Vallery v. Brown et al

Filing 103

ORDER granting in part and denying in part Plaintiff's Doc. 69 Motion to Compel Disclosure and Cooperation in Discovery. Motion Hearing for Summary Judgment is currently set for 11/21/2011 at 10:00 AM before Magistrate Judge Ruben B. Brooks. Reply due by 11/11/2011. Signed by Magistrate Judge Ruben B. Brooks on 10/6/2011. (All non-registered users served via U.S. Mail Service)(aef)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RAYNARD VALLERY,

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Plaintiff,

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v.
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J. BROWN, et al.,

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Defendants.

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Civil No. 08cv00095 DMS(RBB)
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
MOTION TO COMPEL DISCLOSURE
AND COOPERATION IN DISCOVERY
[ECF NO. 69]

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Plaintiff Raynard Vallery, a California prisoner proceeding
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pro se and in forma pauperis, filed an action under 42 U.S.C. §
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1983 [ECF Nos. 1, 5, 47], which now proceeds against named
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Defendants Bell, Bourland, Brown, Dee, and Stratton for First,
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Fourth, and Eighth Amendment violations.1

The allegations in

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Vallery’s Second Amended Complaint surround Correctional Officer
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Brown’s purported sexual assault of Plaintiff at Calipatria State
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Prison (“Calipatria”), as well as the other prison officials’
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endorsement of officer Brown’s misconduct.

(See Second Am. Compl.

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These Defendants have successfully moved to dismiss several
causes of action over the course of the litigation [ECF Nos. 15,
32, 45, 48, 50, 55].
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08cv00095 DMS(RBB)

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10-12, 14, ECF No. 47.)2

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Dee, and Stratton filed an Answer [ECF No. 56], the parties have

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commenced discovery and have several disputes [ECF Nos. 67, 69,

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81].

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Since Defendants Bell, Bourland, Brown,

This Motion to Compel Disclosure and Cooperation in Discovery

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was filed nunc pro tunc to May 25, 2011 [ECF No. 69].

The

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Plaintiff seeks further responses to his requests for production of

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documents, requests for admissions, and interrogatories.

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Compel 4, 15, 24, ECF No. 69.)

(Mot.

Defendants’ Opposition to

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Plaintiff’s Motion to Compel Disclosure and Cooperation in

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Discovery was filed on July 19, 2011, along with the Declaration of

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John P. Walters and exhibits [ECF No. 86].

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substantive objections, Defendants Bell, Bourland, Brown, Dee, and

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Stratton argue that the Motion should be denied because it is

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untimely, and it seeks responses to discovery that was untimely

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served.

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2011, Plaintiff’s Reply to Defendants’ Opposition to Motion to

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Compel was filed [ECF No. 94].

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In addition to raising

(See Opp’n Mot. Compel 2-8, ECF No. 86.)

On August 26,

The Court finds the Motion to Compel suitable for resolution
See S.D. Cal.

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on the papers, pursuant to Civil Local Rule 7.1.

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Civ. R. 7.1(d)(1).

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Defendants’ Opposition, and Plaintiff’s Reply.

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stated below, Plaintiff’s Motion to Compel Disclosure and

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Cooperation in Discovery is GRANTED in part and DENIED in part.

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//

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//

The Court has reviewed Vallery’s Motion, the
For the reasons

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Because the Second Amended Complaint is not consecutively
paginated, the Court will cite to it using the page numbers
assigned by the Court’s electronic case filing system.
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08cv00095 DMS(RBB)

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I.

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FACTUAL BACKGROUND

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The allegations in the Second Amended Complaint surround

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events that occurred while Vallery was housed at Calipatria.

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(Second Am. Compl. 1, ECF No. 47.)

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April 15 and 17, 2004, Correctional Officer Brown sexually

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assaulted Vallery by improperly searching him while Brown’s

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superior, Correctional Sergeant Dee, observed.

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13.)

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The Plaintiff contends that on

(Id. at 6-8, 12-

Vallery argues that Defendant Brown violated the Fourth and

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Eighth Amendments when he improperly searched Plaintiff for sexual

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gratification.

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violated the Eighth Amendment because she was aware of Brown’s

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misconduct but did nothing to prevent it.

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asserts that Warden Bourland, Correctional Lieutenant Stratton, and

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Appeals Coordinator Bell violated his Eighth Amendment rights by

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acting with deliberate indifference to the risk that Brown would

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assault Vallery.

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maintains that unnamed mailroom employees violated the First

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Amendment by preventing the delivery of Plaintiff’s letter to the

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FBI.

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Amendment by their “actions which resulted from deliberate

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indifference.”

(Id. at 12.)

Defendant Dee is alleged to have

(See id. at 10-12, 14.)

(Id. at 14.)

(Id.)

The Plaintiff

Finally, Plaintiff

The mailroom workers also violated the Eighth

(Id.)

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II.

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LEGAL STANDARDS

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It is well established that a party may obtain discovery

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regarding any nonprivileged matter that is relevant to any claim or

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defense.

Fed. R. Civ. P. 26(b)(1).

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Relevant information need not

08cv00095 DMS(RBB)

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be admissible at trial so long as the discovery appears to be

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reasonably calculated to lead to the discovery of admissible

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evidence.

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matter that bears on, or reasonably could lead to other matter that

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could bear on, any issue that may be in the case.

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Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citing Hickman v.

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Taylor, 329 U.S. 495, 501 (1947)) (footnote omitted).

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the Federal Rules of Civil Procedure enables the propounding party

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to bring a motion to compel responses to discovery.

Id.

Relevance is construed broadly to include any

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P. 37(a)(3)(B).

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resisting disclosure.

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Oppenheimer

Rule 37 of

Fed. R. Civ.

(C.D. Cal. 1992).

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The party opposing discovery bears the burden of
Miller v. Pancucci, 141 F.R.D. 292, 299

“In general, pro se representation does not excuse a party

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from complying with a court’s orders and with the Federal Rules of

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Civil Procedure.”

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F.3d 852, 856-57 (8th Cir. 1996) (citing Jones v. Phipps, 39 F.3d

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158, 163 (7th Cir. 1994); Anderson v. Home Ins. Co., 724 F.2d 82,

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84 (8th Cir. 1983)).

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themselves must abide by the rules of the court in which they

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litigate.

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1986); see also Bias v. Moynihan, 508 F.3d 1212, 1223 (9th Cir.

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2007) (discussing the pro se litigant’s violation of local rules).

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“[W]hile pro se litigants may be entitled to some latitude when

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dealing with sophisticated legal issues, acknowledging their lack

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of formal training, there is no cause for extending this margin to

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straightforward procedural requirements that a layperson can

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comprehend as easily as a lawyer.”

