Gray v. Lewis et al

Filing 81

ORDER COMPELLING PLAINTIFF TO PROVIDE DISCOVERY (Illston, Susan) (Filed on 6/23/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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BERNARDOS GRAY,

Case No. 13-cv-04929-SI

Plaintiff,
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v.

ORDER COMPELLING PLAINTIFF TO
PROVIDE DISCOVERY

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G. D. LEWIS, et al.,

Re: Dkt. No. 78

Defendants.

United States District Court
Northern District of California

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On May 13, 2016, defendants filed a "Statement Regarding Discovery Dispute Concerning

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Plaintiff's Deposition Pursuant to the Court's Standing Order." Dkt. No. 78. In it, defendants

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request that the Court compel production of certain documents by plaintiff. Plaintiff does not

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oppose their statement. For the reasons set forth below, Defendants’ request is GRANTED.

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BACKGROUND

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In his pro se prisoner’s civil rights action, plaintiff claims that prison officials impeded his

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efforts to practice his Yahweh religion while housed at Pelican Bay State Prison. See Dkt. No. 10

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at 1:21-22.1 His complaint under 42 U.S.C. § 1983 alleges violations of his rights under the First

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Amendment, RLUIPA (the Religious Land Use and Institutionalized Persons Act), the Equal

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Protection Clause, and the Eighth Amendment. See Dkt. No. 10 at 4:15-17.

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During discovery, defendants deposed plaintiff. In their Notice of Deposition of Plaintiff

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Bernardos Gray and Requests for Production of Documents at Deposition, defendants requested

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production of nineteen categories of documents. Dkt. No. 78 at 2:21-23. These documents relate

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The page numbers cited refer to the page numbers generated by ECF.

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to plaintiff's requests for religious accommodations while in California Department of Corrections

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and Rehabilitation custody, his requests for religious accommodations while in Sacramento

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County Jail, his claims that defendants burdened his religious practices, communications with

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defendants concerning his religious practices, and evaluation of plaintiff's injuries. Dkt. No. 78 at

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2:23-27. According to defendants, the requested documents are relevant to plaintiff's claims that

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defendants "violated his religious rights by denying him (1) kosher meals, (2) the ability to

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practice unspecified religious ceremonies, (3) access to unspecified religious garments and books,

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(4) religious legal name change, (5) financial assistance, and (6) cellmate arrangements." Dkt. No.

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78 at 2:28-3:2.
In their Statement Regarding Discovery Dispute, defendants state that plaintiff has already

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United States District Court
Northern District of California

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provided a response to Request No. 12, but not to any other requests. See Dkt. No. 78 at 3:4.

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Defendants further report that, during a meet-and-confer telephone call on March 9, 2016, plaintiff

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agreed to produce all remaining documents with the exception of documents requested in Request

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Nos. 17 and 18. Dkt. No. 78 at 2:6-7. However, defendants did not receive any of the agreed-to

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documents from plaintiff by the April 8, 2016 deadline. Dkt. No. 68 at 2:11. Defendants note that

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they "attempted to meet and confer with plaintiff on several occasions to discuss the documents,"

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and extended the deadline for production multiple times because plaintiff told defendants that "he

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could not produce any documents because Sacramento County Jail staff were withholding his

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legal property." Dkt. No. 78 at 2:212-16. Defendants last extended the deadline to May 6, 2016,

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but have yet to receive any of the remaining documents which plaintiff agreed to produce. Dkt.

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No. 78 at 2:16-18. Defendants now request that the Court compel plaintiff to produce a response

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to Request Nos. 1-11, 13-16, and 19.2 Dkt. No. 78 at 3:3-5.

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In plaintiff’s original Response to the Defendants’ Request for Production of Documents,

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Set One, plaintiff objected to Request Nos. 17 and 18 (which were identical requests), seeking

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“[a]ll documents relating to all grievances [plaintiff] submitted through the Sacramento County

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Jail grievance system related to [plaintiff’s] religious practice” because they "seek[] confidential

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Plaintiff has already provided a response to Request No. 12. Dkt. No. 78 at 3:4.
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and private information, not relevant to any claims or defenses at issue in this lawsuit." Dkt. No.

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78-2 at 2:7-9, 9:10-10:2. Defendants urge in their Statement Regarding Discovery Dispute that

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"any grievances that plaintiff submitted to the Sacramento County Jail regarding his religious

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practice are clearly relevant and discoverable in this case." Dkt. No. 78 at 3:6-8.

