Entler v. Gonzalez et al

Filing 40

ORDER Denying Defendants' 34 Motion to Strike and Plaintiff's 21 Motion to Compel, signed by Judge J Richard Creatura.**5 PAGE(S), PRINT ALL**(John Entler, Prisoner ID: 964471)(GMR)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 JOHN THOMAS ENTLER, Plaintiff, 11 12 13 14 v. ROY GONZALEZ, et al., CASE NO. 3:17-cv-05407-RBL-JRC ORDER DENYING MOTION TO COMPEL AND DENYING MOTION TO STRIKE Defendants. 15 16 The District Court has referred this 42 U.S.C. § 1983 civil rights action to United States 17 Magistrate Judge J. Richard Creatura. The Court’s authority for the referral is 28 U.S.C. § 18 636(b)(1)(A) and (B), and local Magistrate Judge Rules MJR 3 and MJR 4. 19 Plaintiff John Thomas Entler has filed a motion to compel discovery, attaching a 20 certification stating that he has met and conferred with defendants. However, plaintiff only met 21 and conferred with defendants about two discovery materials and has not yet met or conferred 22 about the remaining eight discovery materials he identified in his motion. Therefore, the motion 23 is denied because it is premature. 24 ORDER DENYING MOTION TO COMPEL AND DENYING MOTION TO STRIKE - 1 1 2 BACKGROUND Plaintiff originally filed his complaint in May of 2017. Dkt. 1. He alleges that defendants 3 were deliberately indifferent to plaintiff’s safety when they installed Lexis Nexis on the prison 4 computers, thereby allowing other prisoners to learn of plaintiff’s underlying conviction and 5 allegedly leading to other prisoners harassing and threatening plaintiff. Dkt. 8. He alleges that 6 defendants have further refused to remove Lexis Nexis from the computers or censor his name in 7 the system. Id. After the Court ordered service of the complaint and entered a pretrial scheduling 8 order (Dkts. 9, 14), plaintiff filed a motion to compel (Dkt. 21). 9 In his motion, plaintiff argues that defendants have failed to provide the mandatory initial 10 disclosures required by the Court’s mandatory pretrial scheduling order. Id. He requests that the 11 Court compel defendants to provide a group of ten allegedly discoverable materials. Id. at 3-5. 12 He has also included a certificate stating he met and conferred with defendants to resolve the 13 dispute without success. Id. at 11-12. 14 Defendants responded, stating that plaintiff had not, in fact, met or conferred with 15 defendants. Dkt. 30. They argue that, though plaintiff discussed two discovery issues with 16 defendants’ counsel, the discussion did not include the discovery items identified in the motion 17 and therefore the motion is premature. Id. Plaintiff filed a reply, alleging that he “illustrated to 18 [defendants’ counsel] documents/records [defendants] could have produced, but didn’t,” and 19 further states that defendants were on notice they were not in compliance with the pretrial 20 scheduling order. Dkt. 32 at 2. Defendants filed a surreply, requesting plaintiff’s statement be 21 stricken because it is, “at a minimum, quite misleading.” Dkt. 34 at 1. Plaintiff then filed a 22 response to that surreply. Dkt. 36. Because it was filed in violation of local rules (see LCR 7), the 23 Court does not consider plaintiff’s response to the surreply. 24 ORDER DENYING MOTION TO COMPEL AND DENYING MOTION TO STRIKE - 2 1 DISCUSSION 2 I. 3 Defendants have filed a surreply moving to strike from plaintiff’s reply the “assertion that 4 he ‘illustrated to [opposing counsel] documents/records [which] could have [been] produced, but 5 [weren’t]’.” Dkt. 34 at 1 (citing Dkt. 32 at 2, ¶ 2.3). The Court may strike from a pleading any 6 “redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. Proc. 12(f). When a 7 party moves to strike material contained in a reply brief, a surreply is the appropriate vehicle. 8 LCR 7(g). Here, defendants have not specified whether they think plaintiff’s statement is 9 redundant, immaterial, impertinent, or scandalous, but have requested the Court strike plaintiff’s Motion to Strike 10 statement because the statement is, “at a minimum, quite misleading.” Dkt. 34 at 1. The Court 11 declines to strike the material, although it is minimally useful. 12 The Court agrees with defendants that a general statement that “[defendants] continue to 13 violate the Courts [sic] mandatory discovery order” (Dkt. 35-1 at 2) is not enough to place 14 defendants on notice of specific documents plaintiff believes defendants have failed to produce. 15 II. 16 While a party may apply to the court for an order compelling discovery, the movant must 17 first meet and confer with the party failing to make disclosure or discovery in an effort to resolve 18 the dispute without court action. Fed. R. Civ. P. 37 (a)(1); LCR 37(a)(1). In addition, when filing 19 a motion to compel, the movant must include a certification, in the motion or in a declaration or 20 affidavit, that the movant has in good faith conferred or attempted to confer with the party 21 allegedly failing to make disclosure or discovery in an effort to resolve the dispute without court 22 action. LCR 37(a)(1). The certification must list the date, manner, and participants to the Motion to Compel 23 24 ORDER DENYING MOTION TO COMPEL AND DENYING MOTION TO STRIKE - 3 1 conference. Id. If the movant fails to include such a certification, the Court may deny the motion 2 without addressing the merits of the dispute. See id. 3 Plaintiff has filed a certification stating that he and defendants’ counsel spoke about their 4 discovery dispute on February 5, 2018. Dkt. 21 at 11-12. However, both parties have also 5 provided evidence that, though the parties met and conferred on February 5, 2018, they only met 6 and conferred about two specific articles of discovery -- not the ten discovery requests contained 7 in plaintiff’s motion to compel. See Dkts. 21 at 13; 36 at 7; Dkts. 29, 35. Though plaintiff need 8 not meet and confer with defendants’ counsel in person, he must meet and confer about the 9 specific discovery requests he believes defendants are not complying with before he files the 10 motion to compel. See, e.g., Moore v. Magat, No. 140cv003608-HSG (PR), 2015 WL 5611438 11 at *1 (N.D. Cal. 2015); Madsen v. Risenhoover, No. C 09-5457 SBA (PR), 2012 WL 2873836 at 12 *3 (N.D. Cal. 2012) (both noting that defendants must be notified of the specific discovery they 13 are allegedly withholding before plaintiff may file a motion to compel). Moreover, defendants 14 claim that they have now provided the discovery requested in the February 5, 2018 conversation. 15 Dkts. 21 at 3-4; 35 at 2 (providing a contract between the Department of Corrections and Lexis 16 Nexis, and a declaration from defendant Roy Gonzalez regarding a different matter). Though 17 plaintiff has met and conferred about two discovery disputes, the evidence before the Court 18 indicates that he has not met and conferred about the remainder of the discovery identified in his 19 motion to compel. Therefore, the Court denies plaintiff’s motion to compel. 20 // 21 // 22 // 23 // 24 ORDER DENYING MOTION TO COMPEL AND DENYING MOTION TO STRIKE - 4 1 CONCLUSIONS 2 For the reasons stated above, defendants’ motion to strike (Dkt. 34) is denied and 3 plaintiff’s motion to compel (Dkt. 21) is also denied. The parties still have until May 1, 2018, to 4 file dispositive motions. Dkt. 14. 5 Dated this 9th day of April, 2018. A 6 7 J. Richard Creatura United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER DENYING MOTION TO COMPEL AND DENYING MOTION TO STRIKE - 5

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