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109 (6th Cir. 1991); Cone v. Rainbow Play Sys., No. CIV 06-4128,

Fingerhut Corp. v. Ackra Direct Mktg. Corp., 86

Above all, plaintiffs who choose to represent

Carter v. Comm’r, 784 F.2d 1006, 1008-09 (9th Cir.

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Jourdan v. Jabe, 951 F.2d 108,

08cv00095 DMS(RBB)

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2008 U.S. Dist. LEXIS 17489, at *4 (D.S.D. Mar. 5, 2008)

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(explaining that pro se litigants must follow procedural rules).

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III.

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DISCUSSION

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A.

Requests for Production of Documents

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A portion of the relief Vallery seeks in this Motion to

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Compel responses to his document requests duplicates the relief he

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sought his Motion for Order of Disclosure and In Camera Review.

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(Compare Mot. Compel 4-12, ECF No. 69, with Mot. Order Disclosure

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1-2, ECF No. 67.)

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requests for production of documents to which Vallery sought

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responses in his separate Motion for Order of Disclosure [ECF No.

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102].

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consider the document requests that it has not already addressed.

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At issue in this Motion, then, are Vallery’s requests for

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production of documents 32 and 33 in set one, and requests 2, 3,

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and 4 in set two.

The Court issued a separate ruling on the

When analyzing this Motion to Compel, the Court will only

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1.

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Vallery asks the Defendants to produce “[t]he full names

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(first, middle, last) of each member of the Calipatria Prison

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mailroom in July of 2004.”

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10, ECF No. 86.)3

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because it asks them to create a list as opposed to produce

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documents already in existence.

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2, ECF No. 86.)

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solicits already-generated records reflecting the names of the

Request for Production of Documents 32:

Set One

(Opp’n Mot. Compel Attach. #2 Ex. A, at

Defendants object that the request is improper

(Id.; see also Opp’n Mot. Compel

In response, Vallery maintains that request 32

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Both Plaintiff and Defendants include with their briefs
copies of the discovery at issue. The Court will reference both
papers when citing to the discovery requests and responses.
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mailroom employees employed in July 2004 and does not require

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Defendants to create a list or answer an interrogatory.

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Compel 12-13, ECF No. 69; Reply Mot. Compel 2, ECF No. 94.)

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(Mot.

A party may serve on another party a request to produce any

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designated documents that are in the responding party’s possession,

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custody, or control.

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party is not required to prepare new documents solely for their own

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production.

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2000).

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Fed. R. Civ. P. 34(a)(1).

Nonetheless, a

Alexander v. FBI, 194 F.R.D. 305, 310 (D.C. Cir.

“Therefore, Rule 34 only requires a party to produce

documents that are already in existence.”

Id.

Defendants maintain that they must create a list of names of

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the Calipatria mailroom employees in order to respond to the

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document request.

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are no documents that identify individuals working in the

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Calipatria Prison mailroom in July of 2004, a request for

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production of documents is not the proper vehicle for obtaining the

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information.

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request to compel a list of people whose background summaries were

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requested by the White House because there was no evidence that the

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Executive Office of the President possessed such a list); Goolsby

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v. Carrasco, No. 1:09-cv-01650 JLT(PC), 2011 U.S. Dist. LEXIS

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71627, at *20-21 (E.D. Cal. July 5, 2011) (finding that a document

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request asking for the names of employees who supervised the prison

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cage yard is not a proper request under Federal Rule of Civil

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Procedure 34(a)); Robinson v. Adams, No. 1:08-cv-01380-AWI-SMS PC,

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2011 U.S. Dist. LEXIS 60370, at *53 (E.D. Cal. May 27, 2011)

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(denying plaintiff’s motion to compel responses to a document

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request seeking the names of prison employees working in building

(See Opp’n Mot. Compel 2, ECF No. 86.)

If there

See Alexander, 194 F.R.D. at 310 (denying plaintiffs’

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08cv00095 DMS(RBB)

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two during a certain time period because the request did not seek

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an identifiable document).

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Defendants are correct that they are not required to create a

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list of employees in response to a request for documents.

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Nevertheless, to the extent that there are any documents in

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Defendants’ custody, control, or possession that identify one or

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more individuals who worked in the Calipatria Prison mailroom in

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July of 2004, the documents should be produced.

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Vallery’s Motion to Compel a response to request 32 is DENIED.

Otherwise,

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2.

Request for Production of Documents 33:

Set One

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Next, the Plaintiff requests documents involving any state

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tort claims actions and § 1983 civil rights actions that have been

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filed against each Defendant.

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at 10, ECF No. 86.)

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for public records that are equally available to him and because

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the request is overly broad.

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request 33 to include only actions for conduct of the sort alleged

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in the Second Amended Complaint; Plaintiff narrowed this request on

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February 9, 2011, yet the Defendants ignore the modification

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altogether.

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that he lacks access to the documents because he is indigent and

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incarcerated.

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Defendants refuse to provide him with identifying information that

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would help him find such records.

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a.

(Opp’n Mot. Compel Attach. #2 Ex. A,

The Defendants object because Plaintiff asks

(Id.)

Vallery limits the scope of

(Mot. Compel 13, 35, 39, ECF No. 69.)

(Id. at 13.)

He contends

Also, Vallery represents that

(Id.)

Overbreadth

Despite Plaintiff’s narrowing of the request to actions for

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conduct similar to that alleged in this lawsuit, the Defendants

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continue to argue that request 33 seeks irrelevant information

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08cv00095 DMS(RBB)

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because it seeks information about unrelated claims.

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Compel 2, ECF No. 86.)

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(Opp’n Mot.

This objection is OVERRULED.

The Defendants further object that the request is overly broad

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because it seeks attorney notes, deposition transcripts, court

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files, and other documents.

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in his Reply, in which he seeks “deposition testimony, admissions,

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and interrogatory responses from Defendants, Plaintiff’s and

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witnesses.”

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overbreadth objection is OVERRULED for documents relating to

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(Id.)

Plaintiff clarifies the scope

(Reply Mot. Compel 2, ECF No. 94.)

Defendants’

discovery generated during litigation.

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b.

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Equal access

Defendants also assert that Plaintiff has equal access to the

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material sought because lawsuits are matters of public record.

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(Id.)

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public record that are equally accessible to all parties.”

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Wm. Moore, et al., Moore’s Federal Practice, § 34.12[5][b], at 34-

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53 (3d ed. 2011) (footnote omitted).

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adverse party may be ordered when it would be excessively

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burdensome . . . for the requesting party to obtain the documents

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from the public source rather than from the opposing party.”

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(footnote omitted).

“A court may refuse to order production of documents of
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“However, production from the

Id.

