(PC) Bowell v. Montoya ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES BOWELL, 1:17-cv-00605-NONE-GSA-PC 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO COMPEL, WITHOUT 13 vs. PREJUDICE (ECF No. 70.) 14 F. MONTOYA, et al., 15 Defendants. 16 17 18 19 20 I. BACKGROUND 21 James Bowell (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 22 with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff’s 23 First Amended Complaint, filed on May 3, 2018, against defendants Montoya and Carter for 24 violation of due process under the Fourteenth Amendment, and against defendants Killmer and 25 Lopez for conspiracy to place Plaintiff at risk of serious harm and failure to protect Plaintiff under 26 the Eighth Amendment. (ECF No. 16.)1 This case is now in the discovery phase. 27 28 1 On October 25, 2018, the court issued an order dismissing all other claims and defendants from this case, for Plaintiff’s failure to state a claim. (ECF No. 20.) 1 On July 8, 2020, Plaintiff filed a motion to compel production of “Donovan’s current 2 visiting restriction.” (ECF No. 70.) 3 II. MOTION TO COMPEL 4 A. Legal Standards 5 The Federal Rules of Civil Procedure govern discovery in this civil action. The discovery 6 process is subject to the overriding limitation of good faith, and callous disregard of discovery 7 responsibilities cannot be condoned. Asea, Inc. v. Southern Pac. Transp. Co., 669 F.2d 1242, 8 1246 (9th Cir. 1981) (quotation marks and citation omitted). Parties may obtain discovery 9 regarding any nonprivileged matter that is relevant to any party’s claim or defense, including the 10 existence, description, nature, custody, condition, and location of any documents or other 11 tangible things and the identity and location of persons who know of any discoverable matter. 12 Fed. R. Civ. P. 26(b)(1) (quotation marks omitted). For good cause, the court may order 13 discovery of any matter relevant to the subject matter involved in the action. Id. (quotation 14 marks omitted). Relevant information need not be admissible at the trial if the discovery appears 15 reasonably calculated to lead to the discovery of admissible evidence. Id. (quotation marks 16 omitted). 17 Pursuant to Rule 37(a) of the Federal Rules of Civil Procedure, a party propounding 18 discovery may seek an order compelling disclosure when an opposing party has failed to respond 19 or has provided evasive or incomplete responses. Fed. R. Civ. P. 37(a)(3)(B). “[A]n evasive or 20 incomplete disclosure, answer, or response is to be treated as a failure to disclose, answer, or 21 respond.” Fed. R. Civ. P. 37(a)(4). The moving party bears the burden of demonstrating “actual 22 and substantial prejudice” from the denial of discovery. See Hallett v. Morgan, 296 F.3d 732, 23 751 (9th Cir. 2002) (citations omitted). 24 Generally, if the responding party objects to a discovery request, the party moving to 25 compel bears the burden of demonstrating why the objections are not justified. E.g., Grabek v. 26 Dickinson, No. CIV S-10-2892 GGH P, 2012 WL 113799, at *1 (E.D. Cal. Jan. 13, 2012); 27 Womack v. Virga, No.CIV S-11-1030 MCE EFB P, 2011 WL 6703958, at *3; Mitchell v. Felker, 28 No. CV 08-119RAJ, 2010 WL 3835765, at *2 (E.D. Cal. Sep. 29, 2010); Ellis v. Cambra, No. 1 1:02-cv-05646-AWI-SMS PC, 2008 WL 860523, at *4 (E.D. Cal. Mar. 27, 2008). This requires 2 the moving party to inform the court which discovery requests are the subject of the motion to 3 compel, and, for each disputed response, why the information sought is relevant and why the 4 responding party’s objections are not meritorious. Id. However, the court is vested with broad 5 discretion to manage discovery and notwithstanding these procedures, and Plaintiff is entitled to 6 leniency as a pro se litigator; therefore, to the extent possible, the court endeavors to resolve his 7 motion to compel on its merits. Hunt v. County of Orange, 672 F.3d 606, 616 (9th Cir. 2012); 8 Surfvivor Media, Inc. v. Survivor Productions, 406 F.3d 625, 635 (9th Cir. 2005); Hallett, 296 9 F.3d at 751. 10 B. Plaintiff’s Motion 11 Plaintiff requests a court order compelling the production of “Donovan’s current visiting 12 restriction.” (ECF No. 70.) 13 C. Discussion 14 In the order issued concurrently with this order, the court discussed the procedure for 15 Plaintiff to bring a motion to compel and denied his motion to compel without prejudice. The 16 court’s discussion also applies here. Plaintiff may not bring a motion to compel until after he has 17 already served a discovery request on the Defendants and awaited a response. As before, Plaintiff 18 has not alleged that he served Defendants with request for production of documents and awaited 19 a response before bringing the motion to compel. Consequently, Plaintiff’s motion to compel 20 shall be denied, without prejudice to renewal of the motion at a later stage of the proceedings. 21 Plaintiff is again advised that any future motion to compel must individually analyze each 22 discovery request and response and set forth arguments to explain how Defendants’ objections 23 to each request are deficient or improper. Plaintiff’s motion to compel must notify Defendants 24 how each response is deficient. Specifically, the motion to compel must: 1) set forth each 25 disputed request exactly as Plaintiff phrased it in his original request, 2) set forth Defendants’ 26 response exactly as Defendants phrased it in their original response, and 3) address each objection 27 made by Defendants and explain how each objection is improper. Plaintiff may not raise his 28 arguments for the first time in his reply brief, and may not simply file a motion to compel that 1 identifies the discovery requests in dispute and provide only vague and general conclusions 2 regarding the inadequacy of Defendants’ responses. 3 As the moving party, Plaintiff bears the burden of informing the court which discovery 4 requests are the subject of his motion to compel and, for each disputed response, why 5 Defendants’ objection is not justified. Plaintiff may not simply assert that he wants an order 6 compelling responses. 7 Plaintiff’s motion to compel shall be denied as procedurally defective, without prejudice 8 to renewal of the motion at a later stage of the proceedings. 9 III. CONCLUSION 10 Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion to compel, 11 filed on July 8, 2020, is DENIED as procedurally defective, without prejudice to renewal of the 12 motion at a later stage of the proceedings. 13 IT IS SO ORDERED. 14 15 Dated: July 10, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28