(PC) Turner v. Zepp ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 VINCENT TURNER, Case No. 1:20-cv-00184-AWI-EPG (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTIONS REQUESTING MISCELLANEOUS RELIEF 13 v. (ECF Nos. 77, 79, 80, 81, 85, 96, 97, 100) 14 ANDREW ZEPP, et al., ORDER GRANTING PLAINTIFF LEAVE TO 15 Defendants. FILE SUPPLEMENTAL BRIEFING IN OPPOSITION TO DEFENDANTS’ MOTIONS 16 FOR SUMMARY JUDGMENT 17 THIRTY (30) DAY DEADLINE 18 Plaintiff Vincent Turner is proceeding pro se and in forma pauperis in this civil rights 19 action pursuant to 42 U.S.C. § 1983. 20 I. BACKGROUND 21 A. Screening, Service, and Scheduling Order 22 Plaintiff filed a complaint against Defendants Andrew Zepp and Khaled A. Tawansy 23 (“Defendants”) on January 31, 2020. (ECF No. 1.) The complaint alleges that, following sinus 24 surgery, he told Defendant Zepp he was experiencing pain and needed to be seen right away. (Id.) 25 Plaintiff did not receive treatment for several days, resulting in a significant infection, pain, 26 swelling, permanent injury, and loss of facial bone. (Id.) 27 On June 23, 2020, the Court issued a screening order finding that the complaint stated a 28 cognizable claim against Defendants for deliberate indifference to serious medical needs in 1 violation of the Eighth Amendment. (ECF No. 15.) The same day, the Court issued an order 2 finding service of the complaint appropriate. (ECF No. 16.) The Court ordered service to proceed 3 under the Court’s E-Service pilot program and, on June 30, 2020, the California Department of 4 Corrections returned a notice of intent not to waive service as to Defendant Tawansy. (ECF No. 19.) Service documents for Defendant Tawansy were forwarded to the United States Marshal 5 Service consistent with the Court’s service order. 6 On August 28, 2020, the Court entered an order setting a mandatory Initial Scheduling 7 Conference and directing the parties to exchange initial disclosures. (ECF No. 26.) On September 8 17, 2020, the Court received a letter dated September 11, 2020, from Defendant Tawansy 9 appearing pro se. (ECF No. 29.) The letter contained information that constituted a response to 10 the complaint and also set forth Defendant Tawansy’s current address. (Id.) The Court entered an 11 order on November 23, 2020 which, among other things, directed the Clerk of Court to update the 12 docket and serve Defendant Tawansy with the Court’s August 28, 2020 order, and further 13 extended the deadline for Defendant Tawansy to provide his initial disclosures. (Id.) 14 B. First Order to Show Cause Re: Defendant Tawansy and Plaintiff’s Motion for 15 Default Judgment 16 On February 1, 2021, the Court held an Initial Scheduling Conference. (ECF No. 39.) 17 Plaintiff attended telephonically, and Defendants failed to appear. (Id.). During the conference, 18 the Court explained that it would issue an order to show cause and give Defendants a chance to 19 explain why they did not appear. The Court also explained that discovery was open, described the 20 types of discovery available to the parties and the process for Plaintiff to obtain third party 21 subpoenas, and discussed the deadlines to complete non-expert discovery and to file motions to 22 compel.1 The Court entered a Scheduling Order on February 2, 2021, which set forth the 23 deadlines of July 19, 2021 for filing motions to compel and October 2, 2021 for completing non- expert discovery. (ECF No. 40.) 24 On February 5, 2021, the Court issued an order to show cause why Defendant Tawansy 25 should not be sanctioned.2 (ECF No. 43.) Defendant Tawansy was cautioned that sanctions could 26 27 1 This transcription is unofficial and based on the audio file, which is available to the parties upon request. 2 The Court issued an order for Defendant Zepp’s counsel to show cause why he should not be sanctioned on 28 February 2, 2021, and Defendant Zepp’s counsel filed a written response on February 5, 2021. (ECF Nos. 41, 44.) 1 include a recommendation that his answer be stricken and default be entered against him. (Id.) 2 Defendant Tawansy did not respond to the order to show cause. 3 Although the Marshal was previously directed to effect service on Defendant Tawansy, no 4 return of service was filed. (See ECF No. 16.) Thus, on March 18, 2021, the Court directed the Marshal to again serve Defendant Tawansy with the summons and complaint. (ECF No. 49; see 5 also ECF No. 52.) 