(PC) Goods v. Virga ( 2023 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORY GOODS, No. 2:17-CV-0660-DJC-DMC-P 12 Plaintiff, 13 v. ORDER 14 TIM V. VIRGA, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court is Defendants’ motion to compel relating to 19 discovery propounded to Plaintiff, ECF No. 54. 20 The purpose of discovery is to “remove surprise from trial preparation so the 21 parties can obtain evidence necessary to evaluate and resolve their dispute.” United States v. 22 Chapman Univ., 245 F.R.D. 646, 648 (C.D. Cal. 2007) (quotation and citation omitted). Federal 23 Rules of Civil Procedure offers guidance on the scope of discovery permitted: 24 Parties may obtain discovery regarding any nonprivileged information that is relevant to any party’s claim or defense and proportional to the needs of 25 the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, 26 the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery 27 outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. Fed. R. Civ. P. 26(b)(1). 28 1 Under Rule 37 of the Federal Rules of Civil Procedure, “a party seeking discovery 2 may move for an order compelling an answer, designation, production, or inspection.” Fed. R. 3 Civ. P. 37(a)(3)(B). The court may order a party to provide further responses to an “evasive or 4 incomplete disclosure, answer, or response.” Fed. R. Civ. P. 37(a)(4). “District courts have ‘broad 5 discretion to manage discovery and to control the course of litigation under Federal Rule of Civil 6 Procedure 16.’” Hunt v. County of Orange, 672 F.3d 606, 616 (9th Cir. 2012) (quoting Avila v. 7 Willits Envtl. Remediation Trust, 633 F.3d 828, 833 (9th Cir. 2011)). 8 The party moving to compel bears the burden of informing the court (1) which 9 discovery requests are the subject of the motion to compel, (2) which of the responses are 10 disputed, (3) why the party believes the response is deficient, (4) why any objections are not 11 justified, and (5) why the information sought through discovery is relevant to the prosecution of 12 this action. McCoy v. Ramirez, No. 113CV01808MJSPC, 2016 WL 3196738, at *1 (E.D. Cal. 13 June 9, 2016); Ellis v. Cambra, No. 1:02-cv-5646-AWI-SMS PC, 2008 WL 860523, at *4 (E.D. 14 Cal. Mar. 27, 2008). The party opposing discovery has the burden of showing that the discovery 15 should be prohibited, and the burden of “clarifying, explaining or supporting its objections.” 16 Bryant v. Ochoa, No. 07cv200 JM (PCL), 2009 WL 1390794, at *1 (S.D. Cal. May 14, 2009). 17 18 I. SUMMARY OF PENDING DISCOVERY MOTIONS 19 Defendants seek an order compelling further discovery responses to the 20 interrogatories and requests for production of documents served on Plaintiff. Defendants also 21 seek an award of sanctions. ECF No. 54. Plaintiff opposes. See ECF No. 56. 22 23 II. DISCUSSION 24 The principal issue in dispute relates to Plaintiff’s claimed inability to access his 25 legal property so that he can respond to Defendants discovery requests. See ECF No 54, pg. 2. 26 On March 29, 2022, Defendants served two interrogatories and two requests for production of 27 documents relating to the issue of Plaintiff’s exhaustion efforts. See ECF No. 54, pgs. 2-3. 28 According to Defendants, after receiving deficient responses, Defendants attempted to meet and 1 confer with Plaintiff regarding his contentions that his legal documentation was missing and 2 provided Plaintiff an extension with which to respond, and arranged for Plaintiff’s eight boxes of 3 legal property to be sent to him at his current location, California State Prison-Lancaster. See id., 4 pgs. 32-33. In their meet and confer letter, it was explained that Defendants were unable to 5 ascertain which of the “dozens of grievances” related to the current lawsuit and informed Plaintiff 6 that Defendants were entitled to discover information regarding exhaustion of his administrative 7 remedies. Id. At Plaintiff’s deposition on July 13, 2022, Plaintiff was unable to determine from 8 his Appeals Report which of the many grievances filed over the years pertained to the matters at 9 issue in this action. Id., pgs. 4, 41-48. Thereafter, Plaintiff submitted further discovery 10 responses, again stating that the documents were missing and he was unable to respond to the 11 requests. Id., pg. 26. As a result of Plaintiff’s continued failure to respond to the requests, 12 Defendants seek this Court’s intervention. See id., pgs. 10-11. 