(PC) Milton v. Trate ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 KYLE DAVID MILTON, Case No. 1:22-cv-00988-ADA-EPG (PC) 10 Plaintiff, ORDER OPENING DISCOVERY ONLY 11 v. ON THE ISSUE OF EXHAUSTION OF AVAILABLE ADMINISTRATIVE 12 B.M. TRATE, et al., REMEDIES 13 Defendants. 14 15 16 On April 25, 2023, defendants Trate and Dr. Grasley1 filed a motion for, among other 17 things, summary judgment on the issue of exhaustion. (ECF No. 25). As defendants Trate and 18 Dr. Grasely filed this motion for summary judgment before discovery opened, the Court will 19 open discovery only on the issue of exhaustion of administrative remedies. 20 Accordingly, based on the foregoing, IT IS ORDERED that: 21 1. Discovery is open only on the issue of exhaustion of administrative remedies. 22 2. If Plaintiff needs additional time to file his opposition to defendants Trate’s and 23 Dr. Grasely’s motion (ECF No. 25) so that he can take discovery on the issue of 24 exhaustion, or if Plaintiff believes discovery should be opened as to additional 25 issues, Plaintiff may file an appropriate motion. 26 3. The parties may take the following types of discovery from other parties: 27 28 1 “Dr. Grasley is misspelled in the Complaint and caption as ‘Grassely.’” (ECF No. 23, p. 1 n.2). 1 a. Interrogatories (an interrogatory is a written question or request for 2 information and “may relate to any matter that may be inquired into 3 under Rule 26(b).” Fed. R. Civ. P. 33(a)(2)); 4 b. Requests for Production (a request for production is a written request 5 that the opposing party produce documents or electronically stored 6 information, “including writings, drawings, graphs, charts, photographs, 7 sound recordings, images, and other data or data compilations,” or a 8 written request that the opposing party produce any designated tangible 9 things. Fed. R. Civ. P. 34(a)(1)); 10 c. Requests for Admissions (a request for admission is a written request 11 that the opposing party “admit, for purposes of the pending action only, 12 the truth of any matters within the scope of Rule 26(b)(1)” that relate to 13 “(A) facts, the application of law to fact, or opinions about either; [or] 14 (B) the genuineness of any described documents.” Fed. R. Civ. P. 15 36(a)(1)); and 16 17 d. Depositions (a deposition is where one party (or that party’s counsel) 18 questions someone under oath, and a court reporter is present to record 19 the proceedings).2 20 i. Pursuant to Federal Rule of Civil Procedure 30(a)(2)(B), 21 Defendant(s) may depose any witness confined in a prison on the 22 condition that, at least fourteen (14) days before such a 23 deposition, Defendant(s) serve all parties with the notice required 24 by Federal Rule of Civil Procedure 30(b)(1). Plaintiff’s failure to 25 participate in a properly noticed deposition could result in 26 27 2 “Instead of participating in the oral examination, a party may serve written questions in a sealed 28 envelope on the party noticing the deposition, who must deliver them to the officer. The officer must ask the deponent those questions and record the answers verbatim.” Fed. R. Civ. P. 30(c)(3). 1 sanctions against Plaintiff, including monetary sanctions and/or 2 dismissal of this case. Pursuant to Federal Rule of Civil 3 Procedure 30(b)(4), the parties may take any deposition under 4 this section by video conference without a further motion or order 5 of the Court, relieving the court reporter of the requirement to be 6 in the physical presence of the witness under Federal Rule of 7 Civil Procedure 28(a)(1) during that deposition. 8 ii. If Plaintiff wishes to take a deposition, Plaintiff must file a 9 motion requesting permission to do so, specifically showing the 10 ability to comply with the applicable Federal Rules of Civil 11 Procedure by providing the name of the person to be deposed, the 12 name and address of the court reporter who will take the 13 deposition, the estimated cost for the court reporter’s time and the 14 recording, and the source of funds for payment of that cost. 15 Plaintiff bears the responsibility to pay the costs of the 16 17 deposition, including the cost of copies of deposition 18 transcript(s).3 19 4. A party may serve on any other party no more than 10 interrogatories, 10 20 requests for production of documents, and 10 requests for admission at this time. 21 If a party wishes to serve additional discovery requests, that party may file a 22 motion for additional discovery requests with the Court, explaining why 23 additional discovery requests are necessary. 24 5. Discovery requests and responses should be sent to the opposing part(ies), or 25 their counsel if represented. They should not be filed with the Court. 26 6. Responses to written discovery requests shall be due forty-five (45) days after 27 28 3 The Court may request input from Plaintiff’s institution of confinement to determine if the deposition(s) can proceed in a safe and secure manner before ruling on a motion for a deposition. 