Hupp v. San Diego County District Attorney et al

Filing 259

ORDER: (1) Denying 154 Motion to Compel Discovery from San Diego County, James Patrick Romo, and Peter Myers; (2) Denying as Moot 160 Motion for Protective Order on Behalf of Defendants County of San Diego, James Romo and Peter Myers. Signed by Magistrate Judge Ruben B. Brooks on 6/3/2014. (All non-registered users served via U.S. Mail Service)(srm)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PAUL HUPP, 12 Plaintiff, 13 14 v. 15 16 17 SAN DIEGO COUNTY, SAN DIEGO POLICE DEPARTMENT, et al., 18 19 Defendants. Civil No. 12cv0492 GPC(RBB) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ORDER (1) DENYING MOTION TO COMPEL DISCOVERY FROM SAN DIEGO COUNTY, JAMES PATRICK ROMO, AND PETER MYERS [ECF NO. 154]; AND (2) DENYING AS MOOT MOTION FOR PROTECTIVE ORDER ON BEHALF OF DEFENDANTS COUNTY OF SAN DIEGO, JAMES ROMO AND PETER MYERS [160] 20 Plaintiff Paul Hupp’s Motion to Compel Discovery on San Diego 21 County, James Patrick Romo and Peter Myers [ECF No. 154] (“Motion 22 to Compel”) was filed nunc pro tunc to September 5, 2013. 23 Defendants filed their response in opposition [ECF No. 172], and 24 Hupp filed a reply [ECF No. 185]. 25 On September 27, 2013, Defendants San Diego County, James Romo 26 and Peter Myers filed a Motion for Protective order [ECF No. 160]. 27 Plaintiff opposes the motion [ECF No. 169]. Defendants filed a 28 reply in support of the motion [ECF No. 177]. 1 12cv0492 GPC(RBB) 1 The hearing on the motions was set for October 28, 2013. 2 Court determined the matters to be suitable for resolution without 3 oral argument, submitted the motions on the parties’ papers 4 pursuant to the Local Civil Rule 7.1(d), and vacated the motion 5 hearing [ECF No. 181]. 6 Motion to Compel is DENIED, and Defendants’ Motion for Protective 7 Order is DENIED as moot. 8 For the following reasons, Plaintiff’s I. 9 The FACTUAL BACKGROUND Plaintiff Paul Hupp, proceeding pro se, commenced this action 10 on February 28, 2012, pursuant to 42 U.S.C. § 1983. (Compl. 1, ECF 11 No. 1.) 12 28, 2012 [ECF No. 64], naming as Defendants San Diego County,1 City 13 of San Diego, City of Beaumont,2 James Patrick Romo,3 Raymond 14 Wetzel, William Kiernan,4 Peter Myers,5 and Joseph Cargel. 15 Am. Compl. 1, ECF No. 64.) 16 of court charges and conviction in San Diego Superior Court in 17 2011. 18 // 19 // Plaintiff’s Third Amended Complaint was filed on August (Third Hupp’s action arises from his contempt (See id. at 4-5, 7-8.) 20 21 22 1 Plaintiff’s causes of action against the County are based on the allegations against the San Diego District Attorney’s Office, San Diego County Office of Assigned Counsel, and the San Diego Sheriff’s Department. (Third Am. Compl. 2, ECF No. 64.) 23 2 24 25 Defendant City of Beaumont was dismissed from this case on December 10, 2012 [ECF No. 105]. 3 Defendant Romo was dismissed from the case on January 9, 2014 [ECF No. 221]. 26 4 27 28 Defendant Kiernan was dismissed from the case on December 16, 2013 [ECF No. 210]. 5 Defendant Myers was dismissed from the case on January 30, 2014 [ECF No. 228]. 2 12cv0492 GPC(RBB) Plaintiff alleges that in November 2010, Jeffrey Freedman6 1 2 obtained a three-year restraining order against Hupp in San Diego 3 Superior Court. 4 contempt charges against Hupp for sending letters to Freedman in 5 violation of the restraining order. 6 Kiernan, an attorney from the San Diego County Office of the 7 Assigned Counsel, was appointed to represent Hupp. 8 alleges that Kiernan failed to investigate the case, request 9 discovery, and communicate with Hupp; and Kiernan’s lack of (Id. at 4.) In July 2011, Freedman brought (Id. at 5.) Defendant William (Id.) Hupp 10 preparation amounted to ineffective assistance of counsel. 11 6-7.) 12 fingerprint tests on the letters and envelopes allegedly sent by 13 him, but Defendants wrongfully withheld this exculpatory forensic 14 evidence until February 2012, when they produced the evidence in 15 another court case. 16 (Id. at Plaintiff also claims that Defendants performed DNA and (Id. at 11-12.) Plaintiff claims that he was wrongfully convicted based on 17 insufficient evidence and sentenced to twenty-five days in custody, 18 and a $5,000 fine was imposed. 19 trial judge improperly denied him custody credits under California 20 Penal Code section 4019. (Id. at 7.) Hupp alleges that the (Id. at 8.) On January 3, 2012, Hupp reported to the San Diego Sheriff’s 21 22 Department to serve his twenty-five day sentence. 23 Plaintiff claims that he told the Sheriff’s Department personnel 24 that they had to apply to apply Penal Code section 4019 credits to 25 his sentence, but they refused to do so. 26 // (Id.) (Id. at 9.) Hupp also alleges 27 28 6 All claims against Defendant Freedman in this case have been dismissed [ECF No. 35]. 