Gomez v. Acharya et al

Filing 68

ORDER signed by Magistrate Judge Carolyn K. Delaney on 10/7/2020 DENYING plaintiff's 60 motion to compel; DENYING plaintiff's 62 motion for extension of time; DENYING, as moot, defendants' 61 motion to modify scheduling order; and GRANTING defendants' 66 motion to modify the scheduling order. Defendants shall have until 11/6/2020 to file their dispositive motion. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EDWARD GOMEZ,

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Plaintiff,

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No. 2:17-cv-2407 MCE CKD P

v.

ORDER

ACHARYA, et al.,

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Defendants.

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Plaintiff, a state prisoner at the California Health Care Facility, proceeds pro se with a

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civil rights complaint filed pursuant to 42 U.S.C. § 1983. Plaintiff has filed a motion to compel

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discovery and motion for an extension of time, (ECF No. 60; ECF No. 62) and defendants have

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filed motions to modify the discovery and scheduling orders. (ECF No. 61, 66.)

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I.

Motion to Compel
The scope of discovery under Federal Rule of Civil Procedure 26(b)(1) is broad.

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Discovery may be obtained as to “any nonprivileged matter that is relevant to any party’s claim or

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defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). “Information within

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this scope of discovery need not be admissible in evidence to be discoverable.” Id. The court,

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however, may limit discovery if it is “unreasonably cumulative or duplicative, or can be obtained

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from some other source that is more convenient, less burdensome, or less expensive;” or if the

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party who seeks discovery “has had ample opportunity to obtain the information by discovery;”
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or if “the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P.

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26(b)(2)(C). The purpose of discovery is to “make a trial less a game of blind man’s bluff and

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more a fair contest with the basic issues and facts disclosed to the fullest practicable extent,”

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United States v. Procter & Gamble Co., 356 U.S. 677, 682 (1958) (citation omitted), and “to

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narrow and clarify the basic issues between the parties,” Hickman v. Taylor, 329 U.S. 495, 501

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(1947).

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Where a party fails to produce documents requested under Federal Rule of Civil

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Procedure 34, the party seeking discovery may move for compelled production. Fed. R. Civ. P.

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37(a). “The party seeking to compel discovery has the burden of establishing that its request

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

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has 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. 07-cv-0200 JM PCL, 2009 WL

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1390794 at *1, 2009 U.S. Dist. LEXIS 42339 at *3 (S.D. Cal. May 14, 2009) (citations omitted);

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see also Nugget Hydroelectric, L.P. v. Pac. Gas & Elec. Co., 981 F.2d 429, 438-39 (9th Cir.

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1992) (upholding denial of motion to compel because moving party did not show the request fell

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within the scope of Rule 26(b)(1)). The opposing party is “required to carry a heavy burden of

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showing why discovery was denied.” Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir.

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1975).

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Plaintiff asks the court to compel defendants to produce responses to “Production, Set III’

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and “Interrogatories, Set III.” (ECF No. 60 at 1.) Specifically, he requests surveillance footage,

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and states that his case will suffer actual and substantial prejudice without this footage. (Id. at 2.)

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Discovery closed on March 10, 2020. (ECF No. 51.) All motions to compel were due by this

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date. (Id. at 2.) Plaintiff filed the instant motion four months after the close of discovery and

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failed to provide a reason for this delay. Additionally, the responses he requests relate to

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untimely interrogatories and requests for production that were served three months after

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discovery closed. (See ECF No. 63-1 ¶¶ 4, 5; Ex. C.) Pro se litigants must abide by the rules of

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the court, including discovery deadlines. See Bias v. Moynihan, 508 F.3d 1212, 1223 (9th Cir.

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2007) (citing Carter v. Comm’r, 784 F.2d 1006, 1008 (9th Cir. 1986)); Meeks v. Nunez, No. 132

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CV-973-GPC(BGS), 2017 WL 908733, at *10 (S.D. Cal. Mar. 8, 2017). Plaintiff did not request

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additional time to file his motion to compel or to serve his untimely discovery requests, and to

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date, has provided no explanation on why it was these were untimely.

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Assuming, arguendo, that plaintiff had timely requested the discovery and timely filed a

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motion to compel, it is the moving party’s burden to demonstrate actual and substantial prejudice

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from a denial of discovery. Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). Plaintiff makes

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a conclusory statement that he will be prejudiced, however, plaintiff has previously conducted

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two rounds of requests for production and one round of interrogatories which defendants

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responded to. (See ECF Nos. 50, 51; ECF 63-1, Exs. A-B.) Plaintiff was previously granted an

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extension of the discovery deadline. (ECF No. 51.) Moreover, defendants have previously

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indicated that they do not have responsive material in their possession, custody, or control. (See

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ECF No. 63 at 5; ECF No. 63-1, ex. B); Boyd v. Etchebehere, No. 01966, 2016 WL 829167, at *4

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(E.D. Cal. Mar. 3, 2016) (“Absent evidence to the contrary, not present here, Plaintiff is required

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to accept defense counsel’s representation that such documentation either does not exist or cannot

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be located, and Defendant cannot be compelled to provide copies of documents that do not

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exist.”).

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Plaintiff’s requests and subsequent motion to compel were untimely. Additionally, plaintiff

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has failed to satisfy the burden of demonstrating actual and substantial prejudice. Accordingly,

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plaintiff’s motion will be denied.

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II.

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On August 13, 2020, over five months after the close of discovery, plaintiff requested via a

Request to Reopen Discovery

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motion titled “extension of discovery” that the court reopen discovery. (ECF No. 62.) Plaintiff

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states that due to “extraordinary circumstances” such as the COVID-19 crisis, it has been harder

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for inmates to leave their cells, (id. at 2) and so he should be allowed to extend the already passed

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discovery deadlines. This reasoning is not persuasive. Discovery closed on March 10, 2020,

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prior to when plaintiff would have been subjected to limited programming put in place to limit the

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spread of COVID-19. (See Decl. Counsel Supp. Defs.’ First Mot. Modify, ECF No. 55-1 at 1-2

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(describing the timing of the Governor’s shelter-in-place order).) Plaintiff has not explained why
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he did not request additional time prior to the close of discovery, nor has he identified new

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information warranting the reopening of discovery. See Dimitre v. California State Univ.

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Employees’ Union, No. 2:17-CV-01698-KJM-DB, 2019 WL 4670827, at *2 (E.D. Cal. Sept. 25,

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2019) (denying request to reopen discovery when the plaintiff did not claim the need to reopen

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was unforeseeable or identify otherwise exceptional circumstances). Accordingly, this request is

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denied.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to compel discovery (ECF No. 60) is DENIED;

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2. Plaintiff’s motion for extension of time (ECF No. 62) is DENIED;

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3. Defendants’ motion to modify scheduling order (ECF No. 61) is DENIED as moot; and

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4. Good cause appearing, defendants’ motion to modify scheduling order (ECF No. 66) is

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GRANTED. Defendants shall have until November 6, 2020, to file their dispositive motion.

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Dated: October 7, 2020

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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