Steward v. Thumser et al

Filing 60

ORDER and REVISED SCHEDULING ORDER signed by Magistrate Judge Kendall J. Newman on 8/14/2018 PARTIALLY GRANTING 57 Motion as follows: defendants to provide responses to interrogatories 26, 35 through 38, and 42, within 30 days from the date of thi s order; no responses required to the remaining interrogatories; and no new discovery may be propounded by any party; and REVISING 52 Discovery and Scheduling Order as follows: reopening discovery for the sole purpose of resolving the responses to interrogatories required by this order until 10/4/2018, with any motions necessary to compel discovery provided pursuant to this order filed by that date; and all pretrial motions, except motions to compel discovery, to be filed on or before 12/13/2018. In all other respects, except as modified by this order, 52 Discovery and Scheduling order remains in effect.. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DONNY STEWARD,

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No. 2:16-cv-1232 TLN KJN P

Plaintiff,
v.

ORDER AND REVISED SCHEDULING
ORDER

G. THUMSER, et al.,
Defendants.

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Plaintiff is a state prisoner, proceeding pro se. Plaintiff filed a motion for leave of court to

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propound additional interrogatories. Defendants oppose the motion. Plaintiff did not file a reply.

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As set forth below, plaintiff’s motion is partially granted. In light of this order, the scheduling

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order is also modified.

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Motion to Propound More Interrogatories

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Plaintiff propounded written discovery, including a set of 51 interrogatories. Defendants

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responded to the maximum 25 interrogatories as authorized under Rule 33(a)(1) of the Federal

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Rules of Civil Procedure. Plaintiff appears to ask that defendants be required to answer

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interrogatories 26 through 51.

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This action proceeds on plaintiff’s claims that on December 12, 2013, defendants Olson,

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Harrison, Pompey, Tapiz, and Jones used excessive force and failed to protect plaintiff when an

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allegedly excessive amount of pepper spray was used on plaintiff while he was engaged in a fight
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with another inmate, and allegedly used hot water to decontaminate plaintiff thereafter. (ECF No.

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15.)

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(a) In General.

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(1) Number. Unless otherwise stipulated or ordered by the court, a
party may serve on any other party no more than 25 written
interrogatories, including all discrete subparts. Leave to serve
additional interrogatories may be granted to the extent consistent
with Rule 26(b)(1) and (2).

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(2) Scope. An interrogatory may relate to any matter that may be
inquired into under Rule 26(b). An interrogatory is not objectionable
merely because it asks for an opinion or contention that relates to fact
or the application of law to fact, but the court may order that the
interrogatory need not be answered until designated discovery is
complete, or until a pretrial conference or some other time.

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Fed. R. Civ. P. 33(a).

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Review of plaintiff’s interrogatories confirms that plaintiff propounded multiple

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interrogatories that included his arguments concerning the case or addressed issues unrelated to

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the facts of this case. See, e.g., interrogatories 2 through 9; 22 through 25. (ECF No. 57 at 12-16;

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27-29.) Therefore, plaintiff could have obtained his discovery within the 25 interrogatory limit

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had he appropriately tailored his questions. That said, plaintiff is proceeding without benefit of

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counsel. Therefore, the undersigned will review plaintiff interrogatories 26 through 51 to

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determine whether defendants should be required to respond.

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In interrogatory 26, plaintiff asked whether on December 12, 2013, or at any time, did

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inmate Nunez, the inmate with whom plaintiff fought on December 12, 2013, make a statement to

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Lt. Olson or Sgt. Swan or any official at any time about the altercation he allegedly had with

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plaintiff. (ECF No. 57 at 29.) Inmate Nunez is a nonparty; however, statements he made that are

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relevant to the altercation at issue herein may be relevant or lead to the discovery of relevant

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information. Therefore, defendants shall answer interrogatory 26 with regard to any statement

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made by inmate Nunez to Lt. Olson, Sgt. Swan, or any other prison official in connection with a

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subsequent rules violation or disciplinary hearing concerning the December 12, 2013 incident, as

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to plaintiff or inmate Nunez, regarding the use of force on December 12, 2013, or shortly

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thereafter.
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Plaintiff’s interrogatories 27 through 30, 34, 43, and 44 concern the timely processing of a

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Health Care Services Request ten days after the December 12, 2013 incident, a form-22 that

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plaintiff submitted over one month after the incident, a request for medical opinion regarding how

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certain injuries could have occurred, communications with plaintiff and nonparties in this case,

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including plaintiff’s psychiatrist, and why nonparty mental health staff reached their conclusions.

