(PC) Brookins v. Hernandez ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BARRY LEE BROOKINS, ) Case No. 1:17-cv-01675-AWI-SAB (PC) ) 12 Plaintiff, ) ) ORDER DENYING PLAINTIFF’S MOTION 13 v. ) TO COMPEL ) 14 M. HERNANDEZ, et al., [ECF No. 55] ) 15 Defendants. ) ) 16 ) 17 Plaintiff Barry Lee Brookins is appearing pro se and in forma pauperis in this civil rights action 18 pursuant to 42 U.S.C. § 1983. 19 Currently before the Court is Plaintiff’s motion to compel, filed February 10, 2020. 20 I. 21 RELEVANT HISTORY 22 This action is proceeding against Defendants Officer M. Hernandez and E. Williams for cruel 23 and unusual punishment. 24 Defendants filed an answer to the complaint on December 19, 2018. 25 After an unsuccessful settlement conference, the Court issued the discovery and scheduling 26 order on March 6, 2019. (ECF No. 37.) 27 28 1 On May 16, 2019, the Court granted Defendants request to modify the scheduling order and 2 extended the time to file an exhaustion-related motion for summary judgment to July 9, 2019. (ECF 3 No. 41.) 4 On July 9, 2019, Defendants filed an exhaustion-related motion for summary judgment. (ECF 5 No. 42.) 6 On August 30, 2019, the undersigned issued Findings and Recommendations recommending 7 that Defendants’ exhaustion-related motion for summary judgment be granted, and Defendants A. 8 Williams, Gelvezon, Sanchez, Crane, Scheesley, and Marsh be dismissed, without prejudice, for 9 failure to exhaust the administrative remedies. (ECF No. 46.) 10 On December 16, 2019, the Findings and Recommendations were adopted in full and 11 Defendants A. Williams, Gelvezon, Sanchez, Crane, Scheesley, and Marsh were dismissed from the 12 action, without prejudice. (ECF No. 48.) 13 On January 16, 2020, Plaintiff filed a motion for reconsideration of the Court’s December 16, 14 2019 order, which is pending review before the Honorable Anthony W. Ishii. (ECF No. 52.) 15 As previously stated, on February 10, 2020, Plaintiff filed the instant motion to compel. (ECF 16 No. 55.) Defendants filed an opposition on February 26, 2020. Although the time for Plaintiff to file 17 a reply has not expired, the Court finds the motion suitable for review without a reply. Local Rule 18 230(l). 19 II. 20 LEGAL STANDARD 21 Plaintiff is proceeding pro se and he is a civil detainee challenging his conditions of confinement. 22 As a result, the parties were relieved of some of the requirements which would otherwise apply, 23 including initial disclosure and the need to meet and confer in good faith prior to involving the Court in 24 a discovery dispute. Fed. R. Civ. P. 26(a)(1); Fed. R. Civ. P. 26(c); Fed. R. Civ. P. 37(a)(1); Local Rules 25 240, 251; ECF No. 37, Discovery and Scheduling Order, ¶ 4. Further, where otherwise discoverable 26 information would pose a threat to the safety and security of the prison or infringe upon a protected 27 privacy interest, a need may arise for the Court to balance interests in determining whether disclosure 28 should occur. See Fed. R. Civ. P. 26(c); Seattle Times Co. v. Rhinehart, 467 U.S. 20, 35 n.21 (1984) 1 (privacy rights or interests implicit in broad purpose and language of Rule 26(c)); Burlington N. & Santa 2 Fe Ry. Co. v. United States Dist. Court for the Dist. of Montana, 408 F.3d 1142, 1149 (9th Cir. 2005) 3 (discussing assertion of privilege); Soto v. City of Concord, 162 F.R.D. 603, 616 (N.D. Cal. 1995) 4 (recognizing a constitutionally-based right of privacy that can be raised in discovery); see also Garcia 5 v. Clark, No. 1:10-CV-00447-LJO-DLB PC, 2012 WL 1232315, at *6 n.5 (E.D. Cal. Apr. 12, 2012) 6 (noting inmate=s entitlement to inspect discoverable information may be accommodated in ways which 7 mitigate institutional safety concerns); Robinson v. Adams, No. 1:08-cv-01380-AWI-BAM PC, 2012 8 WL 912746, at *2-3 (E.D. Cal. Mar. 16, 2012) (issuing protective order regarding documents containing 9 information which implicated the safety and security of the prison); Orr v. Hernandez, No. CV-08-0472- 10 JLQ, 2012 WL 761355, at *1-2 (E.D. Cal. Mar. 7, 2012) (addressing requests for protective order and 11 for redaction of information asserted to risk jeopardizing safety and security of inmates or the institution 12 if released); Womack v. Virga, No. CIV S-11-1030 MCE EFB P, 2011 WL 6703958, at *5-6 (E.D. Cal. 13 Dec. 21, 2011) (requiring defendants to submit withheld documents for in camera review or move for a 14 protective order). 15 However, this is a civil action to which the Federal Rules of Civil Procedure apply. The 16 discovery process is subject to the overriding limitation of good faith, and callous disregard of discovery 17 responsibilities cannot be condoned. Asea, Inc. v. Southern Pac. Transp. Co., 669 F.2d 1242, 1246 (9th 18 Cir. 1981) (quotation marks and citation omitted). “Parties may obtain discovery regarding any 19 nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the 20 case, considering the importance of the issues at stake in the action, the amount in controversy, the 21 parties’ relative access to relevant information, the parties’ resources, the importance of the discovery 22 in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely 23 benefit.” Fed R. Civ. P. 26(b)(1). 