13 A. Motion to Compel Discovery Responses 14 Defendants argue that Plaintiff’s claims pertain to multiple defendants, which 15 concern alleged conduct spanning a time period from approximately October 30, 2012, through 16 December 20, 2017, during which time Plaintiff filed about forty-three grievances; consequently, 17 Defendants are unable to identify which of Plaintiff’s many grievances relate to the current 18 lawsuit in order to establish whether Plaintiff has satisfied the necessary exhaustion requirements. 19 See ECF 54, pg. 6. Defendants question how Plaintiff knows which documents are missing and 20 argues that Plaintiff must know “what he is looking for in order to state that he knows it is 21 missing”—yet, even at his deposition and after being provided a copy of the Appeals Report, 22 Plaintiff was unable to identify which of the grievances are relevant to his claims here. Id., pg. 7. 23 Finally, Defendants argue that they are entitled to seek, and receive, that evidence Plaintiff has to 24 support his claim that he exhausted his administrative remedies and that Plaintiff’s argument that 25 Defendants have access to his appeals record does not relieve Plaintiff of his discovery 26 obligations. Id., pgs. 7-8. 27 For the below reasons, the Court grants Defendants’ Motion. 28 / / / 1 1. Interrogatories 2 Interrogatory No. 1: Identify the log number for each CDCR Inmate/Parole Form 602 that YOU submitted regarding YOUR claims against the 3 DEFENDANTS in the Amended Complaint (ECF No. 18). Id., pg. 15. 4 Interrogatory No. 2: Describe in detail YOUR efforts to exhaust administrative remedies for YOUR claims against DEFENDANTS in the 5 Amended Complaint (ECF no. 18.). Id., pg. 16 6 Plaintiff’s response: Plaintiff hear-by objects to and refuses to answer defendants request for interrogatories. . . . Due to the fact that plaintiffs work 7 product of legal documents pertaining to this civil case are in legal storage at this time in (Salinas Valley State Prison R&R)? The reader of this document 8 should be able to ascertain the rationale of the problem of plaintiff being unable to respond to defendants request for interrogatories? But if it is not to the 9 defendants please note that CDCR is effectively interfering with plaintiff’s access to court by refusing to give plaintiff his legal documents tht are, and were 10 in legal storage when plaintiff was transferred to (CSP-L.A. County-Lancaster), on (12/23/21)! In regard to interrogatories, if defendants were so inclined, 11 defendants could request an (Appeals Report), which the Institution or parole region appeals coordinator could provide to the defendants upon request to 12 assist with the answers to interrogatories? (See: DOM-SEC-54100.31)? Id., pg. 26. 13 Plaintiff’s further response: Plaintiff hearby objects to the defendants request 14 for interrogatories of set one, due to the fact that plaintiff is being interfered with his access to court by CDCR, which refused to issue legal documents tht 15 pertained to this legal matter that was being held in legal storage at (Salinas Valley State Prison), which is now missing at this time, after being sent to me at 16 current institution. Which plaintiff would have referred to legal documentation to answer interrogatories, which cannot be done at this time? Whereas plaintiff 17 maybe able to answer interrogatories after filing motion for production of documents from defendants? But at this time plaintiff cannot provide defendants 18 with curate response’s to interrogatories due to missing legal documents that are now missing out of work product that was being held in legal storage that was 19 not sent to me for several months for some reasons, even though I 602’ed the situation and 602 was granted, but never acted on” (602-#213789), 20 (Implementation date: 2/17/22)! Whereas on (12/23/21), I specifically requested for my legal property being held in legal storage to be sent with me because I 21 felt something like this would happen! 