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Vallery expressly states that he has inadequate access because

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his custody prevents him from obtaining the records on his own, and

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Defendants do not challenge his contention.

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No. 69); see Lal v. Felker, No. CIV S-07-2060 GEB EFB P, 2010 U.S.

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Dist. LEXIS 21046, at *9-10 (E.D. Cal. Feb. 10, 2010) (granting

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plaintiff’s motion to compel records contained in his central and

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medical files because defendants do not rebut plaintiff’s assertion

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(Mot. Compel 13, ECF

08cv00095 DMS(RBB)

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that he has inadequate access to the files).

The Plaintiff argues

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that “Defendants refuse to disclose identifying information which

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might enable Plaintiff to obtain said court documents.”

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Compel 13, ECF No. 69.)

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Robinson, 2011 U.S. Dist. LEXIS 60370, at *43-44 (denying pro se

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incarcerated plaintiff’s motion to compel complaints and case

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numbers of lawsuits filed against defendants for the same conduct,

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and noting that plaintiff could retain someone to retrieve the

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records where the defendants were not in possession, custody, or

There is contrary authority.

(Mot.

See

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control of responsive documents).

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have documents that are protected from disclosure because of the

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attorney-client privilege, attorney work product doctrine, or

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court-imposed protective order, the Defendants shall compile a

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privilege log identifying those documents, the privilege claimed,

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and sufficient facts for the Court to determine the basis of the

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privilege claim.

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(9th Cir. 2010) (amended); Fed. R. Civ. P. 26(b)(5)(A)(ii).

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If Defendants assert that they

See Perry v. Schwarzenegger, 591 F.3d 1147, 1153

Vallery’s Motion to Compel production of documents in response

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to request 33 is GRANTED, except to the extent that nonprivileged

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documents are not in Defendants’ custody, possession, or control.

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For those items, Plaintiff should attempt to obtain the publicly

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filed court documents himself.

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3.

Requests for Production of Documents 2, 3, and 4:

Set

Two

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Vallery asks for documents identifying the names of the

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correctional officers assigned to Calipatria’s C-Facility kitchen

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during the period between April and December 2004.

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Compel Attach. #2 Ex. B, at 17-18, ECF No. 86.)

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(Opp’n Mot.

Among other

08cv00095 DMS(RBB)

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objections, Defendants argue that the requests violate the Court’s

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scheduling order because they were served after the March 21, 2011

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deadline.

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but insists that it only applies to interrogatories, not requests

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for production of documents.

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(Id.)

In response, Vallery acknowledges the deadline

(Reply Mot. Compel 3, ECF No. 94.)

On March 28, 2011, Plaintiff served his second set of document

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requests on defense counsel, and counsel served Defendants’

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responses on April 27, 2011.

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Walters 2, ECF No. 86.)4

(Opp’n Mot. Compel Attach. #1 Decl.

This Court’s Case Management Conference

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Order Regulating Discovery and Other Pretrial Proceedings provides,

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“All interrogatories and document production requests must be

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served by March 21, 2011.”

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ECF No. 61.)

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documents was served one week beyond the Court-imposed deadline,

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and Plaintiff does not address the untimeliness.

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Compel 13-14, ECF No. 69.)

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(Case Management Conference Order 1-2,

Vallery’s second set of requests for production of

(See id.; Mot.

Despite his pro se status, Vallery is not entitled to any

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latitude for the untimeliness.

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856-57 (stating that pro se representation does not excuse a

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litigant from complying with court orders); Jourdan, 951 F.2d at

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109 (explaining that although courts should liberally construe pro

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se plaintiffs’ legal arguments, courts should strictly construe

See Fingerhut Corp., 86 F.3d at

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The date Vallery submitted the requests to prison
authorities constitutes the date Defendants were served. See
Schroeder v. McDonald, 55 F.3d 454, 459 (9th Cir. 1995) (quotation
and citations omitted); see also Faile v. Upjohn Co., 988 F.2d 985,
986, 988 (9th Cir. 1993), overruled on other grounds, McDowell v.
Calderon, 197 F.3d 1253 (9th Cir. 1999) (finding that an
incarcerated § 1983 pro se plaintiff served his discovery responses
at the time he submitted them to prison authorities for forwarding
to the party being served).
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their compliance with procedural requirements); see also Carter,

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784 F.2d at 1008-09 (noting that pro se plaintiffs must follow the

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rules of the court).

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responses to the second set of documents requests is DENIED as

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untimely.

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B.

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Accordingly, Plaintiff’s Motion to Compel

Requests for Admissions
The Defendants argue that Vallery’s Motion to Compel responses

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to the requests for admissions should be denied on timeliness

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grounds as well as on the merits.

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(See Opp’n Mot. Compel 3-6, ECF

No. 86.)

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1.

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Defendants Bell, Bourland, Brown, Dee, and Stratton argue that

Timeliness

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this Motion is untimely because it was filed nearly six months

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after Defendants’ responses were served.

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for admissions were served on December 21, 2010, and Defendants

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provided responses between January 6 to 20, 2011.

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Decl. Walters 2.)

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to meet and confer, Plaintiff then served amended requests for

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admissions on April 3, 2011.

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amended requests are identical to the original requests; defense

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counsel notified Vallery of the error on April 25, 2011, and

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Defendants did not respond to the amended requests.

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Compel 3, ECF No. 86; id. Attach. #1 Decl. Walters 3.)

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motion to compel must be filed within thirty days of service of the

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response, and Plaintiff has not served any additional requests for

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admission, the Motion to Compel is untimely by almost 180 days.5

(Id. at 3.)

The requests

(Id. Attach. #1

After exchanging several letters in an attempt

(Id.)

According to Defendants, the

(Opp’n Mot.
Because any

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Because Plaintiff’s Motion to Compel was filed nunc pro
tunc to May 25, 2011, it is unclear how the Defendants calculate a
180-day delay based on the record before the Court. (See Mot.
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08cv00095 DMS(RBB)

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(Id. Attach. #1 Decl. Walters 3-4 (citing Case Management

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Conference Order 1-2, ECF No. 61).)

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In his Reply, Vallery insists that his April 3, 2011 amended

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requests for admissions differ from the original requests because

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they contain additional admissions marked, “AMENDED.”

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Compel 3-4, ECF No. 94.)

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error, served April 25, 2011, constitutes their response to the

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amended request.”

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compel would be due thirty days later, and his May 25, 2011 Motion

(Reply Mot.

“Defendants’ erroneous notification of

(Id. at 4.)

Plaintiff urges that any motion to

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is therefore timely.

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the parties were attempting to meet and confer during the time

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between Defendants’ January 20, 2011 response and the April 3, 2011

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amended requests.