6 On April 1, 2021, Plaintiff filed a request that the Court enter default against Defendant 7 Tawansy and strike his answer. (ECF No. 53.) On April 5, 2021, Plaintiff filed a motion 8 requesting that default judgment be entered against Defendant Tawansy (ECF No. 54.) The Court 9 entered an order on April 8, 2021, denying Plaintiff’s request for entry of default and motion for 10 default judgment. (ECF No. 55.) The Court explained that it was required to determine whether 11 Defendant Tawansy was properly served with the summons and complaint before entering default 12 judgment. (Id.) As explained in the Court’s prior orders, no return of service had been filed for 13 Defendant Tawansy and the process of serving him again was still ongoing. (Id.) However, 14 Plaintiff was advised that, if an order issued striking Defendant Tawansy’s answer and entering 15 default, Plaintiff could file a later motion for default judgment. (Id.) 16 The Marshal filed a return of service on April 16, 2021, and Defendant Tawansy, 17 appearing through counsel, filed an answer on May 20, 2021. (ECF Nos. 58, 59.) In light of 18 counsel’s appearance in the matter, on May 24, 2021, the Court discharged the order to show 19 cause as to Defendant Tawansy and further directed him to provide initial disclosures and 20 produce specified categories of documents. (ECF No. 61.) 21 C. Second Order to Show Cause Re: Defendant Tawansy 22 On July 19, 2021, Plaintiff filed a motion to compel stating that he had not received initial 23 disclosures or documents from Defendant Tawansy pursuant to the Court’s May 24, 2021 order. (ECF No. 62.) On July 21, 2021, the Court entered an order directing Defendant Tawansy to 24 respond to Plaintiff’s motion to compel. (ECF No. 63.) On July 28, 2021, Defendant Tawansy 25 filed a copy of his initial disclosures and a proof of service stating they were served on Plaintiff 26 27 The order to show cause as to Defendant Zepp’s counsel was discharged on February 8, 2021. (ECF No. 45.) 28 1 by U.S. Mail the same day. (ECF No. 64.) On August 30, 2021, the Court entered an order 2 denying Plaintiff’s motion as to the initial disclosures. (ECF No. 65.) Because Defendant 3 Tawansy’s response did not address whether he had produced the documents he was ordered to 4 produce, the Court directed Defendant Tawansy to certify his compliance with the May 24, 2021 order. (Id.) Defendant Tawansy failed to file the requested certification by the applicable 5 deadline. 6 On October 5, 2021, the Court entered an order requiring Defendant Tawansy to show 7 cause why he should not be sanctioned for failure to comply with the Court’s orders. (ECF No. 8 69.) On October 11, 2021, Defendant Tawansy’s counsel filed a declaration representing that 9 Defendant Tawansy was not in possession of all the documents described in the May 24, 2021 10 order at the time Defendant Tawansy filed his initial disclosures. (ECF No. 70.) Defendant 11 Tawansy subsequently obtained more than 6,000 pages of documents and produced them to 12 Plaintiff concurrently with counsel’s declaration. (Id.) In light of Defendant Tawansy’s counsel’s 13 declaration, the Court discharged the order to show cause on October 19, 2021. (ECF No. 71.) 14 D. Defendants’ Motions for Summary Judgment 15 On October 28, 2021, Defendant Tawansy filed a motion for summary judgment. (ECF 16 No. 72.) On November 1, 2021, Defendant Zepp filed a motion for summary judgment. (ECF No. 17 74.) Defendants argue that Plaintiff cannot establish that they were deliberately indifferent to a 18 serious medical need. (See ECF Nos. 72, 74.) 19 On November 12, 2021, Plaintiff filed a document titled “Plaintiff Defense Against the 20 Summary Judgment.” (ECF No. 78.) This document referred to Defendant Zepp at various points, 21 but it was very brief and was unsigned. (See id.) Because it was not clear to the Court whether 22 this document was responsive to either of Defendants’ motions for summary judgment, on 23 December 13, 2021, the Court entered an order directing Plaintiff to file oppositions or statements of non-opposition to Defendants’ motion for summary judgment. (ECF No. 83.) 24 On January 3, 2022, and January 6, 2022, Plaintiff filed various documents in response to 25 Defendants’ motions for summary judgment. (ECF Nos. 91-95.) Plaintiff generally argues that he 26 contacted Dr. Zepp on or near September 9, 2017, with reports of extreme pain but was not 27 provided treatment until September 12, 2021. (See id.) 28 1 Neither Defendant has filed a reply in support of their motion for summary judgment. 