3 12cv0492 GPC(RBB) 1 he was denied access to the law library and was prevented from 2 filing legal papers. 3 (Id. at 10-11.) Plaintiff contends that Defendants never informed him that the 4 San Diego District Attorney’s office, San Diego Police Department, 5 Deputy District Attorney Romo, and Detective Wetzel were 6 investigating and assisting Deputy Attorney General Drcar in 7 prosecuting the November 2011 civil contempt proceedings against 8 Hupp. 9 disclose exculpatory DNA and fingerprint evidence obtained from the (Id. at 7, 11.) Hupp also asserts that Defendants failed to 10 letters Freedman received, in violation of Plaintiff’s due process 11 rights under Brady v. Maryland, 373 U.S. 83 (1963). 12 12.) 13 (Id. at 11- On the basis of these allegations, Plaintiff brought claims 14 for violation of civil rights; conspiracy to withhold Brady 15 evidence; interference with legal mail and free speech; unlawful 16 detention; intentional infliction of emotional distress; as well as 17 gross negligence in the hiring, training, supervision, and 18 retention of prosecutors and peace officers. 19 Hupp also alleged that Defendants’ actions caused him emotional and 20 psychological injuries, embarrassment, humiliation, shame, fright, 21 fear, and grief. 22 seeks compensatory and punitive damages exceeding $75,000, as well 23 as declaratory and injunctive relief. 24 (Id. at 14, 20-21.) (See id. at 12-29.) For his injuries, Plaintiff (Id. at 35-37.) After the rulings on Defendants’ substantive motions, the 25 following claims remain in the case: 26 “Brady” evidence, asserted against Defendants San Diego Police 27 Department and Wetzel (claim one); (2) conspiracy to withhold 28 “Brady” evidence, brought against Defendants San Diego Police 4 (1) the withholding of 12cv0492 GPC(RBB) 1 Department and Wetzel (claim two); (3) declaratory and injunctive 2 relief against San Diego Sheriff’s Department for the denial of 3 section 4019 credits (claim eleven); and (4) interference with 4 Plaintiff’s free speech, right to petition the government, and 5 legal proceedings due to the wrongful search and seizure by San 6 Diego District Attorney’s Office and Cargel (claim twelve7). 7 II. LEGAL STANDARDS 8 A. Motion to Compel Discovery 9 “Parties may obtain discovery regarding any nonprivileged 10 matter that is relevant to any party's claim or defense . . . . 11 Relevant information need not be admissible at the trial if the 12 discovery appears reasonably calculated to lead to the discovery of 13 admissible evidence.” 14 Federal Rules of Civil Procedure enables the propounding party to 15 bring a motion to compel responses to discovery. 16 37(a)(3)(B). 17 opposing disclosure. 18 Cal. 1992). Fed. R. Civ. P. 26(b)(1). Rule 37 of the Fed. R. Civ. P. The party resisting discovery bears the burden of Miller v. Pancucci, 141 F.R.D. 292, 299 (C.D. 19 As the moving party, Hupp must identify (1) the discovery 20 requests that are the subject of his motion to compel, (2) which of 21 the defendants' responses are disputed, (3) why the responses are 22 deficient, (4) the reasons defendants' objections are without 23 merit, and (5) the relevance of the requested information to the 24 prosecution of this action. 25 S–03–2343 JAM EFB P, 2009 WL 331358, at *2 (E.D. Cal. Feb. 10, See, e.g., Brooks v. Alameida, No. CIV 26 27 28 7 On September 17, 2013, the Court stayed § 1983 claims related to the search and seizure of Plaintiff’s property alleged in claim twelve of the Third Amended Complaint pending resolution of the state criminal proceedings against Hupp [ECF No. 156]. 5 12cv0492 GPC(RBB) 1 2009) (“Without knowing which responses plaintiff seeks to compel 2 or on what grounds, the court cannot grant plaintiff's motion.”); 3 Ellis v. Cambra, No. CIV 02–05646–AWI–SMS PC, 2008 WL 860523, at *4 4 (E.D. Cal. Mar. 27, 2008) (“Plaintiff must inform the court which 5 discovery requests are the subject of his motion to compel, and, 6 for each disputed response, inform the court why the information 7 sought is relevant and why Defendant's objections are not 8 justified.”). 9 B. Pro Se Litigants "In general, pro se representation does not excuse a party 10 11 from complying with a court's orders and with the Federal Rules of 12 Civil Procedure." 13 F.3d 852, 856-57 (8th Cir. 1996) (citing Jones v. Phipps, 39 F.3d 14 158, 163 (7th Cir. 1994); Anderson v. Home Ins. Co., 724 F.2d 82, 15 84 (8th Cir. 1983)). 16 themselves are expected to follow the rules of the court in which 17 they litigate. 18 1986); see also Bias v. Moynihan, 508 F.3d 1212, 1223 (9th Cir. 19 2007) (discussing the pro se litigant's untimely filing in 20 violation of local rules). 