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a.

(Id.)

Furthermore, Plaintiff explains that

(Id.)

Defendants Brown, Bell, Bourland, and Stratton

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Plaintiff asks for an order compelling Brown to respond to

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requests for admissions 6, 8, and 12, Bell to respond to requests 4

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and 7, Bourland to respond to request 5, and Stratton to answer

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requests 4 and 5.

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(Mot. Compel 16-18, 21-23, ECF No. 69.)

This Court issued an order regulating discovery, which
provides as follows:
All discovery shall be completed by all parties on
or before May 23, 2011; this includes discovery ordered
as a result of a discovery motion. All motions for
discovery shall be filed no later than thirty (30) days
following the date upon which the event giving rise to
the discovery dispute occurred. For oral discovery, the
event giving rise to the dispute is the completion of the
transcript of the affected portion of the deposition.
For written discovery, the event giving rise to the
discovery dispute is the service of the response.

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27
28
Compel 1, ECF No. 69.)
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(Case Management Conference Order 1-2, ECF No. 61.)

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Defendants recently requested that the scheduling order be

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modified, the discovery-related deadlines that had already elapsed

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were unaffected [ECF Nos. 97, 101].

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Although the

Vallery’s Motion to Compel is untimely as to these Defendants

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on two grounds.

First, the Motion to Compel was filed nunc pro

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tunc to May 25, 2011, which is two days beyond the May 23, 2011

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discovery cutoff date outlined in the Court’s Case Management

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Order.

Second, Plaintiff’s Motion was filed more than thirty days

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following the service of Defendants’ responses to the requests for

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admissions.

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their responses to Vallery’s initial requests for admissions on

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January 6 (Brown and Bourland), 10 (Stratton), and 20 (Bell), 2011.

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(Opp’n Mot. Compel Attach. #1 Decl. Walters 2, ECF No. 86.)

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very latest, Plaintiff had until February 22, 2011, to file a

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motion, which is thirty days after he received the last response

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from Bell on January 20, 2011.

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(stating that when computing time, if the last day is a weekend or

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legal holiday, the period continues to run until the next day);

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S.D. Cal. Civ. R. 7.1(c) (adopting the provisions of Federal Rule

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of Civil Procedure 6).

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moving to compel Responses from Defendants Brown and Bourland, and

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three days before the deadline to compel from Defendant Stratton,

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Plaintiff sent defense counsel a “Reply to Defendants’ Response to

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Request for Admissions” in an attempt to meet and confer; Vallery

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did not receive a response until March 18, 2011.

Defendants Brown, Bell, Bourland, and Stratton served

At the

See Fed. R. Civ. P. 6(a)(1)

On February 9, 2011, the deadline for

(Mot. Compel 40-

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49, ECF No. 69; Opp’n Mot. Compel Attach. #1 Decl. Walters 2-3, ECF

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No. 86.)6

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Although the Plaintiff properly attempted to confer with

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defense counsel prior to filing a motion to compel, his attempt was

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late, and any delay by counsel in responding does not suspend the

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thirty-day time limit for filing motions to compel.

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R. 26.1(a); In re Miles, No. C 10-4725 SBA, 2011 U.S. Dist. LEXIS

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97371, at *4 (N.D. Cal. Aug. 30, 2011) (“Self-representation is not

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an excuse for non-compliance with court rules.”)

See S.D. Cal.

Vallery could

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have filed a motion before the various February 2011 deadlines and

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explained his attempt to comply with the meet and confer

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requirement.

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(“Although pro se, he is expected to abide by the rules of the

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court in which he litigates.”).

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to extend the thirty-day deadline for filing a motion to compel so

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that the parties could adequately confer.

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See S.D. Cal. R. 26.1(b); Carter, 784 F.2d at 1008-09

Plaintiff also could have sought

Instead, Vallery allowed the various February 2011 deadlines

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to elapse while he awaited for a letter from defense counsel, which

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did not arrive until March 18, 2011; Plaintiff responded to defense

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counsel’s letter on March 30, 2011.

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Decl. Walters 2-3, ECF No. 86.)

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requests for admissions as well as another meet and confer letter

(Opp’n Mot. Compel Attach. #1

Vallery then served amended

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27
28

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The proof of service for the letter was dated February 9,
2011, yet defense counsel submits that he did not receive it until
March 14, 2011. (Mot. Compel 49, ECF No. 69; Opp’n Mot. Compel
Attach. #1 Decl. Walters 2, ECF No. 86.) Counsel claims that the
letter was mailed from the prison on February 9, but was returned
to the prison due to postage issues before it was mailed again.
(Mot. Compel 55, ECF No. 69.) The Court treats Vallery’s February
9, 2011 declaration of service by mail as the date he gave the
discovery reply to prison authorities and therefore served
Defendants. See Faile, 988 F.2d at 986, 988.
14

08cv00095 DMS(RBB)

1

to Defendants on April 3, 2011.

(Id. at 3; see id. Attach. #4 Ex.

2

H, at 62-73; see also Mot. Compel 57-60, ECF No. 69.)

3

requests for admissions to Brown, Bell, Bourland, and Stratton are

4

identical to the requests Plaintiff refers to as his “Amended

5

Requests for Admissions” to Brown, Bell, Bourland, and Stratton.

6

(Compare Opp’n Mot. Compel Attach. #3 Ex. C, at 20-45, ECF No. 86,

7

with id. Attach. #4 Ex. H, at 62-73.)

8

requests for admissions as “Amended Requests for Admissions” in an

9

attempt to avoid being untimely.

The original

Plaintiff cannot restate his

10

Thus, the Motion to Compel responses to the requests for

11

admissions from Brown, Bell, Bourland, and Stratton filed nunc pro

12

tunc to May 25, 2011, was approximately three months late.

13

b.

14

Defendant Dee

The Motion to Compel responses from Defendant Dee to requests

15

for admissions 5, 12, 15, and 16 is untimely on the same two

16

grounds.

17

filed beyond the May 23, 2011 discovery cutoff date.

18

Management Conference Order 1-2, ECF No. 61; Mot. Compel 1, ECF No.

19

69.)

20

after the service of Defendant Dee’s response.

21

Management Conference Order 1-2, ECF No. 61.)

22

her responses to the original requests for admissions on January

23

12, 2011, any motion to compel must have been filed within thirty

24

days, or by February 11, 2011.

25

Walters 2, ECF No. 86).

26

confer letter to defense counsel on February 9, 2011, but did not

27

receive a response until March 18, 2011.

28

February 9, 2011 letter, Vallery appears to amend request for

(Mot. Compel 18-21, ECF No. 69.)

