(PC) Bradford v. Usher ( 2021 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 RAYMOND ALFORD BRADFORD, ) Case No.: 1:17-cv-01128-SAB (PC) ) 9 Plaintiff, ) 10 v. ) ) O PRR OD TE ER C D TE IVN EY OIN RG D P EL RA TI ON T SI TF AF’ YS DM EO PT OI SO IN TI F OO NR , AND DENYING MOTION FOR TEMPORARY 11 C. OGBUEHI, et al. ) RESTRAINING ORDER ) 12 Defendants. ) (ECF No. 106) ) 13 ) 14 Plaintiff Raymond Alford Bradford is a state prisoner proceeding pro se and in forma pauperis 15 in this civil rights action pursuant to 42 U.S.C. § 1983. 16 The parties have consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c)(1). 17 (ECF No. 35.) 18 Currently before the Court is Plaintiff’s motion for a protective order, motion to stay his 19 deposition, and motion for a temporary restraining order, filed April 26, 2021. 20 I. 21 RELEVANT BACKGROUND 22 This action is proceeding on Plaintiff’s claim against Defendants German, Ulit, Spaeth, and 23 Sao for violation of the Eighth Amendment based on Plaintiff’s allegations related to Valley Fever. 24 (ECF No. 21 at 3.) 25 On February 20, 2020, the Court denied the previous eight motions for summary judgment 26 filed by Plaintiff. (ECF No. 58.) 27 On May 5, 2020, Defendants filed an answer to the complaint. (ECF No. 65.) 28 On May 12, 2020, the Court issued the discovery and scheduling order. (ECF No. 64.) 1 On June 2, 2020, the Court set this case for a settlement conference before Magistrate Judge 2 Barbara A. McAuliffe on September 22, 2020, at 9:30 a.m., and stayed the case. (ECF No. 71.) 3 After the case did not settle, the Court issued an amended discovery and scheduling order on 4 September 23, 2020. 5 On December 22, 2020, Defendants Usher and Rimbach filed a motion for summary judgment 6 for failure to exhaust the administrative remedies. Plaintiff filed an opposition on February 24, 2021, 7 and Defendants filed a reply on March 1, 2021. 8 On March 17, 2021, the undersigned granted Defendants Usher and Rimbach’s motion for 9 summary judgment, and the claims against them were dismissed, without prejudice, for failure to 10 exhaust the administrative remedies. (ECF No. 101.) 11 II. 12 DISCUSSION 13 A. Motion for Protective Order to Stay Deposition 14 The Court is vested with broad discretion to manage discovery. Dichter-Mad Family Partners, 15 LLP v. U.S., 709 F.3d 749, 751 (9th Cir. 2013) (per curiam); Surfvivor Media, Inc. v. Survivor Prods., 16 406 F.3d 625, 635 (9th Cir. 2005); Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). 17 Pursuant to Rule 26(c)(1), the Court may, for good cause, issue a protective order forbidding or 18 limiting discovery. The avoidance of undue burden or expense is grounds for the issuance of a 19 protective order, Fed. R. Civ. P. 26(c), and a stay of discovery pending resolution of potentially 20 dispositive issues furthers the goal of efficiency for the courts and the litigants, Little v. City of 21 Seattle, 863 F.2d 681, 685 (9th Cir. 1988) (stay of discovery pending resolution of immunity issue). 22 Options available to the court include, among other things, forbidding the disclosure or discovery, 23 forbidding inquiry into certain matters or limiting the scope of disclosure or discovery to certain 24 matters. Id. 25 District courts have broad discretion to determine whether a protective order is appropriate 26 and, if so, what degree of protection is warranted. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 27 (1984); see also Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1211–12 (9th 28 Cir. 2002) (finding that the law gives district courts broad latitude to grant protective orders to prevent 1 disclosure of materials for many types of information). The party seeking to limit discovery has the 2 burden of proving “good cause,” which requires a showing “that specific prejudice or harm will result” 3 if the protective order is not granted. In re Roman Catholic Archbishop of Portland, 661 F.3d 417, 424 4 (9th Cir. 2011) (citing Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1130 (9th Cir. 2003)); 5 Westmoreland v. Regents of the Univ. of Cal., No. 2:17-cv-01922-TLN-AC, 2019 WL 932220, at *3 6 (E.D. Cal. Feb. 26, 2019). 