Bailey et al v. Suey et al

Filing 122

ORDER Denying Plaintiff's 120 Motion to Compel. Signed by Magistrate Judge Carl W. Hoffman on 10/20/2014. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ANTHONY BAILEY, et al.,

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Plaintiffs,
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vs.
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CPT. RICH SUEY, et al.,
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Defendants.
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__________________________________________)

Case No. 2:12-cv-01954-JCM-CWH
ORDER

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This matter is before the Court on Plaintiff Anthony Bailey’s Motion to Compel (#120),
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filed September 18, 2014, and Defendants’ Response (#121), filed October 6, 2014. Plaintiff did
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not file a timely reply.
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By way of his current motion, Plaintiff Anthony Bailey seeks an order compelling
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Defendants to produce several items pursuant to what he has identified as his “combined discovery
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requests” made pursuant to Federal Rules of Civil Procedure 33, 34, and 36. Specifically, he
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requests that Defendants produce: (1) EPA reports prior to construction by an unnamed company
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on the jail facility, (2) photographs of all vents in the “north tower” on floors 2-9, certified by an
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entity not employed by the jail, (3) copies of Nevada Revised Statutes governing the Clark County
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Commissioners and Sheriff’s responsibilities for maintenance of jail facilities, (4) identities of all
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correctional officers who have made presumptive disease claims based on work in the jail, and (5)
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copies of certain sections of the Las Vegas Metropolitan Police Department’s forensic quality
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manual.
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Defendants oppose the motion on several grounds. First, they assert that Plaintiff did not
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make any effort to meet and confer or otherwise personally consult with Defendants prior to filing
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the motion. Second, they note that the motion does not set forth the text of the discovery originally
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sought and the responses thereto. Third, they assert that Plaintiff did not serve proper discovery

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requests and, even if he had, the requests are either irrelevant or seek production of information not

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in the custody, possession, or control of Defendants. For these reasons, Defendants request that the

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motion be denied as both procedurally and substantively flawed.

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The Court agrees with Defendants. Plaintiff’s motion is both procedurally and

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substantively flawed and will be denied. Plaintiff is a frequent litigator and is well aware that,

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though proceeding pro se, he is not relieved from complying with all applicable rules. Courts

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broadly construe pleadings filed by pro se litigants, but even pro se litigants must comply with the

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Federal Rules of Civil Procedure. See e.g. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Pro

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se litigants are not treated more favorable than parties with attorneys of record, and are expected to

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abide by the rules of the court in which the litigation proceeds. Carter v. Comm’r of Internal

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Revenue, 784 F.2d 1006, 1008 (9th Cir. 1986).

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A party seeking to compel disclosures or discovery must certify that he “has in good faith

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conferred or attempted to confer with the person or party failing to make disclosure or discovery in

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an effort to obtain it without court action.” Fed. R. Civ. P. 37(a)(1). This Court’s Local Rules

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require a moving party to personally consult with the person or party failing to make disclosure or

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discovery prior to bringing any discovery motion. Local Rule 26-7(b). Both the meet and confer

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requirement of Rule 37 and the personal consultation requirement of LR 26-7(b) serve important

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purposes. Compliance is required “to lessen the burden on the court and reduce the unnecessary

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expenditure of resources by litigants, through the promotion of informal, extrajudicial resolution of

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discovery disputes.” Nevada Power v. Monsanto, 151 F.R.D. 118, 120 (D. Nev. 1993). The

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consultation obligation “promote[s] a frank exchange between counsel to resolve issues by

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agreement or to at least narrow and focus matters in controversy before judicial resolution is

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sought.” Id. In order to serve its purpose, parties must “treat the informal negotiation process as a

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substitute for, and not simply a formal prerequisite to, judicial review of discovery disputes.”

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The undersigned is mindful that Plaintiff is incarcerated, which necessarily limits the

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potential formats for accomplishment of the consultation process. However, it does not eliminate

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the requirement that it be satisfied. In the normal case, the Court would expect the parties to meet

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and confer either in person or telephonically prior to the motion being filed. It has long been true
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that, absent compelling circumstances, the mere exchange of letters has long been seen as

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insufficient to satisfy the “personal consultation” requirement. See e.g., Hunter v. Moran, 128

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F.R.D. 115 (D. Nev. 1989). Normally, the exchange of letters is an “inadequate means” through

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which counsel may attempt to confer. However, where one of the parties is a prisoner, as here, the

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court does not require in-person meetings and instead allows the prisoner and defense counsel to

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meet and confer by telephone or by exchanging letters. There is nothing to suggest that Plaintiff

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satisfied the conferral requirement prior to filing this motion and, consequently, the motion is

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denied for failure to comply with the requirements of Rule 37(a)(1) and Local Rule 26-7(b).

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Defendants are further correct that Plaintiff has not set forth in full the text of the discovery

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originally sought. The only identifiable discovery requests are attached as an exhibit and are

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limited to Rule 36 requests, to which Defendant responded. There are no Rule 33 or Rule 34

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requests that have been set forth, nor does it appear there are any that have been propounded.

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Consequently, the motion is denied under Local Rule 26-7(a) as well.

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Having determined that Plaintiff’s motion should be denied for failure to comply with the

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foregoing rules, the Court declines to address the substance of the documents Plaintiff seeks to

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compel.

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Based on the foregoing and good cause appearing,

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IT IS HEREBY ORDERED that Plaintiff’s Motion to Compel (#120) is denied.

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DATED: October 20, 2014.

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______________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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