First, the Motion was
(See Case

Second, Plaintiff’s Motion was filed more than thirty days
(See Case
Because Dee served

(Opp’n Mot. Compel Attach. #1 Decl.

As outlined above, Vallery sent a meet and

15

(Id. at 2-3.)

In the

08cv00095 DMS(RBB)

1

admission 17 to Dee by dividing it into requests 17(a) and 17(b).

2

(Mot. Compel 45, ECF No. 69.)

3

The thirty-day deadline was not suspended while Vallery

4

awaited a response from counsel to Plaintiff’s meet and confer

5

letter.

6

filed a motion to compel describing his attempt to confer with

7

Dee’s attorney, or he could have sought to continue the deadline.

8

The Motion to Compel responses from Dee was filed approximately

9

three and one-half months late.

10

Before the February 11, 2011 deadline, Vallery could have

The result is the same even if Plaintiff believed he properly

11

awaited Dee’s response to requests 17(a) and 17(b) before seeking

12

Court intervention because Vallery is not moving to compel Dee to

13

respond to request for admission 17.

14

No. 69 (seeking responses from Dee to the original requests for

15

admissions numbers 5, 12, 15, and 16 only).

16

Dee amended her response to initial request for admission 8 on

17

March 18, 2011, that request is also not at issue in this Motion to

18

Compel.

19

86.)

(See Mot. Compel 18-21, ECF

Furthermore, although

(Id.; Opp’n Mot. Compel Attach. #3 Ex. E, at 52, ECF No.

20

On April 3, 2011, Plaintiff served Dee amended request 17, and

21

included an additional request 19, to which Dee provided responses.

22

(Opp’n Mot. Compel Attach. #4 Ex. G, at 59-61, ECF No. 86; see id.

23

Ex. H, at 70.)

24

Dee differ from the original requests to Dee.

25

Compel Attach. #4 Ex. H, at 68-70, ECF No. 86, with id. Attach #3

26

Ex. C, at 34-40.)

27

to the amended requests for admissions.

28

ECF No. 69.)

The amended requests for admissions to Defendant
(Compare Opp’n Mot.

Even so, Vallery is not seeking answers from Dee
(See Mot. Compel 18-21,

For all of these reasons, Plaintiff’s Motion to

16

08cv00095 DMS(RBB)

1

Compel Dee to provide further responses to the original requests is

2

also untimely.

3

As discussed above, Vallery’s representation that his amended

4

requests for admissions differ from the original requests is

5

without merit.

6

is not persuaded that Plaintiff’s delay is excused by his attempt

7

to meet and confer.

8

for the untimely Motion or provided legitimate reasons for his

9

approximate three-month delay.

(See Reply 3-4, ECF No. 94.)

(See id.)

Similarly, the Court

Vallery has not established cause

The Motion to Compel all five

10

Defendants to respond to the requests for admissions is DENIED as

11

untimely.

12

Cir. 2010) (finding that the district court did not abuse its

13

discretion when denying a motion to compel because it was untimely

14

by more than six months and failed to establish good cause to

15

excuse the delay); see also Cone, 2008 U.S. Dist. LEXIS 17489, at

16

*4 (explaining that plaintiffs who represent themselves are

17

expected to follow all procedural rules).

18

C.

See Farier v. City of Mesa, 384 F. App’x 683, 684 (9th

Interrogatories

19

Although Plaintiff moves to compel answers to his original

20

interrogatories served February 9, 2011, as well as his amended

21

interrogatories served May 9, 2011,7 Vallery does not distinguish

22

between the two sets of discovery in the Motion to Compel.

(See

23
24
25
26
27
28

7

Defendants’ service is determined by the date that
Plaintiff submitted the interrogatories to prison authorities. See
Schroeder, 55 F.3d at 459 (quoting Faile, 988 F.2d at 988). The
proofs of service for the interrogatories and amended
interrogatories are dated February 9 and May 8, 2011, respectively.
(Mot. Compel 76, ECF No. 69; Opp’n Mot. Compel Attach. #1 Decl.
Walters 3-4, ECF No. 86.) Thus, February 9 and May 9, 2011, the
Monday following Sunday, May 8, 2011, constitute the dates on which
the Defendants were served. Fed. R. Civ. P. 6(a)(1)(C); see S.D.
Cal. Civ. R. 7.1(c).
17

08cv00095 DMS(RBB)

1

Mot. Compel 24-31, ECF No. 69; Opp’n Mot. Compel 6, ECF No. 86

2

(clarifying that when Vallery refers to his “5-7-11 Rule 37

3

pleading,” he is referring to the amended interrogatories.)

4

Plaintiff also seeks answers to the “additional interrogatories” to

5

Defendant Brown served along with the amended interrogatories on

6

May 9, 2011.

7

consider the original, amended, and additional interrogatories

8

separately.

9

1.

10

(Mot. Compel 30-31, ECF No. 69.)

The Court will

Original Interrogatories

Plaintiff asks the Court to order Defendants Dee, Bell,

11

Bourland, and Stratton to respond to interrogatories 16, 10, 9, and

12

8, respectively.

13

each Defendant would be willing to take a polygraph examination.

14

(Opp’n Mot. Compel Attach. #4 Ex. I, at 79, 85, 91-92, 108, ECF No.

15

86.)

(Id. at 24-31.)

The interrogatories ask whether

16

Defendants object that the discovery is argumentative, seeks

17

irrelevant information, and should be excluded under Federal Rule

18

of Evidence 403.

19

examination evidence is generally inadmissible, and none of the

20

exceptions apply.

21

Supp. 1199, 1200-01 (C.D. Cal. 1998) (“Cordoba II”)).)

22

to Defendants, the interrogatories are also inadmissible because

23

the probative value is substantially outweighed by prejudicial

24

impact.

25

F.3d 720, 725 (9th Cir. 2000)).)

26

(Opp’n Mot. Compel 6, ECF No. 86.)

Polygraph

(Id. (citing United States v. Cordoba, 991 F.
According

(Id. (citing United States v. Benavidez-Benavidez, 217

Vallery counters that polygraph evidence is admissible if it

27

satisfies the standards regarding the admissibility of expert

28

evidence set forth in Federal Rule of Evidence 702.

18

(Reply Mot.

08cv00095 DMS(RBB)

1

Compel 7-8, ECF No. 94.)

Further, the interrogatories seek

2

relevant information because an unwillingness to take the polygraph

3

test would bear on each Defendant’s credibility.

4

26-27, 29-30, ECF No. 69 (arguing that refusal to take a polygraph

5

would suggest that the Defendant is not being “forthcoming” or has

6

something to hide).)

7

relating to the Defendants’ credibility is “strong,” while undue

8

prejudice is “virtually nonexistent.”

9

Civ. P. 403).)

