Patterson v. Berrett et al

Filing 39

ORDER Denying Plaintiff's 27 Motion to Inspect Evidence and 33 Motion to Strike the 31 Response. Signed by Magistrate Judge Carl W. Hoffman on 7/15/2015. (Copies have been distributed pursuant to the NEF - SLD)

1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
8
DISTRICT OF NEVADA
9
CHRISTOPHER PATTERSON,

10
11
12
13
14

)
)
Plaintiff,
)
)
vs.
)
)
BILL A. BERRETT, et al.,
)
)
Defendants.
)
__________________________________________)

Case No. 2:14-cv-01249-LDG-CWH
ORDER

15

Before the Court are Plaintiff Christopher Patterson’s (“plaintiff”) motions to inspect evidence

16

(doc. # 27) and strike the response (doc. # 33). Also before the Court are Defendants Lt. Clark and

17

Deputy Chief Todd Fasulo’s (“defendants”) responses (docs. # 31, # 37), and plaintiff’s reply (doc.

18

# 38).

19

BACKGROUND

20

This is a civil rights action pursuant to 42 U.S.C. § 1983. On July 29, 2014, plaintiff filed an

21

application to proceed in forma pauperis and a complaint. See Doc. # 1. On October 10, 2014, the

22

Court entered a screening order: (1) granting plaintiff’s request to proceed in forma pauperis;

23

(2) dismissing Counts II, III, and IV of plaintiff’s complaint without prejudice, and without leave to

24

amend; and (3) allowing Count I of plaintiff’s complaint referring to “wristbands” to proceed, and

25

providing plaintiff an opportunity to amend the portion regarding “religious materials.” See Doc. # 2.

26

Plaintiff failed to amend, which led the Court to issue an order dismissing the “religious materials”

27

portion of Count I of the complaint. See Doc. # 4. Thereafter, Deputy Chief Todd Fasulo was named

28

a defendant in this action. See Doc. # 10; Doc. # 15. The Court subsequently entered a scheduling

1

order setting a discovery cut-off date of April 30, 2015. See Doc. # 13. Since that time, the parties

2

have attempted to engage in discovery, with this Court eventually ordering plaintiff to respond to

3

defendants’ discovery requests no later than June 18, 2015, without objection. See Doc. # 32.

4
5
6
7

DISCUSSION
1.

Motion to Inspect Evidence (doc. # 27)
Plaintiff brings the instant motion to compel defendants to produce various documents that

plaintiff believes are within the custody of defendants.

8

In response, defendants contend that plaintiff has failed to comply with the prerequisites of

9

filing a motion to compel. Defendants also point out that plaintiff failed to communicate his discovery

10

requests to defendants prior to filing the instant motion. Plaintiff did not file a reply.

11

Under Rule 37(a)(1) of the Federal Rules of Civil Procedure, a party seeking to compel

12

responses to discovery requests “must include a certification that the movant has in good faith

13

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

14

effort to obtain it without court action.” Fed.R.Civ.Pro. 37(a)(1). Moreover, Local Rule 26-7(b) states

15

that “[d]iscovery motions will not be considered unless a statement of the movant is attached thereto

16

certifying that, after personal consultation and sincere effort to do so, the parties have been unable to

17

resolve the matter without Court action.” Loc.Civ.R. 26-7(b).

18

Rule 37’s meet and confer requirement and Local Rule 26-7(b)’s personal consultation

19

requirement serve important purposes; they “lessen the burden on the court and reduce the unnecessary

20

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

21

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

22

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

23

or to at least narrow and focus matters in controversy before judicial resolution is sought.” Id. To

24

serve its purpose, parties must “treat the informal negotiation process as a substitute for, and not

25

simply a formal prerequisite to, judicial review of discovery disputes.” Id. To do so, the parties must

26

“present to each other the merits of their respective positions with the same candor, specificity, and

27

support during the informal negotiations as during the briefing of discovery motions.” Id. Judicial

28

intervention is only appropriate when: (1) informal negotiations reach an impasse on the substantive
2

1

issue disputed, or (2) a party acts in bad faith by refusing to engage in negotiations or by refusing to

2

provide specific support for its claims of privilege. Id.

3

Here, plaintiff has not even bothered to communicate his discovery requests to defendants

4

before filing the instant motion. Thus, plaintiff fails to demonstrate that he has attempted to engage

5

in the type of meet and confer process or personal consultation contemplated by the rules. As such,

6

plaintiff’s motion is denied.

7

2.

8
9

Motion to Strike the Response (doc. # 33)
Plaintiff also asks the Court to strike defendants’ response (doc. # 31) to plaintiff’s motion to

inspect evidence (doc. # 27).

10

Defendants, in opposition, point out that plaintiff fails to provide any basis for the Court to

11

strike the response. Defendants also point out that plaintiff fails to provide the Court with any

12

evidence demonstrating his efforts to obtain discovery from defendants. Defendants add that plaintiff

13

even admits he has failed to utilize the proper procedures to obtain the discovery he seeks.

14
15

In reply, plaintiff reiterates his request to strike defendants’ response (doc. # 31), claiming he
is entitled to such because defendants are “unjustly infringing” on his rights.

16

This Court agrees with defendants that no basis exists for granting the instant motion.

17

CONCLUSION AND ORDER

18
19
20
21
22

Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion to inspect evidence (doc.
# 27) is denied.
IT IS FURTHER ORDERED that plaintiff’s motion to strike the response (doc. # 33) is
denied.
DATED: July 15, 2015

23
24
25

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

26
27
28
3