O'Connor v. Perez et al

Filing 98

ORDER signed by Magistrate Judge Deborah Barnes on 08/31/20 DENYING 77 Motion for Reconsideration ; DENYING 78 Motion for Sanctions; and DENYING 86 Motion for third party subpoenas. Within 45 days of the date of this order defendants shall file a response indicating the status of any outstanding discovery requests, the reason any requests have not been answered, and indicating whether any responses need to be verified. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GLENN O’CONNOR,

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No. 2:18-cv-1057 DB P

Plaintiff,

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v.

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W. PEREZ, et al.,

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ORDER

Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action under 42 U.S.C. §

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1983. Plaintiff claims defendants violated his Eighth Amendment rights. Presently before the

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court is plaintiff’s motion for reconsideration (ECF No. 77), plaintiff’s motion for sanctions (ECF

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No. 78), second motion for third party subpoenas (ECF No. 86), and plaintiff’s notice of

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outstanding issues (ECF No. 94). For the reasons stated below, the court will deny the motions

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and direct defendants to file a response informing the court of the status of any outstanding

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discovery requests.

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MOTION FOR RECONSIDERATION
Plaintiff moves for reconsideration of the court’s order denying his motion to propound

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additional interrogatories. (ECF No. 77.) In support of his motion plaintiff argues that the court

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should grant his motion because it issued the order denying his motion before considering the

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arguments contained in his reply (ECF No. 68).
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“A motion for reconsideration should not be granted, absent highly unusual

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circumstances, unless the district court is presented with newly discovered evidence, committed

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clear error, or if there is an intervening change in the controlling law.” Marlyn Nutraceuticals,

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Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotation marks

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and citations omitted). Additionally, Local Rule 230(j) requires that a motion for reconsideration

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state “what new or different facts or circumstances are claimed to exist which did not exist or

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were not shown upon such prior motion, or what other grounds exist for the motion,” and “why

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the facts or circumstances were not shown at the time of the prior motion.” E.D. Cal. Local Rule

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230(j)(3)-(4).

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The undersigned denied the motion to serve additional interrogatories because it was not

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clear how many additional interrogatories plaintiff wanted to submit and because plaintiff had not

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submitted proposed interrogatories or specified what additional information he sought. Plaintiff

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has specified that he seeks leave to propound 300 total interrogatories and indicated that after

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submitting the original set of interrogatories he needs to ask follow-up questions. However, it is

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not clear how many interrogatories plaintiff has already submitted to defendants and how many

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additional interrogatories plaintiff needs to get the information sought. Further, plaintiff was

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instructed that any future motion should include proposed interrogatories and state specifically

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why additional interrogatories are necessary. (See ECF No. 67 at 4.)

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Plaintiff’s motion for reconsideration does not include proposed interrogatories and he has

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not specified how many additional interrogatories he seeks. Accordingly, after a review of the

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original motion (ECF No. 59), the reply (ECF No. 68), and the motion for reconsideration (ECF

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No. 77), the court finds that plaintiff has not shown good cause to propound 300 total

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interrogatories.

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MOTION FOR SANCTIONS
Plaintiff has moved for an order sanctioning the defendants. (ECF No. 78.) Plaintiff

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argues that defendants should be sanctioned because he did not receive their opposition to his

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motion to compel on the day it was due. The court determined in its April 24, 2020 order that

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sanctions were not appropriate because court records indicated that defendants timely filed their
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opposition. (ECF No. 81 at 2.) The court notes that in on the final page of that order the wrong

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docket number was used. Accordingly, the court will clarify that plaintiff’s second motion for

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sanctions (ECF No. 78) is denied for the reasons stated in the April 24, 2020 order.

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MOTION FOR THIRD PARTY SUBPOENAS

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I.

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Motion for Subpoenas
Plaintiff seeks an order directing individuals at Mule Creek State Prison (MCSP) to issue:

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(1) the work product defendants produced when they processed his health care requests and (2)

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correspondence MCSP employees have from plaintiff, not including inmate appeals, while he was

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housed at MCSP. (ECF No. 86.) Regarding his first request plaintiff states that he “believes each

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defendant utilized a state-owned computer workstation, logging in and displaying ‘screens’ of use

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in the process of ‘triage.’” (ECF No. 86 at 3.)

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II.

Legal Standards

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A subpoena duces tecum, served pursuant to Federal Rule of Civil Procedure 45(a)(2),

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directs a non-party to an action to produce documents or other tangible objects for inspection.

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This court must consider the following matters before approving service of a proposed subpoena

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duces tecum. A subpoena must comply with the relevance standards set forth in Federal Rule of

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Civil Procedure 26(b)(1) (“[p]arties may obtain discovery regarding any nonprivileged matter that

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is relevant to any party’s claim or defense and proportional to the needs of the case”), and

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considerations of burden and expense set forth in Federal Rules of Civil Procedure 26(b)(2)(C)

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and 45(d). The “Federal Rules of Civil Procedure were not intended to burden a non-party with a

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duty to suffer excessive or unusual expenses in order to comply with a subpoena duces tecum.”