7 Depositions are governed by Federal Rule of Civil Procedure 30, which states in pertinent part 8 that “[a] party may, by oral questions, depose any person, including a party, without leave of court....”1 9 Fed. R. Civ. P. 30(a)(1). Deposition questions may relate to “any nonprivileged matter that is relevant 10 to any party's claim or defense.” Fed. R. Civ. P. 26(b)(1). A witness is required to answer as to matters 11 within his or her own knowledge. A failure to participate in discovery is in violation of Fed. R. Civ. P. 12 30 and 37. Under Rule 30(d)(2), the court may impose sanctions for impeding, delaying, or frustrating 13 the fair examination of the deponent. 14 Plaintiff states that on April 13, 2021, he received Defendants’ notice of deposition via video 15 conference to take place on May 10, 2021, at 9:00 a.m. Plaintiff seeks a protective order because he 16 has safety concerns and fear of continuous retaliation by prison officials. Plaintiff’s speculative fear of 17 retaliation, without more, does not relieve him of the obligation to participate in his deposition as 18 required by the Federal Rules of Civil Procedure. Indeed, Plaintiff references incidents which took 19 place at different facilities and by individuals who are not Defendants in this action. Further, 20 Plaintiff’s vague claim that he does not have access to his legal property, alone, does not relieve him 21 of his obligation to participate in his deposition. Plaintiff fails to set forth what and why access to his 22 legal property is necessary to participate in his deposition. Thus, the Court finds that Plaintiff's 23 allegation that he cannot participate in a deposition because he does not have access to all the 24 documents he needs is not sufficient to show that he should not be compelled to attend a deposition. 25 See Smith v. Chanelo, No. 1:18-cv-1356 NONE BAM (PC), 2020 WL 1288402 at *5 (E.D. Cal. Ma. 26 18, 2020) (stating that plaintiff must still attend a properly noticed deposition even if through no fault 27 of his own he does not have his legal papers). In addition, Plaintiff provides no reason why his 28 deposition should be stayed until Defendants have responded to his purported discovery requests. 1 Plaintiff brought this civil action and Defendants are clearly entitled to take his deposition. It appears 2 that Plaintiff is simply unreasonably refusing to cooperate in that regard. There is no indication in the 3 instant motion that a lack of legal documentation or preparation will prevent Plaintiff from being 4 deposed. Plaintiff is informed that he is required to appear at a properly noticed deposition and 5 respond to questions by Defendants’ counsel. In answering questions, Plaintiff is not required to 6 speculate or guess, although he may be asked to give an estimate of matters where estimates are 7 commonly made (e.g., distance, size, weight, etc.). Plaintiff may review documents or other evidence 8 available at the deposition for the purpose of refreshing his memory. If Plaintiff does not have his 9 legal papers, through no fault of his own, he is informed he must still appear for a properly noticed 10 deposition. Plaintiff is advised that if he fails to cooperate with discovery, this action may be subject 11 to terminating sanctions due to plaintiff's failure to obey a court order and failure to cooperate in 12 discovery. See Fed. R. Civ. P. 37(b)(2)(a)(v). Accordingly, Plaintiff’s motion for a protective order to 13 stay the taking of his deposition shall be denied. 14 B. Motion for Temporary Restraining Order 15 A temporary restraining order may be issued upon a showing “that immediate and irreparable 16 injury, loss, or damage will result to the movant before the adverse party can be heard in opposition.” 17 Fed. R. Civ. P. 65(b)(1)(A). The purpose of such an order is to preserve the status quo and to prevent 18 irreparable harm “just so long as is necessary to hold a hearing, and no longer.” Granny Goose Foods, 19 Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 439 (1974). “The standards for granting a temporary 20 restraining order and a preliminary injunction are identical.” Haw. County Green Party v. Clinton, 980 21 F. Supp. 1160, 1164 (D. Haw. 1997); cf. Stuhlbarg Int'l Sales Co. v. John D. Brush & Co., 240 F.3d 22 832, 839 n.7 (9th Cir. 2001) (observing that an analysis of a preliminary injunction is “substantially 23 identical” to an analysis of a temporary restraining order). 