2 II. PLAINTIFF’S MOTIONS 3 On November 8, 2021, Plaintiff filed an unsigned3 motion requesting that sanctions be 4 entered against Defendant Tawansy. (ECF No. 77.) Plaintiff’s motion states that he has not received any medical documents from Defendant Tawansy’s counsel. (Id.) Additionally, Plaintiff 5 requested a history of lawsuits against Dr. Tawansy, and those “lawsuit documents” have not 6 been provided. (Id.) Plaintiff then lists various filings in the case that he believes Defendant 7 Tawansy has not followed. (Id.) Plaintiff states that he has not received any documents from 8 Defendant Tawansy’s counsel. (Id.) Plaintiff believes that the Court has been “bias[ed]” and 9 “prejudice[d]” in favor of Defendant Tawansy. (Id.) 10 On November 19, 2021, Plaintiff filed an unsigned motion requesting that default be 11 entered against Defendant Tawansy for failure to appear and failure to comply with court orders. 12 (ECF No. 79.) Plaintiff states that he has enclosed a few of the violations where there has been 13 prejudice or bias because the Court never entered Defendant Tawansy’s default or sanctioned 14 him. (Id.) Plaintiff attaches copies of the Court’s orders entered on October 19, 2021, April 8, 15 2021, and February 5, 2021. (Id.) 16 On November 19, 2021, Plaintiff also filed a separate motion requesting phone records for 17 D-Yard medical from Defendant Zepp. (ECF No. 80.) In this motion, Plaintiff explains that he 18 has requested phone records for 9/8/17, 9/9/17, and 9/12/17 because Plaintiff contends that he had 19 conversations with his mother and an ADA worker about his eye on these dates. (Id.) 20 On November 22, 2021, Plaintiff filed a motion to compel Defendant Tawansy to produce 21 phone records for the year 2017, and specifically for 8/8/17, 8/9/17, 8/25/17, 9/8/17, 9/9/17 for 22 calls that came from KVSP in Delano. (ECF No. 81.) Additionally, Defendant Tawansy has not 23 produced a history of old and new lawsuits against him. (Id.) On December 14, 2021, Defendant Tawansy filed an opposition to Plaintiff’s motion to 24 compel. (ECF No. 84.) Defendant Tawansy included reproductions of Plaintiff’s document 25 requests and his response. (Id.) Defendant Tawansy opposed Plaintiff’s motion to compel him to 26 27 3 As the Court has reminded Plaintiff on at least two occasions, Federal Rule of Civil Procedure 11 and Local Rule 28 131 require all pleadings and non-evidentiary documents, including motions, to be signed. (See ECF No. 65, 82.) 1 produce phone records and a history of lawsuits against him on the grounds that the documents do 2 not exist or are not in Defendant Tawansy’s possession, custody, or control. (Id.) 3 On December 24, 2021, Defendant Zepp filed an opposition to the motion to compel 4 likewise providing his response to Plaintiff’s request for phone records. (ECF No. 89.) Defendant Zepp explained that the phone calls at issue are not recorded and Defendant Zepp is unable to 5 comply with the request because he has nothing to produce. (Id.) 6 On December 20, 2021, Plaintiff filed an unsigned motion requesting to depose Defendant 7 Zepp by oral examination. (ECF No. 85.) The motion states that Plaintiff would like to question 8 Defendant Zepp and contains excerpts from Federal Rule of Civil Procedure 30. (Id.) 9 On January 21, 2022, Plaintiff field a motion requesting that default judgment be entered 10 against Defendant Tawansy. (ECF No. 96.) Plaintiff states that Dr. Tawansy made Plaintiff’s 11 condition worse by failing to see him. (Id.) Plaintiff is a diabetic and falls under the ADA, and 12 “even an average person on the street would easily recognize the necessity for a Doctor’s 13 attention.” (Id.) Plaintiff cites to the Eighth Amendment, the Fourteenth Amendment, and the 14 ADA. (Id.) 15 On January 21, 2022, Plaintiff filed a notice titled “Proof and Document Evidence I the 16 Plaintiff Vincent Turner Have no Way to View said D.V.D. Dis. That I was suppose to view.” 17 (ECF No. 97.) In this notice, Plaintiff states: 18 I am a state prisoner and have no way to Respone to said Questions. – Resposes to 19 Defendant. Do to me not being able to view the D.V.D. Enclosed are supporting prison documents. I’ve tried many of times to view the Dis. 20 21 (Id.) Plaintiff attaches two inmate requests for interview forms indicating that Plaintiff requested 22 to view a DVD as part of a legal matter in January of 2022 and was told that the disc is 23 contraband and the institution does not have an area to view it. (Id.) 24 On February 11, 2021, the Court entered an order directing Defendants to file responses to 25 Plaintiff’s notice. (ECF No. 99.) Specifically, the Court ordered Defendants to address “whether 26 they produced documents to Plaintiff on a CD or DVD, whether they are aware of Plaintiff’s 27 ability to view that material, and whether those documents can be produced in another format.” 