Reed v. Leatherman et al

Filing 24

ORDER signed by Magistrate Judge Carolyn K. Delaney on 6/14/2019 DENYING 18 Motion to Compel as to requests to produce numbers 6 and 7 and DENYING without prejudice 18 Motion to Compel as to requests to produce 1, 3, and 11 as described in this order. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PETER J. REED,

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No. 2:18-cv-0038 KJM CKD P
Plaintiff,

v.

ORDER

D. LEATHERMAN, et al.,
Defendants.

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Plaintiff is a California prisoner proceeding pro se with claims arising under the Eighth

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Amendment against defendants Leatherman, Shearer, Roberts, Dennis and Vitale, all employees

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of the California Department of Corrections and Rehabilitation. Plaintiff has filed a motion

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asking that the court compel defendants to provide further responses to request for production of

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documents numbers 1, 3, 6, 7 and 11.

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Requests 1, 3 and 11

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Defendants argue in their opposition that plaintiff’s motion to compel should be denied

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because plaintiff made no attempt to meet and confer with counsel for defendants prior to filing

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his motion to compel as required under Rule 37 of the Federal Rules of Civil Procedure. Plaintiff

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does not assert that he did try to meet and confer. The court also notes that there is a motion for

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summary judgment pending in which defendants assert plaintiff has not exhausted administrative

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remedies with respect to his claims. A favorable ruling on that motion would moot plaintiff’s
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motion to compel as the information sought in the motion to compel is not related to

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administrative remedy exhaustion.
In light of the foregoing, the fact that plaintiff’s motion to compel is not wholly without

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merit as to requests to produce 1, 3 and 11, and it is clear that there is a misunderstanding

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between the parties as to what plaintiff wants, what defendants have, and what defendants are

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willing to turn over, plaintiff’s motion to compel with respect to requests 1, 3 and 11 will be

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denied without prejudice. If this action survives defendants’ motion for summary judgment, and

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if at that point plaintiff still seeks further responses to requests for production 1, 3 and 11,

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plaintiff must meet and confer with counsel for defendants. If, after having done so, plaintiff has

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a good faith belief that counsel for defendants failed to provide plaintiff with access to documents

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to which plaintiff is entitled under the Federal Rules of Civil Procedure, plaintiff may file a

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second motion to compel. The motion must be filed no later than 45 days after resolution of the

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motion for summary judgment. Also, plaintiff will be required to certify in the motion that he

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met and conferred with counsel for defendants after resolution of the motion for summary

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judgment and made a good faith effort to resolve legitimate discovery disputes.

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Request 6
In request 6, plaintiff seeks any video footage of plaintiff being escorted from “Stand

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Alone Housing, to Crisis Bed Housing, on May 25th, 2016 (by defendant B. Dennis).” Counsel

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for defendants indicates that after a diligent search, no such footage could be found. Plaintiff fails

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to point to anything suggesting that the court should order a further response. Accordingly,

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plaintiff’s motion to compel will be denied with respect to request to produce number 6.

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Request 7

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In request 7, plaintiff seeks any video footage of plaintiff and any defendant on May 26th,

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2016 between 11:00 a.m. and 1:30 p.m. Again, defendants assert that after a diligent search, no

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such video was found. As with request 6, plaintiff fails to point to anything suggesting that the

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court should order a further response. Accordingly, plaintiff’s motion to compel will be denied

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with respect to request to produce number 7.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s December 21, 2018 motion to
compel (ECF No. 18) is:

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1. Denied as to requests to produce numbers 6 and 7; and

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2. Denied without prejudice as to requests to produce 1, 3, and 11 as described as above.

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Dated: June 14, 2019

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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reed0038.mtc

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