24 A preliminary injunction will not issue unless necessary to prevent threatened injury that 25 would impair the court's ability to grant effective relief in a pending action. Sierra On-Line, Inc. v. 26 Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984); Gon v. First State Ins. Co., 871 F.2d 863 27 (9th Cir. 1989). A preliminary injunction represents the exercise of a far reaching power not to be 28 indulged except in a case clearly warranting it. Dymo Indus. v. Tapeprinter, Inc., 326 F.2d 141, 143 1 (9th Cir. 1964). To be entitled to preliminary injunctive relief, a party must demonstrate “that he is 2 likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of 3 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public 4 interest.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural 5 Res. Def. Council, Inc., 555 U.S. 7 (2008)). The Ninth Circuit has also held that the “sliding scale” 6 approach it applies to preliminary injunctions—that is, balancing the elements of the preliminary 7 injunction test, so that a stronger showing of one element may offset a weaker showing of another— 8 survives Winter and continues to be valid. Alliance for the Wild Rockies v. Cottrell, 622 F.3d 1045, 9 1050 (9th Cir. 2010). “In other words, ‘serious questions going to the merits,’ and a hardship balance 10 that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two 11 elements of the Winter test are also met.” Id. In cases brought by prisoners involving conditions of 12 confinement, any preliminary injunction “must be narrowly drawn, extend no further than necessary to 13 correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary 14 to correct the harm.” 18 U.S.C. § 3626(a)(2). 15 Plaintiff seeks a temporary restraining order to place a medical hold so that he will remain 16 housed in the crisis unit until discovery issues and the deposition conference is complete. Plaintiff 17 fails to meet the standard for injunctive relief. This action proceeds on claims which took place at 18 Kern Valley State Prison. Plaintiff is currently housed at the California Health Care Facility (and 19 previously housed at Salinas Valley State Prison), and his current request involves neither Kern Valley 20 State Prison nor the named defendants. Because Plaintiff's motion addresses conduct that is not a 21 subject of this civil action, it does not demonstrate either a likelihood of success or a serious question 22 going to the merits of his complaint. Also significant is that Plaintiff fails to show that he will suffer 23 imminent and irreparable harm in the absence of the requested relief. Indeed, Plaintiff has provided no 24 evidence that any alleged transfer is imminent, his contentions of potential future injury are no more 25 than speculative and are therefore insufficient to demonstrate a risk of immediate and irreparable 26 injury. Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (“Speculative 27 injury does not constitute irreparable injury sufficient to warrant granting a preliminary injunction.” 28 (citing Goldie's Bookstore, Inc. v. Superior Court, 739 F.2d 466, 472 (9th Cir. 1984))). Further, 1 || Convicted prisoners have no reasonable expectation that they will remain in any particular facility, ar 2 || prison officials have broad authority to transfer prisoners from one facility to another. Meachum v. 3 || Fano, 427 U.S. 215, 225, 228 (1976). “An inmate's liberty interests are sufficiently extinguished by h 4 || conviction so that the state may change his place of confinement even though the degree of 5 || confinement may be different and prison life may be more disagreeable in one institution than in 6 || another.” Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir. 1985) (citing Meachum, 427 U.S. at 224—25; 7 || Olim v. Wakinekona, 461 U.S. 238, 245 (1982)). Thus, the possibility of transfer alone is not 8 || sufficient to demonstrate an irreparable harm. Accordingly, Plaintiff's motion for a temporary 9 || restraining order shall be denied. 10 Il. 11 CONCLUSION AND ORDER 12 Based on the foregoing, it is HEREBY ORDERED that: 13 1. Plaintiff's motion for a protective order to stay his deposition is denied; and 14 2. Plaintiff's motion for a temporary restraining order is denied. 15 16 ||IT IS SO ORDERED. A (Fe _ 17 | Dated: _ April 27, 2021 OF 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28