seeks reconsideration of the court’s denial of his motion to compel,

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he fails to show any change of law or new information sufficient to warrant a change in the

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ruling. Plaintiff’s motion largely reiterates the arguments contained in his motion to compel. He

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has also stated that he failed to timely file his motion to compel because of prison mail delays

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exacerbated by the COVID-19 pandemic. Such arguments fail to show a change in the law or

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new evidence sufficient to warrant reconsideration.

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Plaintiff failed to timely file a motion to compel or seek additional time to file a motion to

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compel. He acknowledges in his motion that he was aware of prison mail delays well before

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submitting discovery requests to defendants. However, he makes no attempt to explain why he

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failed to present this argument earlier. Thus, his motion fails to present an argument that would

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support reconsideration of the prior order denying his motion to compel.

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V.

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Opposition to Motion for Summary Judgment
Defendants have filed motions for summary judgment. (ECF Nos. 118, 121.) Plaintiff is

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advised that his opposition to such motions is overdue. Plaintiff shall file an opposition or

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statement of non-opposition to defendants’ motions within thirty days of the date of this order.

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VI.

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

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reconsideration (ECF No. 130) is denied.

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Dated: June 30, 2022

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

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