28 1 (Id.) 2 On February 18, 2022, Plaintiff filed a document titled “Motion: Requesting a court order. 3 To view Dis. D.V.D. I was sent to view as part of this case By Attorney for Dr. Khaled A. 4 Tawansy.” (ECF No. 100.) Plaintiff states that he received a DVD video and has tried many times 5 to view it but the law library does not have a DVD player. (Id.) Plaintiff has been given the 6 runaround and has not had a chance to view the DVD, so he is unable to respond to “some of the 7 Attorney’s Motions.” (Id.) 8 On February 22, 2022, Defendant Zepp filed a response confirming that he had not 9 produced any documents to Plaintiff on a CDC, DVD, or in any other digital format. (ECF No. 10 101.) On February 25, 2022, Defendant Tawansy filed a response stating that he produced copies 11 of Plaintiff’s patient chart on a CD, but was unaware that Plaintiff was unable to access this 12 format. (ECF No. 102.) Defendant Tawansy produced a paper copy of these documents to 13 Plaintiff concurrently with his response. (Id.) 14 III. DISCUSSION 15 A. Motions for Reconsideration 16 1. Legal Standards 17 Under Federal Rule of Civil Procedure 60(b), [o]n motion and just terms, the court may relieve a party or its legal 18 representative from a final judgment, order, or proceeding for the following 19 reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been 20 discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an 21 opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been 22 reversed or vacated; or applying it prospectively is no longer equitable; or (6) 23 any other reason that justifies relief. 24 Fed. R. Civ. P. 60(b). 25 Under Rule 60(b)(6), plaintiff “must demonstrate both injury and circumstances beyond 26 his control that prevented him from proceeding with the action in a proper fashion.” Harvest v. 27 Castro, 531 F.3d 737, 749 (9th Cir. 2008) (citation and internal quotation marks omitted). Additionally, Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent manifest 28 1 injustice and is to be utilized only where extraordinary circumstances prevented a party from 2 taking timely action to prevent or correct an erroneous judgment.” Id. (citation and internal 3 quotation marks omitted). 4 2. Discussion Several of Plaintiff’s motions seek sanctions, entry of default, and/or default judgment 5 against Defendant Tawansy for his failure to comply with court orders. (ECF Nos. 77, 79, 96.) 6 With the exception of Plaintiff’s allegation that he has not received the documents described in 7 Defendant Tawansy’s counsel’s October 11, 2021 declaration, which is discussed further below, 8 Plaintiff only identifies Dr. Tawansy’s failures to comply with court orders that have already been 9 addressed by the Court. Thus, the Court construes these requests as motions for reconsideration of 10 1) the April 8, 2021 order denying Plaintiff’s request for entry of default and default judgment; 2) 11 the May 24, 2021 order discharging the order to show cause as to Defendant Tawansy; and 3) the 12 October 19, 2021 order discharging the order to show cause as to Defendant Tawansy.4 (See ECF 13 Nos. 55, 61, 71.) 14 Plaintiff has failed to set forth facts or law that show that he meets any of the above- 15 mentioned reasons for granting reconsideration. The Court’s order denying Plaintiff’s requests for 16 default and entry of default judgment explained that the Court was unable to enter default 17 judgment against Defendant Tawansy without a showing that he was properly served with the 18 summons and complaint. (ECF No. 55.) See Johnson v. Eid, 2012 WL 11158853, at *3 (E.D. Cal. 19 Apr. 6, 2012) (“[A] court must first assess the adequacy of the service of process on the party 20 against whom default judgment is requested.”) (quotation marks and citation omitted). Because 21 the Marshal did not file a return of service showing that Defendant Tawansy was properly served, 22 the Court ordered the Marshal to serve Defendant Tawansy again. Once that occurred, Defendant 23 Tawansy appeared through counsel and participated in the case. Plaintiff therefore was not entitled to entry of default or default judgment against Defendant Tawansy. 