22 The Court finds that a further response is required by Plaintiff. “Parties may 23 obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or 24 defense,” and information within this scope “need not be admissible in evidence to be 25 discoverable.” Fed. R. Civ. P. 26(b)(1). An interrogatory may relate to any matter that may be 26 inquired into under Rule 26(b), and an interrogatory is not objectionable merely because it asks 27 for an opinion or contention that relates to fact or the application of law to fact. Fed. R. Civ. P. 28 33(a)(2) (quotation marks omitted). Parties are obligated to respond to interrogatories to the 1 fullest extent possible under oath, Fed. R. Civ. P. 33(b)(3), and any objections must be stated with 2 specificity, Fed. R. Civ. P. 33(b)(4); Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981) 3 (“objections should be plain enough and specific enough so that the court can understand in what 4 way the interrogatories are alleged to be objectionable”). 5 A responding party is not generally required to conduct extensive research in order 6 to answer an interrogatory, but a reasonable effort to respond must be made. Gorrell v. Sneath, 7 292 F.R.D. 629, 632 (E.D. Cal. 2013). However, a responding party must “furnish the 8 information available to the party,” answer each interrogatory “separately and fully in writing 9 under oath,” and may not refuse to respond to a requesting party’s discovery request on the 10 ground that the requested information is in the possession of the requesting party. Fed. R. Civ. P. 11 33(b)(1)(B) and (b)(3); Bretana v. Int’l Collection Corp., No. C07-05934 JF (HRL), 2008 WL 12 4334710, at *4 (N.D. Cal. Sept. 22, 2008) (citation and quotation marks omitted). The 13 responding party also has a duty to supplement any responses if the information sought is later 14 obtained or the response provided needs correction. Fed. R. Civ. P. 26(e)(1)(A). 15 First, Plaintiff acknowledged during his deposition that he received the eight boxes 16 previously held in legal storage at Salinas Valley State Prison, but argues that his legal property is 17 missing from those boxes. See ECF No. 54, pgs. 42-43. Then, Plaintiff asserts that after 18 Defendants have responded to the discovery requests, which he intends to propound, only then 19 will he be able to respond to Defendants’ requests. See ECF No. 56, pgs. 1-2. However, Plaintiff 20 asserts that he has been unable to propound discovery due his inability to access the law library 21 and because the A-facility has been in lockdown “most of the time,” which “creates a barrier” for 22 him. Id., pg. 2. Finally, Plaintiff argues that he has served Defendants verified discovery 23 responses, which include his reasons for not being able to respond, and that “if Defendants were 24 so inclined,” they could request an Appeals Report, which would “assist with the answers to 25 interrogatories.” See id., pg. 5. 26 / / / 27 / / / 28 / / / 1 In short, Defendants argue that is unclear what legal property Plaintiff requires in 2 order to respond to questions that could presumably be answered from memory or after a review 3 of his inmate file. See e.g., ECF No. 57, pg. 2. Defendants also question how access to the law 4 library or facility lockdowns prevent Plaintiff from providing factual information in response to 5 their discovery requests, yet these purported occurrences have not prevented Plaintiff from 6 serving inadequate objections or an opposition to this motion; because of this, such limitations 7 should not inhibit Plaintiff from serving complete discovery responses. See ECF No. 57, pg. 2. 8 The Court finds Defendants’ interrogatories are relevant and proportional to the 9 needs of the case as they legitimately seek information pertaining to Plaintiff’s exhaustion of 10 administrative remedies. Plaintiff’s explanation for his inability to respond is insufficient. From 11 Plaintiff’s responses, it is clear that Plaintiff has not made a reasonable effort in responding 12 either from memory or from obtaining his inmate file. Plaintiff may be able to appropriately 13 respond to Defendants’ requests by following prison procedures to obtain the documents he 14 needs to reference. Singleton v. Hedgepath, 2011 WL 1806515, at *8 (E.D. Cal. May 10, 2011) 15 (denying plaintiff’s motion to compel because there was no indication plaintiff requested an 16 Olson review, and it appeared the records were available to plaintiff for inspection and copying). 