(See Mot. Compel

Plaintiff also maintains that the relevance

(Id. at 26 (citing Fed. R.

10

With the exception of interrogatory 17 to Brown, Vallery

11

expressly moves to compel answers to each interrogatory inquiring

12

about each Defendant’s willingness to submit to polygraph

13

examining.

14

as well as additional interrogatories 18 through 23 served on May

15

9, 2011).)

16

17 to Brown is not objectionable for the same reasons that the

17

polygraph-related interrogatories to the other Defendants are not

18

objectionable.

19

should not give pro se plaintiffs latitude in complying with

20

procedural requirements, courts must construe self-represented

21

litigants’ pleadings liberally to give them any benefit of the

22

doubt.

23

Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988).

24

liberal construction is “particularly important in civil rights

25

cases.”

26

The Court interprets Vallery’s Motion to include interrogatory 17

27

to Defendant Brown, which asks Brown if he would be willing to take

28

a polygraph examination.

(See id. at 24 (asking Brown to answer interrogatory 6

Yet, in his Reply, Plaintiff urges that interrogatory

(See Reply 8-9, ECF No. 94.)

Although courts

Jourdan, 951 F.2d at 109; Karim-Panahi v. Los Angeles
This rule of

Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992).

19

08cv00095 DMS(RBB)

1

At issue is whether interrogatories 8, 9, 10, 16, and 17 could

2

reasonably lead to the discovery of admissible evidence.

Fed. R.

3

Civ. P. 26(b)(1).

4

admissibility of polygraph evidence has been in flux since the

5

Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals,

6

Inc., 509 U.S. 579 (1993).

7

polygraph evidence was per se inadmissible.

8

F.2d 1389, 1395 (9th Cir. 1986).

9

Cordoba, 104 F.3d 225 (9th Cir. 1997) (“Cordoba I”), the Ninth

Ninth Circuit jurisprudence concerning the

Prior to Daubert, unstipulated
Brown v. Darcy, 783

Then, in United States v.

10

Circuit acknowledged that although Daubert had implicitly overruled

11

the bright line rule in Brown barring polygraph evidence, such

12

evidence remained suspect.

13

must therefore engage in a particularized factual inquiry into the

14

scientific validity of polygraph evidence.

15

remand, the district court conducted a Daubert hearing and excluded

16

the evidence under Federal Rules of Evidence 702 and 403.

17

II, 991 F. Supp. at 1208.

18

1053 (9th Cir. 1999) (“Cordoba III”), the Ninth Circuit affirmed

19

the district court’s ruling in Cordoba II.

20

recently described its Cordoba decisions as confirming that

21

district courts have wide discretion in excluding polygraph

22

evidence.

23

Cordoba I, 104 F.3d at 228.

Courts

Id. at 228, 230.

On

Cordoba

In United States v. Cordoba, 194 F.3d

The appellate court

Benavidez-Benavidez, 217 F.3d at 724.

Although Vallery solicits responses to the interrogatories

24

under Federal Rules of Evidence 702 and 403, district courts are

25

not required to conduct both analyses.

26

stage in the litigation, neither party has requested a Daubert

27

hearing to determine the scientific validity of the polygraph

28

evidence; as a result, the exclusion of expert testimony under Rule

20

See id. at 724-25.

At this

08cv00095 DMS(RBB)

1

702 is not appropriate.

See Ramirez-Robles, 386 F.3d at 1245;

2

Dixon v. City of Coeur D’Alene, No. 2:10-cv-00078-LMB, 2010 U.S.

3

Dist. LEXIS 124393, at *4 (D. Idaho Nov. 23, 2010).

4

the Court will consider whether the interrogatories could lead to

5

the discovery of admissible evidence under Federal Rule of Evidence

6

403 only.

7

plaintiff’s motion under Rule 403 only because neither party

8

requested a Daubert hearing); see Ramirez-Robles, 386 F.3d at 1246

9

(“The relevant question is whether the record supports the

Consequently,

Dixon, 2010 U.S. Dist. LEXIS 124393, at *4 (analyzing

10

exclusion of the evidence under Rule 403.”); Benavidez-Benavidez,

11

217 F.3d at 724-25 (explaining that Rule 403 alone provides courts

12

with ample opportunity for excluding polygraph evidence).

13
14

a.

Probative value versus prejudicial effect

Courts may exclude polygraph evidence under Rule 403 of the

15

Federal Rules of Evidence if the probative value is “substantially

16

outweighed by the danger of unfair prejudice, confusion of the

17

issues, or misleading the jury.”

18

This weighing process is primarily for the district courts to

19

perform.

20

exclude evidence . . . because the considerations arising under

21

Rule 403 are ‘susceptible only to case-by-case determinations,

22

requiring examination of the surrounding facts, circumstances, and

23

issues.’”

24

Inc., 945 F.2d 269, 272 (9th Cir. 1991) (quotation omitted).

Id. at 1063.

Cordoba III, 194 F.3d at 1062-63.

“Trial judges have wide discretion to

R.B. Matthews, Inc. v. Transamerica Transp. Servs.,

25

Courts have held that lie detector evidence has “powerful

26

persuasive value” and a “misleading reputation as a truth teller.”

27

Ramirez-Robles, 386 F.3d at 1245; United States v. Marshall, 526

28

F.2d 1349, 1360 (9th Cir. 1975).

This evidence is disfavored

21

08cv00095 DMS(RBB)

1

because it has the potential to replace a jury’s independent

2

credibility determination.

3

667, 671 (9th Cir. 1979) (noting that credibility is for the jury,

4

and the jury is the lie detector in the courtroom); Dixon, 2010

5

U.S. Dist. LEXIS 124393, at *10 (determining that evidence of the

6

mere fact of the examinations, even without the disclosure of

7

results, is prejudicial).

8

be admissible if it is introduced for a limited purpose that is

9

unrelated to the substantive correctness of the results of the

10

polygraph examination.”

11

See United States v. Awkard, 597 F.2d

Nonetheless, “[p]olygraph evidence might

1261 (9th Cir. 1989).

12

United States v. Miller, 874 F.2d 1255,

Here, Vallery seeks answers to interrogatories asking whether

13

each Defendant would be willing to submit to polygraph examining

14

because the answers would bear on the Defendants’ credibility.

15

general, the use of polygraph evidence merely to bolster an

16

individual’s credibility is “highly prejudicial.”

17

Sherlin, 67 F.3d 1208, 1217 (6th Cir. 1995); see Cordoba III, 194

18

F.3d at 1063.

19

relating to an individual’s willingness to submit to polygraph

20

testing should be excluded.