24 25 4 To the extent Plaintiff’s January 21, 2022 motion is intended to be a renewed request for entry of default judgment against Defendant Tawansy (see ECF No. 96), it is subject to denial because Defendant Tawansy is not in default. 26 See Morris v. Fresno Police Dept., 2010 WL 2719826, at *1 (E.D. Cal. July 6, 2010) (“Obtaining a default judgment in federal court is a two-step process that includes: (1) entry of default and (2) default judgment.”) (citing Eitel v. 27 McCool, 782 F.2d 1470, 1471 (9th Cir. 1986)). Additionally, Plaintiff has not addressed any of the relevant factors for granting default judgment, provided proof of his damages, or explained why a separate judgment should be 28 entered against Defendant Tawansy. Eitel, 782 F.2d at 1471-72; Fed. R. Civ. P. 54(b). (See ECF Nos. 43, 55, 96.) 1 Additionally, both the February 5, 2021 and October 5, 2021 orders to show cause issued 2 to Defendant Tawansy were discharged either because Defendant Tawansy demonstrated that he 3 complied with the Court’s orders or because the failure to comply was adequately explained by 4 the issues with service of the summons and complaint described above. As the Court noted in the February 5, 2021 and October 5, 2021 orders to show cause, the imposition of sanctions is within 5 the Court’s discretion. Under the circumstances, the Court declined to sanction Defendant 6 Tawansy and instead discharged the orders to show cause. 7 Plaintiff has not presented newly discovered evidence, demonstrated that the Court 8 committed clear error, or cited to an intervening change in controlling law. Instead, Plaintiff 9 merely raises arguments that were, or could have been, raised previously. Accordingly, the Court 10 will deny Plaintiff’s requests for reconsideration of the Court’s April 8, 2021, May 24, 2021, and 11 October 19, 2021 orders. 12 B. Motions Re: DVD Evidence and Request for Sanctions for Failure to Comply 13 with May 24, 2021 Order 14 1. Legal Standards 15 “[I]t is firmly established that [t]he power to punish for contempts is inherent in all courts. 16 This power reaches both conduct before the court and that beyond the court's confines, for [t]he 17 underlying concern that gave rise to the contempt power was not…merely the disruption of court 18 proceedings. Rather, it was disobedience to the orders of the Judiciary, regardless of whether such 19 disobedience interfered with the conduct of trial.” Chambers v. NASCO, Inc., 501 U.S. 32, 44 20 (1991) (alterations in original) (citations and internal quotation marks omitted). “Before awarding 21 sanctions under its inherent powers, however, the court must make an explicit finding that [the] 22 conduct ‘constituted or was tantamount to bad faith.’” Primus Auto. Fin. Servs., Inc. v. Batarse, 23 115 F.3d 644, 648 (9th Cir. 1997) (quoting Roadway Express, Inc. v. Piper, 447 U.S. 752, 767 (1980); Knupfer v. Lindblade (In re Dyer), 322 F.3d 1178, 1196 (9th Cir. 2003). Additionally, 24 “inherent powers must be exercised with restraint and discretion.” Chambers, 501 U.S. at 44. 25 2. Discussion 26 Plaintiff indicates that he has not received any of the documents described in Defendant 27 Tawansy’s counsel’s declaration filed on October 11, 2021. (ECF No. 77.) Plaintiff appears to be 28 1 requesting sanctions against Defendant Tawansy for this failure to comply with the Court’s May 2 24, 2021 order. (See id.) Additionally, on January 28, 2022, and February 18, 2022, Plaintiff filed 3 documents stating that he received a DVD from Defendant Tawansy’s counsel and was unable to 4 view it. (ECF Nos. 97, 100.) Defendant Tawansy’s counsel previously filed a declaration stating that he produced the 5 documents that the Court ordered him to produce in the May 24, 2021 order. (See ECF No. 70.) 