21 entitled to some latitude when dealing with sophisticated legal 22 issues, acknowledging their lack of formal training, there is no 23 cause for extending this margin to straightforward procedural 24 requirements that a layperson can comprehend as easily as a 25 lawyer." 26 // 27 // 28 // Ackra Direct Mktg. Corp. v. Fingerhut Corp., 86 Above all, plaintiffs who choose to represent Carter v. Comm'r, 784 F.2d 1006, 1008-09 (9th Cir. "[W]hile pro se litigants may be Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir. 1991). 6 12cv0492 GPC(RBB) 1 III. DISCUSSION 2 A. Motion to Compel Discovery From Romo and Myers 3 Plaintiff moved to compel discovery from Defendants County of 4 San Diego, James Patrick Romo, and Peter Myers. (Pl.’s Mot. Compel 5 Mem. P. & A. 3, ECF No. 154.) 6 Myers have been dismissed, [ECF Nos. 221, 228], Plaintiff may not 7 seek discovery under Rules 33 and 34 of the Federal Rules of Civil 8 Procedure from Defendants dismissed from the case. 9 Flores, No. CV F 00 6331 AWILJOP, 2006 WL 1980334, at *1 (E.D. Cal. 10 2006) (denying motion to compel discovery from dismissed defendants 11 in a § 1983 case). 12 Motion to Compel Discovery from Defendants Romo and Myers. Because all claims against Romo and See Stearns v. Accordingly, the Court denies Plaintiff’s 13 B. 14 Plaintiff has served six requests for production on Defendant Motion to Compel Discovery From San Diego County 15 San Diego County. 16 48, ECF No. 154.) 17 18 19 20 21 22 1. (Pl.’s Mot. Compel Mem. P. & A. Ex. 1e, at 43- Document request 1 Hupp’s first request for production from San Diego County seeks the following items: Any and all documents which are in your possession concerning the investigation of plaintiff, and more fully set forth in the Complaint, including Plaintiff’s civil contempt case; Superior Court Case Number 37-201000102264-CU-HR-CTL, and Plaintiff’s criminal case, Superior Court Case Number SCD238651. 23 This shall include at a minimum, but is not limited to: 24 25 a. Any and all reports or forms describing any and all aspects of the investigation; 26 b. Any and all investigation reports, including fingerprint and DNA evidence; 27 c. Any and all audio, video and digital recordings; 28 7 12cv0492 GPC(RBB) 1 2 3 d. Any and all statements of ROMO, Jeffrey Anderson Dort and San Diego County Deputy District Attorney investigator Dan Schmidt concerning or mentioning plaintiff, including any and all e-mail without regard to whether said e-mail account/s are work or personal; 4 5 6 7 8 9 10 11 e. Any and all inter-office memos, intra-office memos, reports, letters, correspondence, computerized records or writings that mention, concern discuss or pertain to Plaintiff; and f. Statements and/or interviews of any witnesses, informants, the plaintiff, Deputy District Attorneys, lawyers, police agents and any Peace Officers, or other persons who had any role or contact with ROMO, Jeffrey Anderson Dort and San Diego County Deputy District Attorney investigator Dan Schmidt concerning the investigation of plaintiff, including any Deputy District Attorney supervisor/s. 12 (Id. at 46.) 13 vague, compound, overbroad, unduly burdensome, not relevant to any 14 claim in the action, and not reasonably calculated to lead to 15 discovery of admissible evidence. 16 also responded that the District Attorney’s discovery had already 17 been produced during Hupp’s criminal case. 18 Defendant San Diego County objected to the request as (Id. Ex. 4, at 93.) Defendant (Id.) In his Motion to Compel, Hupp argues that the County may not 19 avoid responding to this request simply because the relevant 20 documents had already been produced during the course of Hupp’s 21 criminal case. 22 Plaintiff also explains that his request is “much broader than what 23 was produced in the discovery of the criminal trial.” 24 Defendant opposes the motion and argues that Hupp failed to satisfy 25 the meet-and-confer obligation; furthermore, his request is 26 unrelated to the remaining allegations in the case and seeks 27 “future fodder for Plaintiff’s personal vendetta against 28 Defendants.” (Pl.’s Mot. Compel Mem. P. & A. 12, ECF No. 154.) (Defs.’ Opp’n 3-7, ECF No. 172.) 8 (Id.) Defendant San Diego 12cv0492 GPC(RBB) 1 County does not specifically address request number one, but it 2 generally argues that the ruling on Defendants’ substantive motions 3 “may render certain discovery requests irrelevant to the 4 litigation.” (Id. at 4.) 5 Plaintiff’s request to Defendant San Diego County seeks 6 documents related to both his civil contempt case, Superior Court 7 Case Number 37-2010-00102264-CU-HR-CTL, and his criminal case, 8 Superior Court Case Number SCD238651. 