(PC) Langley v. Garcia ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RANDY LANGLEY, Case No.: 1:16-cv-01299-LJO-JLT (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTIONS TO COMPEL AND 13 v. DIRECTING PLAINTIFF TO SHOW CAUSE WHY AWARD OF EXPENSES 14 E. GARCIA; G. COOK, SHOULD NOT BE IMPOSED 15 Defendants. (Docs. 39, 41) 16 17 Before the Court are Plaintiff’s motions to compel discovery responses. In his first 18 motion, Plaintiff requests “production of original video/audio tapes/CDs/electronically stored 19 evidence.” (Doc. 39.) The court construes this as a motion to compel under Federal Rule of Civil 20 Procedure 37. In his second motion, Plaintiff seeks an order compelling Defendants’ responses to 21 requests for production.1 (Doc. 41.) Although Plaintiff attempts to bring this motion under Rule 22 26, (see id. at 1), the Court construes it as a motion brought under Rule 37. Defendants filed 23 oppositions to the motions on August 5, 2019, and August 26, 2019. (Docs. 40, 42.) Plaintiff has 24 not filed a reply to either opposition, and the time to do so has passed. See Local Rule 230(l). For 25 the reasons set forth below, the Court denies Plaintiff’s motions. 26 1 Plaintiff also seeks an extension of time in his second motion. (See Doc. 41 at 1, 3.) Plaintiff does not state what 27 specific deadline he wishes to postpone, (see id.); thus, the Court is unsure for what matter Plaintiff seeks additional time. In any event, the Court granted Plaintiff’s request for a stay on October 28, 2019, staying all proceedings in this 1 I. LEGAL STANDARDS 2 Parties may seek “discovery regarding any nonprivileged matter that is relevant to any 3 party’s claim or defense and proportional to the needs of the case….” Fed. R. Civ. P. 26(b)(1). 4 Information “need not be admissible in evidence to be discoverable.” Id. Within this general 5 scope, a party may serve on any other party an interrogatory or a request to produce documents, 6 electronically stored information, or tangible things that are in the responding party’s possession, 7 custody, or control. Fed. R. Civ. P. 33(a), 34(a)(1). “Property is deemed within a party’s 8 ‘possession, custody, or control’ if the party has actual possession, custody, or control thereof or 9 the legal right to obtain the property on demand.” Allen v. Woodford, No. 1:05-cv-01104-OWW- 10 LJO, 2007 WL 309945, at *2 (E.D. Cal. 2007) (citation omitted). The responding party must 11 reply to the interrogatory or request within 30 days after being served. Fed. R. Civ. P. 33(b), 12 34(b)(2). The responding party must answer each interrogatory or state that he will produce the 13 requested documents, information, or things; or, the party must “state with specificity” the 14 grounds for objecting to the interrogatory or request. Id. 15 If a party fails to answer to an interrogatory or to produce documents as requested, the 16 party seeking discovery may file a motion with the Court to compel a response. Fed. R. Civ. P. 17 37(a)(3)(B). The moving party must “state the relief sought” and provide “with particularity the 18 grounds for seeking” the relief. Fed. R. Civ. P. 7(b)(1). Generally, the moving party must certify 19 that she has conferred or attempted to confer in good faith with the responding party to resolve 20 the dispute without court action. Fed. R. Civ. P. 37(a)(1); Local Rule 251(b). However, in 21 prisoner cases involving pro se plaintiffs, the meet-and-confer requirements of Rule 37 and Local 22 Rule 251 do not apply, though they are still encouraged. (See Doc. 32 at 2.) 23 II. DISCUSSION 24 a. Plaintiff’s Motions to Compel 25 In February 2019, Plaintiff served on Defendants interrogatories, requests for production, 26 and requests for admission. (Doc. 42 at 2.) Defendants timely responded to Plaintiff’s discovery 27 requests in April 2019. (Id.; see also Doc. 36 at 1.) 1 containing seven videos of the incident underlying this action. (Myers Decl. No. 1, ¶ 2, Doc. 40-1 2 at 1.) Plaintiff concedes that he received the CD, but “[i]t is [his] belief [c]ounsel … and/or 3 defendants deliberately distorted images in order to prevent proper viewing.” (Doc. 39 at 2.) 4 Plaintiff further contends that the defense “knowingly withheld” additional security footage. (Id.) 5 Plaintiff requests that the Court order Defendants to provide the Court “the original security 6 footage, in its original form,” as well as the footage allegedly withheld, “for veiwing [sic] to 7 determine the validity and authenticity” of the videos. (Id. at 2-3.) 