6 Defendant Tawansy’s counsel has also provided a declaration stating that Plaintiff’s patient chart 7 was produced on a CD but counsel was not aware Plaintiff was not able to view the documents in 8 this format. (ECF No. 102.) Defendant Tawansy produced the documents again in paper format 9 on February 25, 2022. (Id.) 10 There is no indication that Defendant Tawansy was acting in bad faith. Instead, it appears 11 that Defendant Tawansy attempted to comply with the May 24, 2021 order, with the mistaken 12 belief that Plaintiff could access documents on CD. In these circumstances, the Court declines to 13 impose sanctions. Further, because the documents have now been produced again in paper 14 format, Plaintiff’s motions requesting an order regarding his DVD access are denied as moot. 15 However, the Court notes that Plaintiff states that he is unable to respond to “some of the 16 Attorney’s Motions” because he could not access the documents produced on CD. (ECF No. 17 100.) The only motions currently pending before the Court that were filed by Defendants are their 18 motions for summary judgment. Because the documents that Defendant Tawansy recently 19 produced in paper format may be relevant to Plaintiff’s opposition and Plaintiff previously was 20 not able to access them,5 the Court will give Plaintiff an opportunity to file further briefing in 21 opposition to Defendants’ motions for summary judgment. 22 C. Motions to Compel 23 1. Legal Standards “District courts have ‘broad discretion to manage discovery and to control the course of 24 litigation under Federal Rule of Civil Procedure 16.’” Hunt v. County of Orange, 672 F.3d 606, 25 616 (9th Cir. 2012) (quoting Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828, 833 (9th Cir. 26 27 5 Where the party opposing a motion for summary judgment cannot present facts essential to his opposition of the motion, a court may deny or defer consideration of the motion, allow time to obtain affidavits or declarations or to 28 take discovery, or issue any other appropriate order. Fed. R. Civ. P. 56(d).) 1 2011)). The Court is explicitly authorized to establish schedules and deadlines to limit the time to 2 complete discovery and file motions. Fed. R. Civ. P. 16(b)(3); Wong v. Regents of the Univ. of 3 California, 410 F.3d 1052, 1060 (9th Cir. 2006). The deadlines set forth in the scheduling order 4 “may be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4); see also Green Aire for Air Conditioning W.L.L. v. Salem, 2020 WL 58279, at *3 (E.D. Cal. Jan. 5 6, 2020) (“Requests to modify a scheduling order are governed by Rule 16(b)(4), which provides 6 that a court may modify a scheduling order ‘only for good cause.’”). Good cause requires a 7 showing of due diligence. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 8 1992); Sprague v. Fin. Credit Network, Inc., 2018 WL 4616688, at *4 (E.D. Cal. Sept. 25, 2018) 9 (“[Good cause] requires the party to show that despite due diligence the scheduled deadline could 10 not be met.”). Absent a showing of good cause, motions filed after a deadline set forth in a 11 scheduling order may be denied as untimely. Britz Fertilizers v. Nationwide Agribusiness Ins. 12 Co., 2013 WL 2100540, at *1 (E.D. Cal. May 14, 2013) (citing Johnson, 975 F.2d at 608-609). 13 A party responding to a discovery request must provide all responsive information that is 14 in that party’s “possession, custody, or control.” Fed. R. Civ. P. 34(a)(1). The party propounding 15 discovery may seek an order to compel responses when the opposing party fails to respond or has 16 provided evasive and incomplete responses. Fed. R. Civ. P. 37(a)(3)(B). The party moving 17 to compel bears the burden of informing the court (1) which discovery requests are the subject of 18 the motion to compel; (2) which of the responses are disputed; (3) why the party believes the 19 response is deficient; (4) why any objections are not justified; and (5) why the information sought 20 through discovery is relevant to the prosecution of this action. Haraszewski v. Knipp, 2020 WL 21 4676387, at *3 (E.D. Cal. Aug. 12, 2020); McCoy v. Ramirez, 2016 WL 3196738, at *1 (E.D. 22 Cal. June 9, 2016); Ellis v. Cambra, 2008 WL 860523, at *4 (E.D. Cal. Mar. 27, 2008). 23 2. Discussion Plaintiff’s motions indicate that he seeks an order compelling the production of phone 24 records and a history of lawsuits against Defendant Tawansy.6 (ECF Nos. 77, 80, 81.) Specifically 25 Plaintiff requested that Defendant Tawansy produce 1) “Phone Records” for the year 2017 and 26 27 6 Plaintiff’s requests for sanctions for failure to produce these documents are construed as motions to compel. (See 28 ECF No. 77.) 