9 was prosecuted by the Office of the Attorney General of California. Hupp’s civil contempt case 10 The Court previously dismissed all claims against Deputy Attorney 11 General Drcar, the prosecutor in Plaintiff’s contempt proceeding, 12 finding that Drcar was entitled to absolute immunity from liability 13 under § 1983 [ECF No. 35]. 14 District Attorney Romo, who prosecuted Hupp’s criminal case, was 15 not involved in the civil contempt proceedings [ECF No. 221]. 16 has not shown that the Defendant County has the requisite control 17 over the documents related to his civil contempt case. 18 States v. Int'l Union of Petroleum & Indus. Workers, AFL-CIO, 870 19 F.2d 1450, 1452 (9th Cir. 1989) (“The party seeking production of 20 the documents . . . bears the burden of proving that the opposing 21 party has such control.”) (citing Norman v. Young, 422 F.2d 470, 22 472-73 (10th Cir. 1970)). 23 The Court later found that Deputy Hupp See United Additionally, Plaintiff has not met his burden of showing that 24 Defendant’s objections to his request for documents related to 25 Hupp’s criminal prosecution are improper. 26 the only active remaining claims in the case are withholding and 27 conspiracy to withhold “Brady” evidence against Defendants San 28 Diego Police Department and Wetzel (claims one and two), and for 9 As described earlier, 12cv0492 GPC(RBB) 1 declaratory and injunctive relief against San Diego Sheriff’s 2 Department for the denial of California Penal Code section 4019 3 credits (claim eleven). 4 interference with free speech, his right to petition government and 5 Hupp’s legal proceedings due to wrongful search and seizure (claim 6 twelve) was stayed because Hupp’s criminal case is ongoing [ECF No. 7 156]. 8 this claim.8 9 CV-F-06-1559 OWW/TAG, 2007 WL 1100501, at *9 (E.D. Cal. Apr. 11, Plaintiff’s remaining claim for Thus, at this time, Plaintiff may not propound discovery on See City of Fresno v. United States, No. 10 2007) (“Staying the three causes of action will cause confusion and 11 conflict because the City and Boeing will continue to propound 12 discovery to the United States which they may believe relevant to 13 the unstayed claims but the United States may argue is relevant to 14 the stayed claims.”). 15 excused from responding to this request absent the stay of claim 16 twelve. 17 already received from Defendant City of San Diego documents related 18 to his criminal case investigation, including five reports, 911 and 19 communications tapes, and lab files. 20 Den. in Part Mot. Compel Disc. From City San Diego & Raymond Wetzel 21 8, ECF No. 251.) 22 23 Defendant San Diego County would not be Furthermore, the Court notes that in this case Hupp has (See Order Granting in Part & In sum, Hupp has not demonstrated that the County’s objections to his first request should be overruled. See Ellis, 2008 WL 24 8 25 26 27 28 No party has moved to lift the stay. Although Hupp contends that “Plaintiff’s civil contempt and criminal cases are over[,]” (Pl.’s Mot. Compel Mem. P. & A. 6, ECF No. 154), at the mandatory settlement conference on May 6, 2014, which Hupp failed to attend, Defendants informed the Court that his criminal case is currently on appeal. A search of the California Court of Appeal’s docket reveals that the case is still pending: =41&doc_id=2048351&doc_no=D064053 10 12cv0492 GPC(RBB) 1 860523, at *4 (noting that “[i]f Defendant objects to one of 2 Plaintiff's discovery requests, it is Plaintiff's burden on his 3 motion to compel to demonstrate why the objection is not 4 justified.”). 5 production number one to County is DENIED. 6 7 2. Accordingly, Plaintiff’s motion as to request for Document request 2 In his second request, Hupp seeks “[a]ny and all documents 8 that comprise of, or are part of, ROMO’s personnel file, including 9 the disciplinary record and any other documents concerning ROMO’s 10 hiring, training, duties, performance, assignments and mental and 11 physical condition.” 12 46, ECF No. 154.) 13 the ground that it is vague, ambiguous, compound, overbroad and 14 unduly burdensome, not relevant to any claim in the action, and not 15 reasonably calculated to lead to admissible evidence. 16 at 93.) 17 18 19 20 21 22 23 24 25 (Pl.’s Mot. Compel Mem. P. & A. Ex. 1e, at The Defendant County objected to the request on (Id. Ex. 4, Defendant’s objection further stated: This request seeks privileged information pertaining to personnel and internal affairs matters and seeks disclosure of official information acquired in confidence per Evidence Code § 1040. Disclosure of personnel, medical and similar files in an unwarranted invasion of personal privacy impermissible under the Freedom of Information Act and the State and Federal Constitutions. The information sought is further protected from the disclosure under the provisions of the Federal Privacy Act, as it: 1) seeks records and information compiled for law enforcement purposes, which is categorically exempt from disclosure because its production risks an unwarranted invasion of privacy, 2) seeks nondiscoverable and inadmissible information pertaining to disciplinary recommendations, and 3) seeks information reflecting advisory opinions, consultations, recommendations and deliberations protected from disclosure by the deliberative process privilege. 