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The court set a June 3, 2016 deadline for plaintiff to file an opposition to defendants’
Statement. Dkt. No. 79. Plaintiff has not filed any opposition.

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LEGAL STANDARD

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In general, parties may obtain discovery regarding any matter, not privileged, that is

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"relevant to any party's claim or defense and proportional to the needs of the case." Fed. R. Civ. P.

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United States District Court
Northern District of California

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26(b)(1). Factors to consider include “the importance of the issues at stake in the action, the

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amount in controversy, the parties' relative access to relevant information, the parties' resources,

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the importance of the discovery in resolving the issues, and whether the burden or expense of the

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proposed discovery outweighs its likely benefit.” Id. Discovery need not be admissible in

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evidence to be discoverable. Id.

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In order to claim a discovery privilege, a party must "expressly make the claim," and

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produce a privilege log documenting "the nature of the documents, communications, or tangible

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things not produced or disclosed." See Fed. R. Civ. P. 26(b)(5).

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A motion to compel a discovery response is appropriate when a party refuses to produce

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relevant, non-privileged discovery. See Fed. R. Civ. P. 37(a)(2). The movant must certify that it

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has in good faith conferred or attempted to confer with the party failing to make discovery in an

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effort to secure information or material without court action. See Fed. R. Civ. P. 37(a)(1).

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DISCUSSION

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The documents requested by defendants are relevant to plaintiff's claims and appear to be

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proportional to the needs of the case, with the time limit identified later in this order. Therefore,

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they are within the proper scope of discovery. See Fed. R. Civ. P. 26(b)(1).

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discovery sought is relevant information and plaintiff agreed to produce all remaining documents
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Because the

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with the exception of documents responsive to Request Nos. 17 and 18 but has failed to do so, the

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Court finds it appropriate to compel plaintiff to produce the requested documents. See Dkt. No. 78

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at 2:6-7.
In his initial response to the discovery requests, plaintiff objected that Request Nos. 17 and

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18, which sought information relating to grievances about Plaintiff’s religious practices at

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Sacramento County Jail, are "not relevant to any claims or defenses at issue in this lawsuit." Dkt.

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No. 78-2 at 9:18-19, 10:1-2. His objection is unpersuasive. While plaintiff's complaint is based

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on conditions at Pelican Bay State Prison rather than a county jail, the documents are nonetheless

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relevant as his grievance-filing activity at the county jail may give some insight as to the requests

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he made at Pelican Bay for religious accommodations. Further, the documents requested are

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United States District Court
Northern District of California

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proportional to the needs of the case as their benefit would likely outweigh any burden to plaintiff.

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See Fed. R. Civ. P. 26(b)(1). Plaintiff’s objection that the documents are "confidential and

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private" fails because he did not "expressly" claim any legally-recognized privilege and did not

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produce a privilege log. See Fed. R. Civ. P. 26(b)(5).

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Plaintiff told Defendants in April or May that he could not produce documents because the

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Sacramento County Jail was withholding his legal property. Dkt. No. 78 at 2:14-15. He has not

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informed the Court that that problem persists, nor has he provided any evidence to the Court (such

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as copies of his grievances and responses thereto) to show his efforts to obtain his documents.

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By extending plaintiff's deadline to produce documents twice, it appears that defendants

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made good faith, though unsuccessful, efforts to obtain these documents without court action. See

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Dkt. No. 78 at 2:13-16.

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In light of the fact that plaintiff has failed to submit his opposition to this discovery
dispute, the Court finds it appropriate to order plaintiff to produce each of these documents.

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CONCLUSION

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For the foregoing reasons, defendants' request to compel production of documents is
GRANTED. Dkt. No. 78.

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No later than July 15, 2016, plaintiff must produce all documents responsive to Request

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Nos. 1-11 and 13-19 contained in Defendants’ Notice Of Deposition Of Plaintiff Bernardos Gray

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And Requests For Production Of Documents At Deposition. Plaintiff need not produce any

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document that was written by him before January 1, 2011, and he need not produce any medical

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records that are dated before January 1, 2011.
Plaintiff is now cautioned that failure to produce these documents may result in sanctions.

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The sanctions that may be imposed include, but are not limited to: monetary sanctions, an order

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United States District Court
Northern District of California

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prohibiting plaintiff from using or testifying about any unproduced documents, an order

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prohibiting all testimony from plaintiff, and an order dismissing claims or the action.

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IT IS SO ORDERED.

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Dated: June 23, 2016
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SUSAN ILLSTON
United States District Judge

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