21

1346, 1349 (11th Cir. 1989); Ortega v. Clark, No. 2:08-cv-1657-KJM

22

TJB, 2011 U.S. Dist. LEXIS 21333, at *60 (E.D. Cal. Mar. 3, 2011)

23

(explaining the inadmissibility of such evidence in criminal

24

proceedings); United States v. Koebele, No. CR 07-2015-MWB, 2008

25

U.S. Dist. LEXIS 519, at *13 (N.D. Iowa Jan. 3, 2008) (doubting

26

that a criminal defendant’s willingness or unwillingness to take a

27

polygraph test has any probative value); see Jones v. Geneva

28

Pharmaceuticals, Inc., 132 F. App’x 772, 776 (10th Cir. 2005);

In

United States v.

Many courts have therefore determined that evidence

United States v. Vigliatura, 878 F.2d

22

08cv00095 DMS(RBB)

1

United States v. Russon, 796 F.2d 1443, 1453 (11th Cir. 1986);

2

United States v. Bursten, 560 F.2d 779, 785-86 (7th Cir. 1977);

3

Baker v. Holman, No. 1:09CV36-A-D, 2011 U.S. Dist. LEXIS 63108, at

4

*19, 29-30 (N.D. Miss. June 13, 2011) (excluding the evidence under

5

Rule 403).

6

defendant was willing or unwilling to take a polygraph examination

7

would likely be based on an improper emotional response, making

8

such evidence unfairly prejudicial.”

9

LEXIS 519, at *13-14.

10

“[A]ny weight jurors might give to evidence that a

Koebele, 2008 U.S. Dist.

Vallery merely asks whether each Defendant would be willing to

11

take a lie detector test.

12

examination administered, there is no indication that Defendants

13

will ever submit to actual polygraph testing.

14

United States Capitol Police Bd., 216 F.R.D. 153, 159-60 (D.D.C.

15

2003) (granting plaintiff’s motion to compel in part and ordering

16

disclosure of information surrounding the employees who had been

17

ordered to take a polygraph test).

18

likelihood that the evidence would ultimately be admissible, the

19

probative value of the information is substantially outweighed by

20

the danger of unfair prejudice.

21

F.3d 904, 908-09 (7th Cir. 2010) (finding that evidence was only

22

marginally probative of the individual’s credibility because no

23

test had even been taken, and there was a real potential for

24

confusing the issues and misleading the jury); United States v.

25

Harris, 9 F.3d 493, 502 (6th Cir. 1993) (holding that a defendant’s

26

willingness to take a polygraph is only “marginally relevant” to

27

credibility); Wolfel, 823 F.2d at 975.

28

interrogatories 8, 9, 10, 16, and 17 are unlikely to lead to the

Not only has there not been any

Contra Waters v.

When contemplating the

See United States v. Dinga, 609

23

As a result,

08cv00095 DMS(RBB)

1

discovery of admissible evidence, and Plaintiff’s Motion to Compel

2

responses is DENIED.

3

2.

Amended Interrogatories

4

The amended interrogatories that Vallery seeks answers to are

5

numbers 6 to Brown, 10 to Dee, 9 and 9(a) to Bell, 7 and 7(a) to

6

Bourland, and 4 and 4(a) to Stratton.

7

69; Reply 8, 10, ECF No. 94.)

8

and substantive bases.

9

a.

10

(Mot. Compel 24-30, ECF No.

The Defendants object on timeliness

(Opp’n Mot. Compel 7, ECF No. 86.)

Timeliness

Defendants allege that Plaintiff’s amended interrogatories,

11

which include both amended and additional interrogatories, are

12

untimely because they were served beyond the March 21, 2011

13

deadline to serve interrogatories.

14

at 61, ECF No. 86.)

15

(Id.; see id. Attach. #4 Ex. J,

The Court’s order regulating discovery specifies that all

16

interrogatories must be served by March 21, 2011.

17

Conference Order 2, ECF No. 61.)

18

scheduling order occurred after the discovery cutoff had passed,

19

and only affected the trial-related deadlines [ECF Nos. 97, 99,

20

101].

21

until May 9, 2011, forty-nine days late, the interrogatories were

22

untimely, and the Motion to Compel responses should be denied on

23

that basis.

24

(Case Management

The only request to modify the

Because Vallery did not serve his amended interrogatories

The Plaintiff advances several arguments in an attempt to

25

overcome the defect.

First, Vallery submits that some of the

26

questions included in the amended interrogatories are merely

27

earlier interrogatories rewritten to secure responses.

28

ECF No. 94 (stating that numbers 6, 10, 9, 9(a), 7, and 4, 4(a) to

24

(Reply 8,

08cv00095 DMS(RBB)

1

Brown, Dee, Bell, Bourland, and Stratton, respectively, were merely

2

rewritten).)

3

interrogatories served on May 9, 2011, Vallery modified original

4

interrogatories 4, 6, 7, 9, and 10 (timely served on February 9,

5

2011), and drafted additional interrogatories 4(a), 7(a), and 9(a).

6

(Compare Mot. Compel 63, 66, 68, 70, 74, ECF No. 69, with Opp’n

7

Mot. Compel Attach. #4 Ex. I, at 45, 77, 84-85, 91, 107, ECF No.

8

86; see also Mot. Compel 68, 70, 74, ECF No. 69.)

9

original interrogatory 6 to Brown asks, “Were you put on notice

This is an over-simplification.

In the amended

For example,

10

that Plaintiff posed a threat of any kind?

11

identify all documents that contain information which supports your

12

response.”

13

86.”)

14

grounds.

15

“In an attempt to cure any vagueness and ambiguity, Plaintiff

16

amends number six [to Brown] as follows:

17

incidents set forth in the second amended complaint and prior to

18

your searches of Plaintiff, were you put on notice by another

19

officer(s) of facts justifying the searches?”

20

No. 69 (emphasis added).)

21

Please include and

(Opp’n Mot. Compel Attach. #4 Ex. I, at 45, ECF No.

Defendant Brown objected on vague, ambiguous, and compound
(Id.)

In his amended interrogatories, Vallery states,

On the day of the

(Mot. Compel 63, ECF

Second, Plaintiff alleges that interrogatories 8, 9, 10, 16,

22

and 17, involving polygraph examinations, were actually part of the

23

original, timely interrogatories.

24

argument misses the point because at issue is the timeliness of

25

amended interrogatories 6, 10, 9, 9(a), 7, 7(a), and 4, and 4(a),

26

not 8, 9, 10, 16 and 17.

27

interrogatories included in the May 9, 2011 discovery, numbers 1

28

and 7 to Stratton, and 17 to Brown, are restated original

(Reply 9, ECF No. 94.)

This

Third, Plaintiff maintains that the other

25

08cv00095 DMS(RBB)

1

interrogatories.