1 the dates 8/8/17, 8/9/17, and 9/9/17 that came from D-Yard at KVSP in Delano; and 2) a history 2 of lawsuits, old and new, against Defendant Tawansy. (ECF No. 84.) Plaintiff requested that 3 Defendant Zepp produce “recorded calls” between Defendant Zepp and Defendant Tawansy. 4 (ECF No. 89.) For the following reasons, the Court will deny Plaintiff’s motions to compel. First, Plaintiff has not shown that the requested documents exist and are in Defendants’ 5 possession, custody, or control. U.S. v. Int’l Union of Petroleum & Indus. Workers, 870 F.2d 6 1450, 1452 (9th Cir. 1989) (“The party seeking production of the documents…bears the burden 7 of proving that the opposing party has such control.”) Defendants state that they cannot comply 8 with Plaintiff’s requests because the information either does not exist or is not in their possession, 9 custody, or control. Defendant Tawansy’s responses included an affirmation that he conducted a 10 “diligent search and reasonable inquiry” for the responsive documents. (ECF No. 84.) Defendant 11 Zepp’s response explained that he did not have the requested recorded calls because those calls 12 are not recorded. (ECF No. 89.) Plaintiff has not filed a motion for issuance of a subpoena, and 13 the Court cannot compel Defendants to produce information that either does not exist or is outside 14 their possession, custody, or control. See Rogers v. Giurbino, 288 F.R.D. 469, 485 (S.D. Cal. 15 2012) (“A party … is not required to create a document where none exists.”) (citations omitted). 16 Second, Plaintiff has not met his burden of explaining how the information he seeks is 17 relevant to his claims. This case concerns Defendants’ treatment of Plaintiff following his sinus 18 surgery and whether Defendants’ alleged failure to provide treatment immediately when Plaintiff 19 complained of pain to Defendant Zepp amounted to deliberate indifference. The “history of 20 lawsuits” against Dr. Tawansy has no bearing on whether either of the Defendants were 21 deliberately indifferent to Plaintiff’s serious medical needs in this case. See Fed. R. Evid. 22 404(b)(1) (“Evidence of any other crime, wrong, or act is not admissible to prove a person’s 23 character in order to show that on a particular occasion the person acted in accordance with the character.”); Samuels v. Adame, 2011 WL 456772, at *5 (E.D. Cal. Sept. 29, 2011) (denying 24 motion to compel documents related to prior lawsuits because they were not relevant to the 25 plaintiff’s § 1983 claims); Tate v. Cate, 2011 WL 5024439, at *2 (E.D. Cal. Oct. 20, 2011) 26 (same); Wheeler v. Alison, 2015 WL 269148, at *4 (E.D. Cal. Jan. 21, 2015) (same); see also 27 Salinas v. Wang, 2021 WL 1060160, at *1 (E.D. Cal. Mar. 18, 2021) (“As a general matter, third- 28 1 party prisoner complaints in deliberate indifference cases are not relevant to whether a defendant 2 as deliberately indifferent to plaintiff, and they are likely inadmissible and of limited probative 3 value.”). Additionally, the phone records Plaintiff seeks may establish that a call was made but 4 would not show what was said during that call, which is the critical issue in this case. Thus, the phone records do not bear on the material issues of this case. 5 Third, Plaintiff’s motions to compel are untimely. Plaintiff did not file his motions to 6 compel until November of 2021. (See ECF Nos. 77, 80, 81.) Non-expert discovery opened on 7 December 9, 2020, and closed on October 1, 2021. (ECF No. 40.) Motions to compel were due by 8 July 19, 2021. (Id.) The Court explained the motion to compel and non-expert discovery 9 deadlines to Plaintiff at the Initial Scheduling Conference on December 9, 2020, and in the 10 Scheduling Order. (See id.) The Scheduling Order also included a statement that untimely 11 motions to compel would not be permitted absent good cause. (Id. at 5.) Plaintiff has not provided 12 any explanation as to why his motions to compel were filed after the motion to compel deadline. 13 (See ECF Nos. 77, 80, 81.) Plaintiff therefore has not shown diligence in pursuing the written 14 discovery at issue within the time provided by the Scheduling Order and has not established good 15 cause of his failure to comply with the motion to compel deadline. Thus, the motions are subject 16 to denial as untimely.7 17 For these reasons, Plaintiff’s motions to compel Defendant Zepp to produce recorded calls 18 and to compel Defendant Tawansy to produce phone records and a history of lawsuits are denied. 