1 the request is first served. Boilerplate objections are disfavored and may be 2 summarily overruled by the Court. Responses to document requests shall 3 include all documents within a party’s possession, custody, or control. Fed. R. 4 Civ. P. 34(a)(1). Documents are deemed to be within a party’s possession, 5 custody, or control if the party has actual possession, custody, or control thereof, 6 or the legal right to obtain the property on demand. If Defendant(s) cannot 7 obtain documents from Plaintiff’s institution(s) of confinement, Defendant(s) 8 shall clearly respond that a third party subpoena will be necessary to obtain 9 documents from Plaintiff’s institution(s) of confinement. 10 7. If any party or third party withholds a document on the basis of privilege, that 11 party or third party shall provide a privilege log to the requesting party 12 identifying the date, author, recipients, general subject matter, and basis of the 13 privilege within thirty (30) days after the date that responses are due. Failure to 14 provide a privilege log within this time shall result in a waiver of the privilege. 15 Additionally, if a party is claiming a right to withhold witness statements and/or 16 17 evidence gathered from investigation(s) into the incident(s) at issue in the 18 complaint based on the official information privilege or confidentiality, the 19 withholding party shall submit the withheld witness statements and/or evidence 20 to the Court for in camera review, along with an explanation of why the witness 21 statements and/or evidence should be withheld.4 The witness statements and/or 22 23 4 See Woodford v. Ngo, 548 U.S. 81, 94-95 (2006) (“[P]roper exhaustion improves the quality of those prisoner suits that are eventually filed because proper exhaustion often results in the creation of an administrative 24 record that is helpful to the court. When a grievance is filed shortly after the event giving rise to the grievance, witnesses can be identified and questioned while memories are still fresh, and evidence can be gathered and 25 preserved.”). The “common law governmental privilege (encompassing and referred to sometimes as the official or 26 state secret privilege) . . . is only a qualified privilege, contingent upon the competing interests of the requesting litigant and subject to disclosure. . . .” Kerr v. U.S. Dist. Ct. for N. Dist. of Cal., 511 F.2d 192, 198 (9th Cir. 1975) 27 (citations omitted). The Ninth Circuit has since followed Kerr in requiring in camera review and a balancing of interests in ruling on the government’s claim of the official information privilege. See, e.g., Breed v. U.S. Dist. Ct. 28 for N. Dist. of Cal., 542 F.2d 1114, 1116 (9th Cir. 1976) (“[A]s required by Kerr, we recognize ‘that in camera review is a highly appropriate and useful means of dealing with claims of governmental privilege.’”) (quoting Kerr 1 evidence shall be Bates stamped, and mailed to Judge Grosjean at 2500 Tulare 2 Street, Sixth Floor, Fresno, CA 93721. The withholding party shall also file and 3 serve a notice that they have complied with this order. All other claims of 4 privilege may be challenged via a motion to compel. 5 8. If Plaintiff seeks documents from someone who is not a party in this case, 6 Plaintiff must file a request for the issuance of a subpoena duces tecum with the 7 Court. In any request for a subpoena, Plaintiff must: (1) identify the documents 8 sought and from whom; (2) explain why the documents are relevant to the 9 claims in this case; and (3) make a showing in the request that the records are 10 only obtainable through a third party. If the Court approves the request, it may 11 issue Plaintiff a subpoena duces tecum, commanding the production of 12 documents from a non-party, and may command service of the subpoena by the 13 United States Marshals Service. Fed. R. Civ. P. 45; 28 U.S.C. § 1915(d). 14 However, the Court will consider granting such a request only if the documents 15 sought from the non-party are not obtainable from Defendant(s) through a Rule 16 17 34 request for production of documents. 18 9. The parties are required to act in good faith during the course of discovery and 19 the failure to do so may result in the payment of expenses pursuant to Federal 20 Rule of Civil Procedure 37(a)(5) or other appropriate sanctions authorized by 21 the Federal Rules of Civil Procedure or the Local Rules. 22 10. The parties have permission to file motions to compel further discovery 23 responses. Any such motion should include a copy of the request(s) and any 24 response to the request(s) at issue. The responding party may file a response to 25 the motion no later than twenty-one days from the date the motion is filed. If, 26 v. U. S. Dist. Ct. for N. Dist. of Cal., 426 U.S. 394, 406 (1976)); Sanchez v. City of Santa Ana, 936 F.2d 1027, 27 1033-34 (9th Cir. 1990), as amended on denial of reh’g (Feb. 27, 1991), as amended on denial of reh’g (May 24, 1991) (“Government personnel files are considered official information. To determine whether the information 28 sought is privileged, courts must weigh the potential benefits of disclosure against the potential disadvantages. If the latter is greater, the privilege bars discovery.”) (citations omitted). —e—— I NEE EIEIO I IIE IEE EO 1 after reviewing the motion(s) and response(s), the Court determines that a 2 hearing will be helpful, the Court will set a hearing on the motion(s) to compel. 3 IT IS SO ORDERED. > ll Dated: _ April 26, 2023 hey 6 UNITED STATES MAGISTRATE JUDGE 4 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28