26 27 (Id. at 93-94.) Plaintiff argues that the San Diego County’s 28 response consists of boilerplate objections and that the 11 12cv0492 GPC(RBB) 1 information he is seeking is relevant.9 2 argues that Defendants were required to seek a protective order to 3 avoid disclosure. (Id. at 7.) Hupp also (Id.) Federal Rule of Civil Procedure 26(c)(1) provides that "[a] 4 5 party or any person from whom discovery is sought may move for a 6 protective order in the court where the action is pending . . . ." 7 Fed. R. Civ. P. 26(c)(1) (emphasis added). 8 that a party seek a protective order when withholding potentially 9 discoverable information. There is no requirement See IPALCO Enterps., Inc. v. PSI Res., 10 Inc., 148 F.R.D. 604, 606 n.3 (S.D. Ind. 1993) ("The Court agrees 11 with defendants that they are not required to move for a protective 12 order under Rule 26(c) every time they object to discovery based on 13 Rule 26(c) grounds.") 14 move for a protective order in this case [ECF No. 160]. 15 Accordingly, Plaintiff's argument is without merit. 16 Additionally, Defendant San Diego County did Furthermore, after Defendant Romo’s dismissal from the case, 17 any information Plaintiff expects to acquire from Romo’s personnel 18 file does not appear to be germane to the remaining claims. 19 Rule 26(b)(1) of the Federal Rules of Civil Procedure, absent good 20 cause, discovery must relate more directly to a “claim or defense” 21 than it did prior to amendments to the rule in 2000. 22 Calvin Presbyterian Church, 375 F.3d 951, 968 (9th Cir. 2004). 23 information Hupp seeks relates to claims against Romo that have 24 been dismissed. Under Elvig v. The To the extent he seeks discovery in connection 25 9 26 27 28 Plaintiff’s document request two to Defendant San Diego County was identical to document request two to Defendant Romo. (Compare Pl.’s Mot. Compel Mem. P. & A. Ex. 1c, with id. Ex. 1e.) In his Motion to Compel, Hupp claims that the County’s “objections are the same as the ROMO objections, and Plaintiff incorporates his reply to ROMO’s objections here.” (Pl.’s Mot. Compel Mem. P. & A. 12, ECF No. 154.) 12 12cv0492 GPC(RBB) 1 with claim twelve, Plaintiff may not do so until his criminal case 2 is over and the stay is lifted. 3 Compel production of documents and things identified in request 4 number two is DENIED. 5 3. For these reasons, the Motion to Document request 3 6 Hupp’s third request seeks the following: 7 Any and all documents concerning, or at all relevant, to any formal or informal complaint made against you or about ROMO, Jeffrey Anderson Dort and San Diego County Deputy District Attorney investigator Dan Schmidt from any source whatsoever, and concerning any subject matter whatsoever, without regard to the outcome. 8 9 10 11 12 13 14 15 16 17 18 19 This shall include at a minimum, but is not limited to: a. Documents concerning all complaints and other disciplinary or police review of you by Internal Affairs or San Diego County; b. The full and complete documents concerning each action listed on ROMO, Jeffrey Anderson Dort and San Diego County Deputy District Attorney investigator Dan Schmidt’s disciplinary record; c. The full and complete documents concerning all complaints and other disciplinary or police review of ROMO, Jeffrey Anderson Dort and San Diego County Deputy District Attorney investigator Dan Schmidt’s activities maintained by San Diego County; and 20 21 22 23 24 d. All information contained in the computers maintained by Internal Affairs or any other division of the District Attorney or San Diego County, concerning ROMO, Jeffrey Anderson Dort and San Diego County Deputy District Attorney investigator Dan Schmidt including but not limited to, information retrievable by computer codes. 25 (Pl.’s Mot. Compel Mem. P. & A. Ex. 1e, at 47, ECF No. 154.) 26 Defendant County objected to this request as vague, ambiguous, 27 compound, overbroad and unduly burdensome, and seeking documents 28 not relevant to the action. (Id. Ex. 4, at 94.) 13 It also objected 12cv0492 GPC(RBB) 1 on privacy grounds and invoked the official information privilege. 2 (Id. at 94-95.) 3 Hupp argues that the County’s objections are “boilerplate 4 denials.” (Pl.’s Mot. Compel Mem. P. & A. 7-8, ECF No. 154.) 5 Plaintiff offers no further argument on how the information he 6 requests is relevant to any remaining claim or defense. 