17 In addition, Plaintiff’s assertion that Defendants can get the information themselves from 18 Plaintiff’s Appeals Report is mistaken and irrelevant. Defendants are not required to guess as to 19 what Plaintiff relies on to substantiate his claims in this action or carry out Plaintiff’s due 20 diligence. Defendants’ motion as to interrogatory numbers 1 and 2 is granted. Plaintiff must 21 further respond in accord with the Federal Rules of Civil Procedure within thirty days. 22 2. Requests for Production of Documents 23 Request for production no. 1: Produce all documents identified in response to Defendant Virga’s Interrogatory No. 1, Set One. ECF No. 5, pg. 22. 24 Request for production no. 2: Produce all DOCUMENTS related to the 25 exhaustion of administrative remedies for your claims against DEFENDANTS in your Amended Complaint (ECF No. 18). Id., pg. 22. 26 Plaintiff’s response: Plaintiff hear-by objects to and refuses to answer 27 defendants request for production of documents . . . . Due to the fact that plaintiffs work product of legal documents pertaining to this civil case are in 28 legal storage at this time in (Salinas Valley State Prison R&R)? The reader of 1 this document should be able to ascertain the rationale of the problem of plaintiff being unable to respond to defendants request, which should be 2 obvious But if it is not to the defendants please know that the CDCR is effectively interfering with plaintiff’s access to court by refusing to give 3 plaintiff his legal documents tht are in legal storage when plaintiff was transferred to (CSP-L.A. County-Lancaster), on (12/23/21)! In regard to 4 production of documents, if defendants were so inclined, defendants could request an (Appeals Report), which the Institution or parole region appeals 5 coordinator could provide to the defendants upon request? (See: DOM-SEC- 54100.31)? Id., pg. 25. 6 Plaintiff’s further response: Plaintiff hearby objects to the defendants request 7 for production of documents, due to the fact that plaintiff is being denied access to legal work product after legal documentation was suppose to be sent with 8 legal property that was being held in legal storage at (Salinas Valley State Prison), which is now missing at this time? Whereas plaintiff may be able to 9 provide documents after filing motion to defendants for production of documents shortly. But defendants have all viable documentation requested of 10 plaintiff considering tht they have access to my entire medical record and all other documentation CDCR has to offer? Id., pg. 60. 11 12 The Court finds that a further response is required by Plaintiff. Rule 34 requests 13 may be used to inspect documents, tangible things, or land in the possession, custody, or control 14 of another party. A party is deemed to have control over documents if he or she has a legal right 15 to obtain them. Allen v. Woodford, No. CVF051104OWWLJO, 2007 WL 309945, at *6 (E.D. 16 Cal. Jan. 30, 2007), modified on reconsideration, No. 1:05-CV-1104 OWW NEW, 2007 WL 17 9747771 (E.D. Cal. Mar. 16, 2007) (quoting In re Flag Telecom Holdings, Ltd. Sec. Litig., 236 18 F.R.D. 177, 181 (S.D.N.Y.2006) (rejecting defendant’s argument that documents belonged to his 19 employer and holding “employees are permitted to utilize the documents in the course of 20 employment, as they must in order to perform their jobs, and therefore [defendant] has the 21 practical ability to obtain them”)). 22 A party responding to a document request is under an affirmative duty to seek 23 information reasonably available to him from his employees, agents, or others subject to his 24 control, not just that information within his immediate knowledge or possession. Meeks v. 25 Parsons, No. 1:03–cv–6700–LJO–GSA, 2009 WL 3003718, *4, (E.D. Cal. Sept. 18, 2009); 26 Courts have assumed that a party has control of documents in the possession of another and 27 ordered the party to produce relevant documents. See Zackery v. Stockton Police Dep’t, No. CIV 28 S–05–2315 MCE DAD P, 2007 WL 1655634, *3-4, (E.D. Cal. June 7, 2007) (“directing” counsel 1 for defendants to obtain and produce records in possession of current employer, the Stockton 2 Police Department). 