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Badman v. Stark, 139 F.R.D. 601, 605 (M.D. Pa. 1991) (requiring indigent plaintiff to

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demonstrate that he had “made provision for the costs of such discovery”), citing Cantaline v.

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Raymark Industries, Inc., 103 F.R.D. 447, 450 (S.D. Fla. 1984); see also United States v.

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Columbia Broadcasting System, Inc., 666 F.2d 364 (9th Cir. 1982) (court may award costs of

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compliance with subpoena to non-party). Non-parties are “entitled to have the benefit of this

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Court’s vigilance” in considering these factors. Badman, 139 F.R.D. at 605.

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Additionally, courts in this district require that a motion requesting issuance of a subpoena

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duces tecum be supported by: (1) clear identification of the documents sought and from whom,

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and (2) a showing that the records are obtainable only through the identified third party. See e.g.

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Davis v. Ramen, No. 1:06-cv-1216 AWI SKO PC, 2010 WL 1948560, at *1 (E.D. Cal. May 11,

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2010); Williams v. Adams, No. 1:05-cv-0124 AWI SMS PC, 2010 WL 148703, *1 (E.D. Cal.

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Jan. 13, 2010). The person to whom the subpoena is directed must be clearly and readily

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identifiable, with an accurate physical address to enable personal service of the subpoena. See

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Fed. R. Civ. P. 45(a)(1)(A)(iii).

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Finally, pursuant to Rule 45(c)(2), a subpoena duces tecum commands the recipient to

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“produce” documents. Plaintiff is advised that he may be provided access to review documents

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but that if he wishes to have copies of the documents, he may be required to photocopy them at

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his own expense.

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III.

Discussion
In his first request plaintiff seeks the “work product” created by defendants when

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reviewing his health care request forms. Plaintiff believes defendants used a computer that

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displayed “‘screens’ of used in the process of ‘triage.’”
Plaintiff’s request is aimed at attaining information regarding how his health care requests

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were processed or triaged by the defendants. Such information could be obtained by asking

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defendants for copies of these records rather than through a third party. Because the information

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sought is available by a discovery request directed toward defendants, the court will deny

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plaintiff’s request for third party subpoena as to his first request.
Plaintiff’s second request, for all of the correspondence MCSP have on file from plaintiff,

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is overbroad. The court finds that plaintiff has failed to establish that all the correspondence he

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sent while incarcerated at MCSP is relevant to his claim in this action. Additionally, plaintiff has

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failed to identify a specific person to whom this request is directed toward. Accordingly, the

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court finds that plaintiff’s motion for third party subpoena should be denied.

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NOTICE RE UNRESOLVED ISSUES
Plaintiff has filed a document captioned “Notice re Unresolved Issues.” Therein, plaintiff

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states that there are several issues that remain outstanding in this action. Plaintiff has also

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indicated that the court has not responded to his request for instruction or assistance (ECF No. 47)

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or his request for clarification (ECF No. 87). He is advised that those documents have not been

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addressed because the court cannot give plaintiff legal advice. See Rodriguez v. Simmons, No.

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2:09-cv-2195 KJN PS, 2011 WL 704637 at *2 (E.D. Cal. Feb. 18, 2011); Zamaro v. Moonga, No.

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1:09-cv-0580 GSA PC, 2009 WL 5197851 at *1, (E.D. Cal. Dec. 22, 2009).

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In response to discovery requests from plaintiff, defendants sent him various documents.

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(ECF No. 94 at 3.) Plaintiff communicated to counsel that all of the documents he had received

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stated, “verification to follow.” However, up until the last set of documents, none of the

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documents were verified. Plaintiff alleges this is a violation of Federal Rule of Civil Procedure

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33. Plaintiff later states that on July 30, 2020 he received a verification for defendants’ responses

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to the third set of interrogatories. (ECF No. 94 at 10.) He further states that “[t]he court will have

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to decide if these are valid. Plaintiff will not send copies of these.” (Id.)

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Plaintiff is advised that the court cannot determine the validity of documents that have not

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been presented to the court. Plaintiff alleges that on May 13, 2020 he sent a request for admission

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regarding a printout from plaintiff’s continuous positive airway pressure (CPAP) machine.

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Plaintiff alleges that defendants never responded. (ECF No. 10 at 7.)

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Because it is unclear what issues remain unresolved, the court will direct defendants to file

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a response whether there are any outstanding discovery requests and the status of the

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verifications.

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CONCLUSION

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For the reasons set forth above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for reconsideration (ECF No. 77) is denied;

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2. Plaintiff’s motion for sanctions (ECF No. 78) is denied;

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3. Plaintiff’s motion for third party subpoenas (ECF No. 86) is denied;

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4. Within forty-five days of the date of this order defendants shall file a response indicating

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the status of any outstanding discovery requests, the reason any requests have not been

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answered, and indicating whether any responses need to be verified.

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Dated: August 31, 2020

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DLB:12

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DLB:1/Orders/Prisoner/Civil.Rights/ocon1057.subp.clean

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