7 initial matter, this request is duplicative as it relates to Romo’s 8 disciplinary record. 9 Plaintiff must establish that the information regarding Romo’s As an Because Romo is no longer a Defendant, 10 performance or discipline remains salient to Hupp’s prosecution of 11 his surviving claims. 12 Schmidt are parties to this case.10 13 shown the relevance of any records involving these individuals. 14 to request number three, the motion is DENIED. 15 16 17 18 19 20 4. Similarly, neither Jeffrey Dort nor Dan At this time, Plaintiff has not As Document request 4 Plaintiff’s fourth request asks Defendant County to produce the following: All Deputy District Attorney materials which are in your possession and relevant to this incident, including, but not limited to, guidelines, directives, policy statements, procedures, training materials of any kind, in any form or medium, concerning District Attorney policy, custom or practice regarding: 21 a. Discipline of Deputy District Attorneys generally; 22 b. Specific discipline for the violation of constitutional rights, including, but not limited to withholding exculpatory evidence, fingerprint evidence, DNA evidence, police reports, investigative reports; and violations of due process; 23 24 25 26 27 28 10 Plaintiff previously attempted to add Dan Schmidt as a Defendant, but his request was denied [ECF No. 148]. 14 12cv0492 GPC(RBB) 1 c. The procedure relating to or regarding acts which violate due process and denies [sic] access to exculpatory evidence, fingerprint evidence, DNA evidence, police reports, investigative reports, by Deputy District Attorneys and investigators, and violations of due process rights during and resulting from the withholding of exculpatory, fingerprint, DNA evidence, police reports, investigative reports. 2 3 4 5 6 (Id. Ex. 1e, at 47-48.) The County raises the same objections: 7 The request is vague, overbroad, and seeks documents not reasonably 8 calculated to lead to the discovery of admissible evidence or 9 relevant to the claims in this case. (Id. Ex. 4, at 95.) Hupp 10 moves to compel, incorporating his earlier conclusory arguments 11 that the County responded with boilerplate objections and that the 12 information he seeks is relevant. (Pl.’s Mot. Compel Mem. P. & A. 13 7-8, ECF No. 154.) 14 Hupp’s request is overbroad and not relevant to any remaining 15 claim in this case. Judge Curiel granted summary judgment in favor 16 of Defendants Romo and the San Diego District Attorney’s Office on 17 Plaintiff’s claims related to withholding “Brady” evidence; the 18 intentional infliction of emotional distress; and the negligent 19 hiring, training, supervision, and retention of deputy district 20 attorneys. (Order Granting Defs. Cnty. San Diego & James Romo’s 21 Mot. Summ. J. 11-12, ECF No. 221.) The Court explained: 22 23 24 25 26 27 28 Plaintiff’s claims for intentional infliction of emotional distress against both Defendants as well as for negligent hiring, training, supervision, and retention of deputy district attorneys against the SD DA as a Defendant County agency are based on Plaintiff’s allegations that Defendant Romo withheld and concealed exculpatory evidence during Plaintiff’s civil contempt proceedings. (See Compl. ¶¶ 97, 101, 109, 115.) Defendants’ evidence, provided in the form of declarations by Defendant Romo and Attorney General Drcar, directly contradicts Plaintiff’s allegations. (See Dkt. No. 123-3 ¶ 4; Dkt. No. 123-4 ¶ 5.) According to 15 12cv0492 GPC(RBB) 1 both declarations, Defendant Romo did not conduct or assist with the California Attorney General’s civil harassment and contempt of court allegations against Plaintiff in any capacity. (Dkt. No. 123-3 ¶ 4; Dkt. No. 123-4 ¶ 5.) Because Plaintiff fails to offer evidence beyond the pleadings to show that there is a genuine issue for trial, the Court GRANTS Defendants County and James Romo judgment as a matter of law as to Plaintiff’s derivative claims for emotional distress and County Monell liability. 2 3 4 5 6 7 (Id.) 8 supervisory liability under Monell v. Dep't of Soc. Servs., 436 9 U.S. 658, 694-95 (1978), have been dismissed from the case, Thus, because Hupp’s claims against the County based on 10 Plaintiff is not entitled to discovery relating to the negligent 11 hiring, training, supervision or retention of deputy district 12 attorneys. 13 BAM PC, 2012 U.S. Dist. LEXIS 100484, at *7 (E.D. Cal. July 19, 14 2012) (“Plaintiff’s motion for sanctions is based upon discovery 15 requests for claims that are no longer in issue in this action and 16 shall be denied.”). 17 number four is DENIED. 18 5. 