2

not moving to compel original interrogatories 1 and 7 to Stratton,

3

and as addressed above, the Court construed Vallery’s briefs

4

liberally and has already considered interrogatory 17 to Brown.

5

(Id.)

This, too, is inconsequential.

Vallery is

Self-represented litigants are not excused from complying with

6

a court’s orders, and Plaintiff’s Motion to Compel responses to

7

amended interrogatories 4, 4(a), 6, 7, 7(a), 9, 9(a), and 10 is

8

DENIED.

9

3.

10

Additional Interrogatories to Brown

Lastly, the Plaintiff moves to compel answers to “additional

11

interrogatories for Defendant Brown,” which appear to be amended

12

interrogatories 18 through 23 to Brown served on May 9, 2011.

13

(Mot. Compel 30-31, 64-65, ECF No. 69; Reply 11, ECF No. 94; see

14

also Opp’n Mot. Compel 8, ECF No. 86.)

15

inquires whether Sergeant Dee, who was Brown’s supervisor at the

16

time, asked Brown about the strip search after Vallery had left

17

Brown’s presence.

18

what, if anything, Sergeant Dee asked Brown about the search, and

19

how Brown responded.

20

inquires whether, after Brown strip searched Vallery on April 17,

21

2004, Dee said or implied that Brown’s behavior toward Vallery was

22

unacceptable.

23

was present in the “MTA’s office” after the April 17th strip

24

search, in addition to Sergeant Dee.

25

interrogatory 22 solicits the names of the officers present on

26

April 17, 2004 to assist Brown as he escorted Vallery to the MTA’s

27

office.

(Id.)

Additional interrogatory 18

(Mot. Compel 64-65, ECF No. 69.)

(Id.)

(Id. at 65.)

Number 19 asks

Additional interrogatory 20

Next, number 21 requests what other officer

(Id.)

Additional

Finally, in number 23, Plaintiff asks Brown what

28

26

08cv00095 DMS(RBB)

1

officers were present during and immediately after Brown’s April

2

15, 2004 search of Vallery, other than Defendant Dee.

3

a.

4

(Id.)

Timeliness

On May 17, 2011, after receiving the additional

5

interrogatories, Defendant Brown served Plaintiff objections to the

6

additional interrogatories and mailed Vallery a letter explaining

7

the objections.

8

No. 86 (citing id. Attach. #4 Ex. J, at 111-12); see Mot. Compel

9

77, ECF No. 69.)

(Opp’n Mot. Compel Attach. #1 Decl. Walters 4, ECF

The Defendant argues that these interrogatories

10

similarly violate the March 21, 2011 deadline for serving

11

interrogatories and document production requests.

12

Compel 8, ECF No. 86; see Mot. Compel 77, ECF No. 69; see also Case

13

Management Conference Order 2, ECF No. 61.)

14

(Opp’n Mot.

Vallery argues, “Aside from timeliness, Defendants lodge no

15

specific objections to [additional] interrogatories numbers 18-23

16

(for Brown).”

17

deadline for serving interrogatories; he then construes the

18

Defendant’s timeliness objection as relating only to the May 23,

19

2011 discovery cutoff.

20

unable to respond to the additional interrogatories in the two week

21

time period between the May 9, 2011 service and the May 23, 2011

22

discovery cutoff, Brown should have sought an extension of the May

23

23, 2011 deadline.

24

77 (explaining to Vallery that the discovery cutoff is May 23,

25

2011, but responses would not be due until June).)

26

further asserts that any delay was caused by his good faith attempt

27

to resolve the dispute with counsel.

28

94.)

(Reply 11, ECF No. 94.)

Plaintiff ignores the

Vallery alleges that if Defendant was

(Mot. Compel 30-31, ECF No. 69; see also id. at

Plaintiff

(Id. at 31; Reply 11, ECF No.

Also, discovery proceedings were delayed for one month due to

27

08cv00095 DMS(RBB)

1

the prison’s delay in delivering Vallery’s original interrogatories

2

dated February 9, 2011, to Brown.

3

Reply 11, ECF No. 94.)

4

mailing problems, he has filed a Motion to Appoint Counsel, which

5

is still pending.

6

No. 94.)8

7

(Mot. Compel 31, ECF No. 69;

The Plaintiff argues that to address the

(Mot. Compel 31, ECF No. 69; see Reply 11, ECF

Because Vallery served additional interrogatories 18 through

8

23 on May 9, 2011, far beyond the March 21, 2011 deadline for

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serving interrogatories, the discovery is untimely.

Plaintiff’s

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Motion to Compel Brown to respond to additional interrogatories 18

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through 23 is DENIED.

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IV.

CONCLUSION

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Subject to a protective order, the Plaintiff’s Motion is

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GRANTED in part and DENIED in part for the reasons set forth above.

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IT IS HEREBY ORDERED:

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1.

Plaintiff’s Motion to Compel a response to document

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request numbers 32 in set one, and 2, 3, and 4 in set

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two, is DENIED, except to the extent outline above.

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Motion to Compel a response to document request number 33

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in set one is GRANTED as explained.

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Brown to respond to requests for admission 6, 8, and 12;

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Bell to respond to requests 4 and 7; Bourland to respond

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to request 5; Stratton to respond to requests 4 and 5;

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and Dee to respond to requests 5, 12, 15, and 16; is

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DENIED.

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February 9 interrogatories (8, 9, 10, 16, and 17) and May

The

The Motion to Compel

Vallery’s Motion to Compel answers to his

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8

Since the filing of his Motion to Compel, Vallery’s Motion
for Appointment of Counsel has been denied [ECF No. 74].
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08cv00095 DMS(RBB)

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9, 2011 amended (6, 9, 9(a), 7, 7(a), 4, and 4(a)) and

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additional interrogatories (18-23) is DENIED.

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2.

The hearing on Defendants’ Motion for Summary Judgment is

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currently set for November 21, 2011, at 10:00 a.m.

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Plaintiff may file one supplemental opposition that is

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limited to arguments based on the evidence produced as a

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result of this Motion to Compel or Plaintiff’s separate

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Motion for Order of Disclosure and In Camera Review.

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Vallery may file the comprehensive supplemental brief by

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November 4, 2011.

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4.

The Defendants may file a reply to Plaintiff’s Opposition

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[ECF No. 79] and any supplemental opposition by November

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11, 2011.

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DATE: October 6, 2011

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cc:

_____________________________
RUBEN B. BROOKS
United States Magistrate Judge

Judge Sabraw
All Parties of Record

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K:\COMMON\BROOKS\CASES\1983\PRISONER\VALLERY095\Order re Mot. Compel2.wpd

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08cv00095 DMS(RBB)