24 Generally, if the responding party objects to a discovery request, the party moving to compel 25 bears the burden of demonstrating why the objections are not justified. Grabek v. Dickinson, No. CIV 26 S-10-2892 GGH P, 2012 WL 113799, at *1 (E.D. Cal. Jan. 13, 2012); Womack, 2011 WL 6703958, at 27 *3; Mitchell v. Felker, No. CV 08-119RAJ, 2010 WL 3835765, at *2 (E.D. Cal. Sep. 29, 2010); Ellis v. 28 Cambra, No. 1:02-cv-05646-AWI-SMS PC, 2008 WL 860523, at *4 (E.D. Cal. Mar. 27, 2008). This 1 requires the moving party to inform the Court which discovery requests are the subject of the motion to 2 compel, and, for each disputed response, why the information sought is relevant and why the responding 3 party=s objections are not meritorious. Grabek, 2012 WL 113799, at *1; Womack, 2011 WL 6703958, 4 at *3; Mitchell, 2010 WL 3835765, at *2; Ellis, 2008 WL 860523, at *4. However, the Court is vested 5 with broad discretion to manage discovery and notwithstanding these procedures, Plaintiff is entitled to 6 leniency as a pro se litigant; therefore, to the extent possible, the Court endeavors to resolve his motion 7 to compel on its merits. Hunt v. County of Orange, 672 F.3d 606, 616 (9th Cir. 2012); Surfvivor Media, 8 Inc. v. Survivor Productions, 406 F.3d 625, 635 (9th Cir. 2005); Hallett v. Morgan, 296 F.3d 732, 751 9 (9th Cir. 2002). 10 III. 11 DISCUSSION 12 A. Plaintiff’s Motion to Compel is Defective and Untimely 13 Plaintiff seeks to compel Defendants to respond to his first set of document requests. (ECF 14 No. 55 at 1, 4-5.) However, Plaintiff failed to serve Defendants with his request of production of 15 documents. Indeed, the proof of service indicates that he only served his request for production of 16 documents on the United States District Court, not on Defendants. (Id. at 6.) Defendants submit that 17 they only became aware of Plaintiff’s document requests after they reviewed the electronically-filed 18 copy of Plaintiff’s instant motion to compel which attached a copy of the document requests as an 19 exhibit. (Declaration of Brian S. Chan (Chan Decl.) ¶ 2, ECF No. 58-1.) 20 Furthermore, even if Plaintiff had served Defendants with his discovery requests, the request is 21 untimely and an objection thereto would have been raised. (Chan Decl. ¶ 5.) Pursuant to the Court’s 22 discovery and scheduling order, the deadline for completion of all discovery including motions to 23 compel expired on November 6, 2019. (ECF No. 37.). Plaintiff’s discovery requests are dated 24 January 15, 2020, over two months after the discovery deadline expired. (ECF No. 55 at 6.) As stated 25 in the Court’s discovery and scheduling order, “discovery requests … must be served sufficiently in 26 advance of the discovery deadline to permit time for a response and time to prepare and file a motion 27 to compel.” (ECF No. 37 at 2.) Accordingly, Plaintiff did not timely file a motion to compel or timely 28 serve Defendants with his discovery request and the instant motion must be denied. 1 B. Plaintiff’s Request for Deposition Transcript is Defective 2 In his motion, Plaintiff also requests a copy of the transcript from his November 5, 2019 3 || deposition. (ECF No. 55 at 1.) 4 Pursuant to Federal Rule of Civil Procedure 30, a party may obtain a copy of the deposition 5 || transcript upon reasonable payment of fees, and Plaintiff's in forma pauperis status does not entitle 6 || him to a free copy. Fed. R. Civ. P. 30(f)(3); see also Vanderbusch v. Chokatos, No. 1:13-cv-01422- 7 || LJO-EPG, 2018 WL 3031488, at *2 (E.D. Cal. June 15, 2018) (denying plaintiffs request for court t 8 || order defendants provide him copy of deposition transcript) (citing Boston v. Garcia, No. 2:10-cv- 9 ||01782 KJM DAD, 2013 WL 1165062, at *2 (E.D. Cal. Mar. 20, 2013) (same)). In addition, a plainti 10 || cannot obtain a copy of his deposition transcript free of chare by way of request for production. See, 11 |/e.g., Joseph v. Parciasepe, No. 2:14-cv-0414 GEB AC P, 2016 WL 2743448, at *4 (E.D. Cal. May 11 12 || 2016) (denying motion to compel production of a free copy of deposition transcript). A plaintiff mus 13 || obtain deposition transcripts from the officer before whom the deposition was taken—a court reporte: 14 || or deposition officer. See Claiborne v. Battery, No. CIV S-06-2919 FCD EFB P, 2009 WL 530352, : 15 || *3 (E.D. Cal. Mar. 3, 2009) (denying plaintiffs request for a court order directing the defendant to 16 || provide him with a copy of his deposition transcript). Accordingly, Plaintiff's request for a free copy 17 || of the deposition transcript is denied as both procedurally and substantively defective. 18 IV. 19 ORDER 20 Based on the foregoing, it is HEREBY ORDERED that Plaintiffs motion to compel a 21 response to his discovery requests and a free copy of the deposition transcript is DENIED. 22 23 ||} IT IS SO ORDERED. A (ee 24 |! Dated: _ February 27, 2020 OF 25 UNITED STATES MAGISTRATE JUDGE 26 27 28