3 A party has an obligation to conduct a reasonable inquiry into the factual basis of 4 his responses to discovery. Perkins v. City of Modesto, No. 119CV00126LJOEPG, 2020 WL 5 1333109, at *9 (E.D. Cal. Mar. 23, 2020) (finding party has obligation to exercise due diligence 6 and make a reasonable inquiry to determine whether responsive documents exist). Based on that 7 inquiry, a party responding to a request for production is under “‘an affirmative duty to seek that 8 information reasonably available’ to it and make an appropriate production of responsive 9 documents.’” Hartline v. Nat’l Univ., No. 2:14-CV-00635-KJM-AC, 2018 WL 1014611, at *3 10 (E.D. Cal. Feb. 22, 2018) (quoting Gray v. Faulkner, 148 F.R.D. 220, 223 (N.D. Ind. 1992); Kaur 11 v. Alameida, 2007 WL 1449723, *2 (E.D. Cal. May 15, 2007) (ordering defendants to conduct 12 additional research for responsive documents and reminding defendants of their “duty under Rule 13 34 to conduct a diligent search and reasonable inquiry in effort to obtain responsive documents”). 14 If no responsive documents or tangible things exist, the responding party should so 15 state with sufficient specificity to allow a court to determine whether the party made a reasonable 16 inquiry and exercised due diligence. Uribe v. McKesson, No. 08cv1285 DMS (NLS), 2010 WL 17 892093, at *2-3 (E.D. Cal. Mar. 9, 2010). If responsive documents exist but the responsive party 18 claims lack of possession, control, or custody, the party must so state with sufficient specificity to 19 allow the court (1) to conclude that the responses were made after a case-specific evaluation and 20 (2) to evaluate the merit of that response. Ochotorena v. Adams, No. 1:05–cv–01525–LJO–DLB 21 (PC), 2010 WL 1035774, at *3-4 (E.D. Cal. Mar. 19, 2010). However, a responding party “may 22 not refuse to respond” on the ground that the requested information is in the possession of the 23 requesting party.” Bretana, 2008 WL 4334710, at *4 (citation and quotation marks omitted). 24 Like above, at the heart of Plaintiff’s argument is that, while he received his eight 25 boxes of legal property, the documents Plaintiff requires in order to respond to Defendants’ 26 discovery requests is still missing. See ECF No. 54, pgs. 42-43. From Plaintiff’s opposition, it 27 seems that Plaintiff intends on requesting documents from Defendants and then he “will then send 28 them what they are requesting” which are the “rejected and cancelled 602’s filled [sic] against 1 defendants” that are still missing. ECF No. 57, pgs. 2 & 6. Plaintiff insists that “if Defendants 2 were so inclined,” they could request an Appeals Report. See id., pg. 6. Defendants maintain that 3 Plaintiff is free to access his inmate file through an Olson review1 but failure to do so does not 4 absolve him from his discovery obligations; thus, Plaintiff’s argument that Defendants have 5 access to the documents they seek is erroneous and Defendants are entitled to know all requested 6 evidence Plaintiff has to support his exhaustion claims and which grievances apply to this action. 7 See id. Defendants further provide that, during Plaintiff’s deposition, Plaintiff himself was 8 unable to determine which of his grievances applied here. See ECF No. 54, pgs. 7, 40-48. 9 The Court does not find Plaintiff’s position persuasive. The documents requested 10 are both relevant and proportional to the needs of the case as they relate to Plaintiff’s exhaustion 11 of administrative remedies. Plaintiff provides no information as to what documents are missing 12 that would allow him to properly respond to Defendants’ discovery requests. Plaintiff also fails 13 to provide any information as to what efforts he has made to retrieve responsive documents, such 14 as requesting the relevant grievances from the CDCR. It is not the responsibility of Defendants to 15 sift through Plaintiff’s numerous grievances and guess which ones Plaintiff is relying on to 16 substantiate his claims in this matter. As stated above, responding that the requested documents 17 are equally available from the requesting party’s own records is generally not grounds upon 18 which to object or refuse to produce documents. See Bretana, 2008 WL 4334710, at *5. 