19 20 21 22 23 24 25 See Manriquez v. Huchins, Case No. 1:09-cv-00456-LJO- The Motion to Compel discovery for request Document request 5 Plaintiff’s fifth request asks the County for documents that refer to third parties. Your responses shall include any and all writings and documents, either directly or indirectly, between Freedom Communications Inc. or their representatives, Michael Bishop or his representatives, Richard and Judith Beyl or their representatives, any federal court or their representatives, any federal law enforcement agency or their representatives, any state law enforcement agency or their representatives and any local law enforcement agency or their representatives. 26 (Pl.’s Mot. Compel Mem. P. & A. Ex. 1e, at 48, ECF No. 154.) 27 County objected that “[t]his is not a valid request.” 28 at 96.) The (Id. Ex. 4, Plaintiff moves to compel, arguing that the County failed 16 12cv0492 GPC(RBB) 1 to respond to his “valid requests.” 2 A. 12, ECF No. 154.) 3 (Pl.’s Mot. Compel Mem. P. & Neither party substantively addresses the County’s objection. 4 Plaintiff’s fifth request is unrelated to this lawsuit. Neither 5 Freedom Communications, Michael Bishop, Richard Beyl, nor Judith 6 Beyl are defendants or witnesses in Hupp’s litigation against the 7 City of San Diego and Defendant Wetzel. 8 ECF No. 64.) 9 defendants in two of Plaintiff's other lawsuits: (See Third Am. Compl. 2-4, Freedom Communication and these individuals were See Hupp v. 10 Freedom Commc'ns, Inc., 221 Cal. App. 4th 398, 163 Cal. Rptr. 3d 11 919 (2013); Hupp v. Cnty. of San Diego, No. CIV 13-2655-GPC-RBB, 12 2014 WL 68580 (S.D. Cal. Jan. 8, 2014). 13 request for discovery is made in connection with other litigation, 14 the discovery request is improper. 15 Compel a further response to request number five is DENIED. 6. 16 17 To the extent that Hupp's Accordingly, Hupp’s Motion to Document request 6 Plaintiff’s final request to the County sought “[a]ny and all 18 other documents that relate to this action, no matter how slight, 19 that are not covered in any of the above requests.” 20 Compel Mem. P. & A. Ex. 1e, ECF No. 154.) 21 that this request is invalid, vague, and overbroad. 22 96.) 23 assertion that the County failed to respond to his “valid 24 requests.” 25 Assuming that the discovery sought is relevant, Plaintiff has not 26 demonstrated that the County’s objections are unwarranted. 27 Ellis, 2008 WL 860523, at *4. 28 See Audibert v. Lowe's Home Centers, Inc., 152 F. App'x 399, 401-02 (Pl.’s Mot. The Defendant objected (Id. Ex. 4, at In his Motion to Compel, Hupp restates his conclusory (Pl.’s Mot. Compel Mem. P. & A. 12, ECF No. 154.) See Further, this request is overbroad. 17 12cv0492 GPC(RBB) 1 (5th Cir. Nov. 1, 2005) (unpublished per curiam opinion) (finding 2 that a district court did not abuse its discretion in denying a 3 plaintiff’s “extremely broad discovery requests” which asked for 4 “‘all things, all documents, all statements, all knowledge of 5 facts, sworn or unsworn, relating to this case’”) (quoting the 6 plaintiff’s discovery request). 7 County to produce documents in response to request number six is 8 DENIED. 9 B. 10 Plaintiff’s Motion to Compel the Meet-and-Confer Requirement According to the Civil Local Rules for the Southern District 11 of California, "The court will entertain no motion pursuant to 12 Rules 26 through 37, Fed. R. Civ. P., unless counsel shall have 13 previously met and conferred concerning all disputed issues." 14 Cal. Civ. R. 26.1(a). 15 they are to meet in person. 16 counties, they are to confer by telephone." 17 further provide that "[u]nder no circumstances may the parties 18 satisfy the meet-and-confer requirement by exchanging written 19 correspondence." 20 S.D. "If counsel have offices in the same county, If counsel have offices in different (Id.) The local rules (Id.) Rules requiring meet-and-confer efforts apply to pro se Madsen v. Risenhoover, No. C 09-5457 SBA (PR), 2012 21 litigants. 22 U.S. Dist. LEXIS 90810, at *8-9 (N.D. Cal. June 28, 2012) (finding 23 that the meet-and-confer requirement applies to incarcerated 24 individuals, but noting that the incarcerated plaintiff may send a 25 letter to defendants); Walker v. Ryan, No. CV-10-1408-PHX-JWS 26 (LOA), 2012 U.S. Dist. LEXIS 63606, at *5-6 (D. Ariz. May 7, 2012) 27 (denying motion to compel where unrepresented party did not include 28 a certification of attempts to meet and confer); see also Jourdan 18 12cv0492 GPC(RBB) 1 v. Jabe, 951 F.2d 108, 109 (6th Cir. 1991) (discussing that 2 although courts should liberally construe pro se plaintiffs' 3 pleadings and legal arguments, this liberality does not apply to 4 compliance with straightforward procedural requirements). 5 A court can deny a motion to compel solely because of a 6 party's failure to meet and confer prior to filing the motion. 