19 D. Motion for Deposition 20 Plaintiff requests an order allowing him to depose Defendant Zepp. (ECF No. 85.) 21 Plaintiff’s motion is brief and solely states that Plaintiff would like to question Defendant Zepp, 22 7 As discussed above, the Court will grant Plaintiff leave to file additional briefing in opposition to Defendants’ 23 motions for summary judgment due to the timing of Defendant Tawansy’s production of Plaintiff’s patient chart in paper format. However, the Court finds that Plaintiff is not entitled to relief under Rule 56(d) on the basis of his 24 requests for the history of lawsuits, phone records, or recorded calls because Plaintiff has not shown that discovery of this information would reveal any specific facts that would preclude summary judgment. Defendant Zepp has 25 represented that the recorded calls do not exist, and Plaintiff has not shown that they do. See Conkle v. Jeong, 73 F.3d 909, 914 (9th Cir. 1995) (“The burden is on the party seeking to conduct additional discovery to put forth sufficient 26 facts to show that the evidence sought exists.”). Additionally, the history of lawsuits against Defendant Tawansy have no relevance to the issues in this case, and the phone records do not bear on the critical issue of what was said 27 during the calls. Thus, Plaintiff has not shown that he is unable to present facts essential to his opposition to Defendants’ motions for summary judgment as required by Rule 56(d). 28 1 then cites to Federal Rule of Civil Procedure 30. (Id.) 2 The Court will deny Plaintiff’s motion. As noted above, non-expert discovery concluded 3 on October 1, 2021, and the motion to compel deadline lapsed on July 19, 2021. Plaintiff’s 4 motion requesting to depose Defendant Zepp was not filed until December 20, 2021, and Plaintiff has not explained why he was unable to comply with the applicable deadlines. (See ECF No. 85.) 5 Thus, for the same reasons discussed above, Plaintiff’s motion is untimely and will be denied on 6 that basis.8 7 IV. CONCLUSION AND ORDER 8 For the foregoing reasons, IT IS HEREBY ORDERED that: 9 1. Plaintiff’s motions for reconsideration (ECF Nos. 77, 79, 96), for sanctions (ECF No. 10 77), for an order regarding DVDs (ECF Nos. 97, 100), to compel production of 11 documents (ECF Nos. 77, 80, 81), and to compel Defendant Zepp’s deposition (ECF 12 No. 85) are DENIED; and 13 2. Within thirty (30) days of entry of this order, Plaintiff may file supplemental briefing 14 in support of his oppositions to Defendants’ motions for summary judgment. 15 Plaintiff’s supplemental briefing shall not exceed a total of twenty (20) pages in 16 length, excluding exhibits.9 17 \\\ 18 \\\ 19 \\\ 20 \\\ 21 \\\ 22 8 Although the motion is subject to denial on this basis, the Federal Rules of Civil Procedure govern the manner in 23 which depositions may be taken, either by oral or written questions. See Fed. R. Civ. P. 30, 31. While the Scheduling Order requires Plaintiff to obtain leave of court before deposing other incarcerated individuals, Defendants are not 24 incarcerated and a court order is not necessarily required before Plaintiff may depose them. (See ECF No. 40.) Rule 30 governs the procedures for depositions by oral examination and explains the steps a party must take to depose 25 another party. Among other things, requires the party noticing the deposition must bear the costs of recording and to arrange for an officer to conduct the deposition. Fed. R. Civ. P. 30(b)(3)(A), (5)(A). Plaintiff’s in forma pauperis 26 status does not entitle him to a waiver of any of the costs associated with the deposition, and Plaintiff must pay the necessary deposition officer fee, court reporter fee, and costs for a transcript. Griffin v. Johnson, 2016 WL 4764670, 27 at *2 (E.D. Cal. Sept. 12, 2016). 9 If Plaintiff needs additional time to file his opposition or would like to file briefing in excess of these page limits, he 28 should file a signed motion explaining the reasons for his request before the deadline expires. 1 Defendants may each file a reply in support of their motion within seven (7) days after 2 | Plaintiff's supplemental briefing 1s filed. 3 4 IT IS SO ORDERED. | Dated: _March 7, 2022 Fahey — 6 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15