19 Plaintiff is obligated to perform the due diligence required in discovery and it is not Defendants’ 20 responsibility to carry out that duty for Plaintiff. Therefore, Defendants’ motion as to document 21 requests numbers 1 and 2 is granted. Plaintiff must further respond in accord with the Federal 22 Rules of Civil Procedure within thirty days. 23 / / / 24 / / / 25 / / / 26 27 1 An Olson review refers to the right of California inmates to inspect all non-confidential records maintained in their central and medical files, as established in In re Olson, 37 Cal. App. 28 3d 783 (1974). 1 B. Request for Sanctions 2 Federal Rule of Civil Procedure 37 pertains to the failure of parties to cooperate 3 in discovery and sanctions. If a party seeking a motion to compel discovery responses is granted, 4 a court must, after an opportunity to be heard, “require the party or deponent whose conduct 5 necessitated the motion, the party or attorney advising that conduct, or both” to pay that moving 6 party’s reasonable expenses in making the motion, including reasonable attorney’s fees. See Fed. 7 R. Civ. P. 37(a)(5)(A) (emphasis added). If, however, the movant failed to attempt in good faith 8 to obtain the discovery without court intervention, the opposing party was substantially justified 9 in its response, or other circumstances existed in which an award of expenses would be unjust, a 10 court must not order monetary sanctions. See id. 11 The Local Rules of the Eastern District of California, however, provide wide 12 latitude to the Court with regard to sanctions. See Local Rule 110. Courts frequently refuse to 13 impose monetary sanctions on indigent parties.; Thomas v. Gerber Prods, 703 F.2d 353, 357 (9th 14 Cir. 1987) (finding abuse of discretion to impose sanction that includes a requirement that cannot 15 be performed); see also Lucero v. Pennella, No. 1:18-cv-01448 NONE SAB, 2020 WL 4059552 16 at *4 (E.D. Cal. July 20, 2020) (declining to impose monetary sanctions in light of plaintiff’s pro 17 se and previously incarcerated status); Leonard v. Kaur, No. 2:19-cv-2271 DMC P, 2021 WL 18 242739 at *2 (E.D. Cal. Jan. 25, 2021) (declining to order sanctions or expenses given plaintiff's 19 status as a prisoner proceeding in forma pauperis); Woolery v. Shasta Cnty. Jail, No. 20 221CV0166TLNDBP, 2022 WL 2452293, at *2 (E.D. Cal. July 6, 2022), report and 21 recommendation adopted, No. 2:21-CV-00166-TLN-DB, 2022 WL 4292290 (E.D. Cal. Sept. 16, 22 2022) (denying motion for sanctions because plaintiff was formerly incarcerated and was 23 proceeding in forma pauperis). 24 Because plaintiff is currently incarcerated and proceeding in forma pauperis, at 25 this time, the Court denies Defendants’ request for sanctions. Plaintiff is cautioned, however, that 26 failure to comply with this order may lead to the issuance of appropriate sanctions, including the 27 terminating sanction of dismissal. See Fed.R.Civ.P. 41(b); Local Rule 110. 28 / / / 1 Il. CONCLUSION 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. Defendants’ motion to compel discovery, ECF No. 54, is granted in part 4 | and denied in part. 5 2. Defendants’ motion to compel further discovery responses from Plaintiff is 6 | granted. Plaintiff shall serve supplemental discovery responses to Defendants’ interrogatories 7 || numbers | and 2 and Defendants’ requests for documents numbers | and 2 consistent with the 8 || Federal Rules of Civil Procedure, and this order, within 30 days of the date of this order. 9 3. The Court denies Defendants’ request for sanctions. 10 4. The deadline to file dispositive motions is extended to 90 days from the 11 || date of this order. 12 13 | Dated: May 4, 2023 Ss..c0_, M4 DENNIS M. COTA 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 1]