7 Scheinuck v. Sepulveda, No. C 09-0727 WHA (PR), 2010 U.S. Dist. 8 LEXIS 136529, at *3-4 (N.D. Cal. Dec. 15, 2010); see Shaw v. Cnty. 9 of San Diego, No. 06-CV-2680-IEG (POR), 2008 U.S. Dist. LEXIS 10 80508, at *3-4 (S.D. Cal. Oct. 9, 2008) (denying plaintiff's motion 11 to compel for failing to meet and confer). 12 can exercise its discretion to decide a motion on the merits 13 despite a failure to meet and confer. 14 Marine Trvelift, Inc., No. 10cv846-BTM (KSC), 2012 U.S. Dist. LEXIS 15 49064, at *6-7 (S.D. Cal. Apr. 6, 2012) (explaining failure to meet 16 and confer is grounds for denying a motion, but still addressing 17 the merits). 18 Nonetheless, a court See Marine Group, LLC v. Defendants argue in their opposition that Plaintiff did not 19 satisfy the meet-and-confer requirements of the Federal Rule of 20 Civil Procedure 37 prior to bringing his Motion to Compel. 21 Opp’n 3, ECF No. 172.) 22 sent meet-and-confer letters for each Defendant to Defendants’ 23 counsel by e-mail and hard copy, and also placed meet-and-confer 24 phone calls to Defendants’ counsel, but the counsel’s telephone 25 number listed on the pleadings was not a working number. 26 Mot. Compel Mem. P. & A. 4-5, ECF No. 154.) 27 that he then sent further e-mail notifications to Defendants’ 28 counsel. (Id. at 5.) (Defs.’ In his motion, Plaintiff alleged that he (Pl.’s Plaintiff contends Hupp states that Defendants’ “substitute 19 12cv0492 GPC(RBB) 1 counsel” called him later that day to meet and confer, and 2 reiterated the same objections. 3 out that Defendants subsequently filed their Motion for Protective 4 Order, submitting a declaration from their counsel, James Chapin, 5 which states: 6 (Id.) In his reply, Hupp points 10 On August 26, 2013, I contacted Plaintiff Paul Hupp by telephone in order to meet and confer regarding the discovery he propounded to Defendants Romo, Myers and the County. After nearly 30 minutes of attempting to discuss discovery issues with Mr. Hupp, no progress was made on any discovery issue. Mr. Hupp appears unreasonable and uncompromising; the conversation demonstrated that a meaningful, productive meet and confer with Mr. Hupp is not possible. 11 (Defs.’ Mot. Protective Order Attach. #2, Decl. James Chapin 2, ECF 12 No. 160.) 7 8 9 13 This is not the first time the parties alleged difficulties 14 satisfying the meet-and-confer requirement. 15 Cnty., Civil No. 12cv0492 GPC (RBB), 2014 WL 1404510, at *16-17 16 (S.D. Cal. Apr. 10, 2014). 17 Plaintiff and Defendants’ counsel engaged in a telephonic 18 conversation regarding the dispute, in addition to exchanging e- 19 mail correspondence. 20 discussion did not resolve any of the discovery issues, the failure 21 to come to an agreement does not establish that Plaintiff failed to 22 meet and confer as required by the rules. 23 Hupp satisfied his meet-and-confer requirement. See Hupp v. San Diego Unlike the previous time, however, Although it is unfortunate that their The Court concludes that 24 B. Defendants’ Motion for Protective Order 25 Defendants San Diego County, James Romo and Peter Myers filed 26 a Motion for Protective order, asking the Court to stay discovery 27 pending the resolution of Defendants’ dispositive motions. 28 Protective Order Attach. #1 Mem. P. & A. 3, ECF No. 160.) 20 (Mot. They 12cv0492 GPC(RBB) 1 represent that the following dispositive motions resolve all claims 2 in this action against them: 3 Attorney’s Office and James Romo’s Motion for Summary Judgment or 4 Partial Summary Judgment [ECF No. 123], Defendant County of San 5 Diego’s Motion for Judgment on the Pleadings [ECF No. 127], and 6 Defendants County of San Diego and Peter Myers’ Motion for Summary 7 Judgment [ECF No. 161]. 8 9 Defendants San Diego District (Id.) Judge Curiel has ruled on all the motions filed by these Defendants. Defendants San Diego District Attorney’s Office and 10 James Romo’s Motion for Summary Judgment was granted on January 9, 11 2014 [ECF No. 221]. 12 Myers’ Motion for Summary Judgment was granted on January 30, 2014 13 [ECF No. 228]. 14 on the Pleadings was granted on March 4, 2014 [ECF No. 239]. 15 Moreover, Defendants Romo and Myers have been dismissed from the 16 case. 17 moot. Defendants County of San Diego and Peter Defendant County of San Diego’s Motion for Judgment Accordingly, the Motion for Protective Order is DENIED as 18 IV. CONCLUSION 19 For the reasons stated above, Plaintiff’s Motion to Compel 20 [ECF No. 154] is DENIED, and Defendants’ Motion for Protective 21 Order [ECF No. 160] is DENIED as moot. IT IS SO ORDERED. 22 23 Dated: June 3, 2014 ______________________________ Ruben B. Brooks United States Magistrate Judge 24 25 cc: Judge Curiel All Parties of Record 26 27 28 I:\Chambers Brooks\CASES\_1983\HUPP0492\Mot to Compel County\Order re Motion to Compel SD Cnty & Mot for Protective Order 4.wpd 21 12cv0492 GPC(RBB)

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