8 In his sworn declaration, Tulare County Assistant Sheriff Keith Douglass states that he 9 provided Tulare County Counsel with all videos of the incident that he found while conducting a 10 diligent search. (Douglass Decl., ¶¶ 3-4, 7-8, Doc. 40-2 at 2.) He states that he produced the 11 videos in their original format, and none were manipulated or distorted. (Id., ¶¶ 5-6.) In her sworn 12 declaration, Defendants’ counsel, Amy Myers, states that she placed the videos on a CD, per the 13 instructions of Valley State Prison, and her office produced the videos in their original format. 14 (Myers Decl. No. 1, ¶¶ 3-5, Doc. 40-1 at 2.) She states that neither she nor anyone in her office 15 manipulated or distorted the videos. (Id., ¶ 5.) Plaintiff did not file a reply to Defendants’ 16 opposition and supporting declarations. 17 In his second motion, Plaintiff requests the following “information withheld”: “security 18 footage in [its] original state unedited,” two additional “camera positions,” and internal affairs 19 (IA) investigation reports regarding the incident underlying this action. (Doc. 41 at 1.) In their 20 opposition, Defendants state that they “fully responded to each of Plaintiff’s demands and 21 produced all records in their possession, custody and control.” (Doc. 42 at 2.) Plaintiff again did 22 not file a reply to Defendants’ opposition and supporting declaration. 23 Defendants argue that Plaintiff does not provide “the basis of his allegations that 24 Defendants have purposefully altered and/or withheld evidence, nor how Defendants have been 25 evasive or noncompliant.” (Doc. 42 at 6.) The Court agrees. In his first motion, Plaintiff provides 26 no facts to support his allegations that Defendants distorted the videos they produced and 27 withheld additional footage of the incident, and he provides no evidence to counter the 1 videos were altered or withheld to “discredit [his] case.” (See Doc. 39 at 2.) Such self-serving 2 belief is inadequate for a motion to compel. 3 In his second motion, Plaintiff again provides no facts or evidence to support his 4 allegations that Defendants altered videos and withheld footage and IA reports. Moreover, 5 Plaintiff does not include with his motion Defendants’ responses to the discovery requests at 6 issue, nor does he contend that such responses were evasive. Rather, Plaintiff simply asserts that 7 Defendants withheld videos and reports, without stating the grounds for such assertions. (See 8 Doc. 41 at 1.) Such bare assertions, without more, are inadequate for a motion to compel. See 9 Daniel F. v. Blue Shield of California, 305 F.R.D. 115, 122–23 (N.D. Cal. 2014) (“The court does 10 not consider any arguments based on factual assertions that are unsupported by evidence.”) 11 b. Defendants’ Requests for Attorney’s Fees 12 Defendants request that Plaintiff pay the reasonable expenses incurred in opposing 13 Plaintiff’s motions, pursuant to Federal Rule of Civil Procedure 37(a)(5). (Doc. 40 at 4-5; Doc. 42 14 at 10-11.) Defendants’ counsel states that her hourly rate is $110, and that she expended 4 hours 15 preparing Defendants’ opposition to Plaintiff’s first motion and 8 hours preparing their opposition 16 to Plaintiff’s second motion. (Myers Decl. No. 1, ¶ 8, Doc. 40-1 at 2; Myers Decl. No. 2, ¶ 9, 17 Doc. 42-1 at 2-3.) Defendants thus request $1,320 in reasonable expenses. (See Doc. 40 at 5; Doc. 18 42 at 11; Defs.’ Mem. of Costs., Doc. 42-2.) 19 Rule 37 provides that, if the Court denies a motion to compel, it “must, after giving an 20 opportunity to be heard, require the movant … to pay the party … who opposed the motion its 21 reasonable expenses incurred in opposing the motion, including attorney’s fees.” Fed. R. Civ. P. 22 37(a)(5)(B) (emphasis added). Thus, because the Court denies Plaintiff’s motions to compel, an 23 award of costs is mandatory, unless the Court finds that Plaintiff’s motions were “substantially 24 justified or other circumstances make an award of expenses unjust.” Id. Accordingly, the Court 25 will provide Plaintiff an opportunity to be heard before deciding whether an award of costs is 26 mandated. 27 /// 1 III. CONCLUSION AND ORDER 2 For the reasons set forth above, the Court ORDERS: 3 1. Plaintiff’s motions to compel discovery responses, (Docs. 39, 41), are DENIED; 4 2. Plaintiff shall show cause by February 14, 2020,2 why an award of expenses should 5 not be imposed. 6 IT IS SO ORDERED. 7 8 Dated: January 7, 2020 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27