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(ECF No. 57 at 29-31; 32, 35.) As argued by defendants, the instant action does not allege

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medical deliberate indifference, and defendants are not medical professionals; thus, defendants

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are not required to further answer interrogatories 27-30, 34, 43 or 44. Also, plaintiff is advised

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that interrogatories may only be propounded to parties. Fed. R. Civ. P. 33. Because R.N.

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Amarcas and V. Pacheco, Psy.D., are not parties to this action, defendants are also not required to

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answer interrogatories 34, 43 or 44. Thus, no response to interrogatories 27 through 30, 34, 43,

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and 44 is required by defendants.

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Interrogatories 31 through 33 ask defendant correctional officers to answer questions

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about why plaintiff’s administrative appeals were processed in a certain way. (ECF No. 57 at 31-

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32.) But correctional officers do not process appeals; therefore, such interrogatories are outside

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the scope of their knowledge as correctional officers. Plaintiff did not ask for information as to

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whether the appeals he filed exhausted the claims at issue here. Thus, defendants are not required

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to answer interrogatories 31 through 33. As argued by defendants, if defendants raise failure to

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exhaust as an affirmative defense in a dispositive motion, plaintiff may challenge such grounds in

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his opposition.

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Interrogatories 35 through 38 concern whether a report was prepared by the I.S.U. or the

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ISO gang task force concerning the December 12, 2013 incident, and therefore could result in the

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discovery of potentially relevant information. Defendants shall respond to interrogatories 35

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through 38.

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Interrogatories 39, 45, 46, and 48 - 51 ask defendants about what actions and statements

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were made between plaintiff and nonparty Torres at the hearing on the rules violation report.

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(ECF No. 57 at 33-34, 35-38.) None of these interrogatories are relevant because the questions

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do not concern the actions or statements of the named defendants. Moreover, Torres is a
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nonparty who is not required to answer interrogatories. Defendants are not required to answer.
In his interrogatories 40 and 41, plaintiff seeks information about inmate Nunez, the

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inmate with whom plaintiff fought on December 12, 2013, as to when and why was Nunez

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released from administrative segregation. (ECF No. 57 at 29, 34.) However, what occurred to

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nonparty Nunez after the altercation is not at issue in this lawsuit. Defendants are not required to

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answer interrogatories 40 and 41. Finally, to the extent plaintiff seeks information that can be

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obtained from medical records, plaintiff may review and obtain medical records through an Olson

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Review.

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In interrogatory 42, plaintiff asks who were the porters in J-1 on duty at the time Officer

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Tapiz and Jones found it necessary to decontaminate plaintiff, allegedly under hot water. (ECF

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No. 57 at 34.) Because this interrogatory may lead to relevant information, defendants shall

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respond to interrogatory 42.

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Interrogatory 47 asks why plaintiff was first housed at the California Medical Facility,

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which is not at issue here. Defendants are not required to answer interrogatory 47.

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Revised Scheduling Order

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In light of this order granting additional discovery, the dates for discovery and the filing of
pretrial motions must be extended.
“The district court is given broad discretion in supervising the pretrial phase of litigation.”

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Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) (citation and internal

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quotation marks omitted). Rule 16(b) provides that “[a] schedule may be modified only for good

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cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). “The schedule may be modified

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‘if it cannot reasonably be met despite the diligence of the party seeking the extension.’”

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Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (quoting

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Johnson, 975 F.2d at 607).

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Because defendants are required to provide additional answers to interrogatories, the

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discovery deadline is extended to October 4, 2018. No additional discovery may be propounded

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during this time frame; rather, the deadline is extended to allow defendants to respond to the

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interrogatories as ordered, and to provide plaintiff time to review the responses and file a motion
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to compel further responses, if necessary. In light of the extension of the discovery deadline, the

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pretrial motions deadline, except for motions to compel discovery, is extended to December 13,

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2018. In all other respects, except as modified by this order, the March 20, 2018 discovery and

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scheduling order remains in effect.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion (ECF No. 57) is partially granted:

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a. Within thirty days from the date of this order, defendants shall provide
responses to interrogatories 26, 35 through 38, and 42; and

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b. No responses are required to the remaining interrogatories.

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2. No new discovery may be propounded by any party;

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3. The March 20, 2018 discovery and scheduling order is revised as follows:

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a. Discovery is reopened for the sole purpose of resolving the responses to
interrogatories required by this order;

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b. Discovery closes October 4, 2018; any motions necessary to compel discovery
provided pursuant to this order shall be filed by that date; and

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c. All pretrial motions, except motions to compel discovery, shall be filed on or

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before December 13, 2018. Motions shall be briefed in accordance with paragraph 8 of this

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court’s order filed November 13, 2017.

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Dated: August 14, 2018

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/stew1232.mtc

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