(PC) Casey J. Beck v. Thomas ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CASEY JOSEPH BECK, Case No. 1:20-cv-01115-DAD-SKO (PC) 12 Plaintiff, ORDER GRANTING DEFENDANT’S 13 v. MOTION TO COMPEL PLAINTIFF’S RESPONSES TO WRITTEN DISCOVERY 14 P. THOMAS, et al., (Doc. 27) 15 Defendants. 16 17 Plaintiff Casey Joseph Beck, appearing pro se and proceeding in forma pauperis, initiated 18 this civil rights action pursuant to 42 U.S.C. § 1983 on August 12, 2020. (Doc. 1.)1 19 I. INTRODUCTION 20 On January 6, 2022, Defendants P. Thomas filed a motion to compel Plaintiff to respond 21 to Defendant Thomas’s written discovery, including first sets of interrogatories and requests for 22 production of documents, propounded on October 13, 2021. (Doc. 27 at 3-4.) To date, Plaintiff 23 has not responded to the written discovery requests, or to Defendant’s December 10, 2021, meet 24 and confer letter. (Id. at 4; see also Doc. 29 [confirming same as of 2/22/22].) In addition to an 25 order compelling Plaintiff to provide responses to the outstanding written discovery, Defendant 26 27 1 Plaintiff was incarcerated at the California Correctional Institution in Tehachapi when he filed his complaint. (Doc. 1.) On July 30, 2021, Plaintiff filed a Notice of Change of Address, providing a new address of 2975 N. Francisco 1 Thomas seeks an award of costs in the sum of $1,100.00. (Id. at 5-6.) Plaintiff has not filed an opposition or a statement of non-opposition to the motion, and the time to do so has passed. See 2 Local Rule 230(l). For the reasons set forth below, the Court grants Defendant’s motion to 3 compel and orders Plaintiff to show cause why an award of expenses should not be imposed. 4 II. DISCUSSION 5 A. Motion to Compel Written Responses 6 Parties may seek “discovery regarding any nonprivileged matter that is relevant to any 7 party’s claim or defense and proportional to the needs of the case….” Fed. R. Civ. P. 26(b)(1). 8 Information “need not be admissible in evidence to be discoverable.” Id. Within the scope of Rule 9 26(b), a party may serve on any other party interrogatories. Fed. R. Civ. P. 33(a). In response to 10 each interrogatory, the responding party must answer fully or state with specificity the grounds 11 for objecting thereto. Fed. R. Civ. P. 33(b). 12 Additionally, a party may serve a request to produce documents, electronically stored 13 information, or tangible things that are in the responding party’s possession, custody, or control. 14 Fed. R. Civ. P. 34(a)(1). “Property is deemed within a party’s ‘possession, custody, or control’ if 15 the party has actual possession, custody, or control thereof or the legal right to obtain the property 16 on demand. Allen v. Woodford, No. 1:05-cv-01104-OWW-LJO, 2007 WL 309945, at *2 (E.D. 17 Cal. 2007) (citation omitted). In response to each request, the responding party must state that it 18 will produce the requested documents, information, or things, or the party must “state with 19 specificity the grounds for objecting to the request.” Fed. R. Civ. P. 34(b)(2)(B). 20 If a party fails to answer interrogatories or produce documents as requested, the party 21 seeking discovery may file a motion with the Court to compel the answers or production. Fed. R. 22 Civ. P. 37(a)(3)(B). In general, the moving party must certify that he has conferred or attempted 23 to confer in good faith with the responding party to resolve the dispute without court action. Fed. 24 R. Civ. P. 37(a)(1), 37(d)(2)(B); Local Rule 251(b). However, in prisoner cases involving pro se 25 plaintiffs, the meet-and-confer requirements of Rule 37 and Local Rule 251 do not apply, though 26 they are still encouraged. 27 // 1 Plaintiff has failed to respond to the Defendant’s written discovery requests. (Doc. 27 at 4- 5, 7 ¶ 2; see also Doc. 29.) Under the Federal Rules, Plaintiff must respond to each interrogatory 2 and request for production. If Plaintiff objects to an interrogatory or request, he must state with 3 specificity the grounds for the objection. Fed. R. Civ. P. 33(b)(4) & 34(b)(2)(B). If he does not 4 have documents responsive to a production request, or if requested documents do not exist, 5 Plaintiff must state so with enough specificity to allow the Court to evaluate the merit of the 6 response or whether Plaintiff has made a reasonable inquiry. See Ochotorena v. Adams, No. 1:05- 7 cv-01524-LJO-DLB, 2010 WL 1035774, at *4 (E.D. Cal. 2010); Uribe v. McKesson, No. 1:08- 8 cv-01285-DSM-NLS, 2010 WL 892093, at *3 (E.D. Cal. 2010). 9 The Court will order Plaintiff to respond to Defendant’s written discovery requests within 10 21 days. 11 B. Request for Expenses 12 13 Defendant requests that Plaintiff pay the reasonable expenses incurred in bringing the 14 instant motion to compel. Specifically, Defendant seeks an award of attorney’s fees totaling 15 $1,1000, which represents the five hours defense counsel spent preparing the motion to compel at 16 the rate of $220 per hour. (Doc. 27 at 7, ¶ 6 [Zalesny Declaration].) 17 Rule 37(a)(5) provides that if a motion to compel “is granted--or if the disclosure or 18 requested discovery is provided after the motion was filed--the court must, after giving an 19 opportunity to be heard, require the party . . . whose conduct necessitated the motion, the party or 20 attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred in 21 making the motion, including attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(A) (emphasis added). 22 Thus, because the Court grants Defendant’s motion to compel, an award of costs is mandatory, 23 unless the Court finds that Plaintiff’s “nondisclosure . . . was substantially justified . . . or . . . 24 other circumstances make an award of expenses unjust.” Id. Pursuant to the rule, the Court will 25 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. Defendant Thomas’s motion to compel Plaintiff’s response to written discovery 4 requests (Doc. 27) is GRANTED; 5 2. Within 21 days from the date of service of this order, Plaintiff must serve responses 6 to Defendant’s Interrogatories, Set One; and Requests for Production of Documents, 7 Set One, served on October 13, 2021; and, 8 3. Within 30 days of the date of service of this order, Plaintiff shall show cause in 9 writing why an award of expenses should not be imposed. Plaintiff shall file his 10 response to this order to show cause with the Court. 11 IT IS SO ORDERED. 12 13 Dated: March 31, 2022 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27