(PC) Givens v. Palagummi ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FRANCOIS GIVENS, No. 2:19-cv-0017 DAD KJN P 12 Plaintiff, 13 v. 14 CALIFORNIA DEPARTMENT OF ORDER CORRECTIONS AND 15 REHABILITATION, et al., 16 Defendants. 17 18 Plaintiff is a former state prisoner, proceeding pro se. Plaintiff’s multiple motions to 19 compel discovery are fully briefed. As set forth below, the motions are granted in part and denied 20 in part. 21 Plaintiff’s Allegations 22 This action proceeds on plaintiff’s second amended complaint (ECF No. 28) against 23 defendants S. Palagummi, a retired physician; R. Chapnick, chief medical executive at Deuel 24 Vocational Institution; and C. Conklin, a staff services manager II in regulations at California 25 Correctional Health Care Services (ECF No. 46 at 2). Plaintiff raises Eighth Amendment medical 26 deliberate indifference claims and related failure to protect claims; First Amendment retaliation 27 claims, and various state law claims. 28 //// 1 Motions to Compel Discovery 2 A. Standards Governing Discovery Disputes 3 Under Rule 37 of the Federal Rules of Civil Procedure, “a party seeking discovery may 4 move for an order compelling an answer, designation, production, or inspection.” Fed. R. Civ. P. 5 37(a)(3)(B). The court may order a party to provide further responses to an “evasive or 6 incomplete disclosure, answer, or response.” Fed. R. Civ. P. 37(a)(4). “District courts have 7 ‘broad discretion to manage discovery and to control the course of litigation under Federal Rule 8 of Civil Procedure 16.’” Hunt v. County. of Orange, 672 F.3d 606, 616 (9th Cir. 2012) (quoting 9 Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828, 833 (9th Cir. 2011)). 10 The party moving to compel bears the burden of informing the court (1) which discovery 11 requests are the subject of his motion to compel, (2) which of the responses are disputed, (3) why 12 he believes the response is deficient, (4) why defendants’ objections are not justified, and (5) why 13 the information he seeks through discovery is relevant to the prosecution of this action. McCoy 14 v. Ramirez, 2016 WL 3196738 at *1 (E.D. Cal. 2016); Ellis v. Cambra, 2008 WL 860523, at *4 15 (E.D. Cal. 2008). 16 The purpose of discovery is to “remove surprise from trial preparation so the parties can 17 obtain evidence necessary to evaluate and resolve their dispute.” United States v. Chapman 18 Univ., 245 F.R.D. 646, 648 (C.D. Cal. 2007) (quotation and citation omitted). Rule 26(b)(1) of 19 the Federal Rules of Civil Procedure offers guidance on the scope of discovery permitted: 20 Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the 21 needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access 22 to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense 23 of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to 24 be discoverable. 25 Id. “Relevance for purposes of discovery is defined very broadly.” Garneau v. City of Seattle, 26 147 F.3d 802, 812 (9th Cir. 1998). “The party seeking to compel discovery has the burden of 27 establishing that its request satisfies the relevancy requirements of Rule 26(b)(1). Thereafter, the 28 party opposing discovery has the burden of showing that the discovery should be prohibited, and 1 the burden of clarifying, explaining or supporting its objections.” Bryant v. Ochoa, 2009 WL 2 1390794 at *1 (S.D. Cal. May 14, 2009) (internal citation omitted). 3 B. Local Rule 251 4 As set forth in the court's scheduling order, “unless otherwise ordered, Local Rule 251 5 shall not apply.” (ECF No. 67 at 5.) 6 Discussion 7 A. Alleged Failure to Meet and Confer 8 Plaintiff objects that certain defendants failed to meet and confer concerning discovery 9 disputes. Even if a particular defendant failed to follow the meet and confer process under Rule 10 37(a) of the Federal Rules of Civil Procedure, plaintiff’s objections are overruled.1 The court 11 relieved the parties of the meet and confer requirement under Local Rule 251 because plaintiff 12 was incarcerated at the time this action was filed and proceeds pro se, it is difficult for the parties 13 to engage in face to face conferences. 14 B. Attempts to Expand Discovery Through Meet and Confer 15 The court acknowledges and appreciates plaintiff’s efforts to resolve discovery disputes 16 by conferring with defendants’ attorney. However, as addressed in more detail below, the meet 17 and confer process does not include an ability to revise a discovery request and then challenge a 18 defendant’s failure to respond to a proposed revision. Indeed, counsel informed plaintiff that 19 “defendants would not agree to any expanded discovery as that was not the purpose of the parties’ 20 stipulated extension.” (ECF No. 101-1 at 5.) If, through the meet and confer process, a party 21 determines that a different request needed to be propounded, such party is required to propound a 22 second set of discovery so that it is clear a response is sought to the revised request, both to the 23 opposing party and to the court when addressing any subsequent motion to compel. 24 The court turns to the merits of plaintiff’s motions. 25 1 Federal Rule of Civil Procedure 37(a) contains a requirement that the movant attempt to resolve any disputes prior to seeking court intervention. However, while compliance with that rule has 26 not been explicitly excused and the court encourages parties to attempt to resolve disputes prior to 27 seeking court intervention, because plaintiff was incarcerated at the time this action was filed and proceeds pro se, it is not enforced here and does not provide grounds for granting plaintiff’s 28 motions. 1 C. Requests for Admissions 2 Rule 36 of the Federal Rules of Civil Procedure provides that “[a] party may serve on any 3 other party a written request to admit, for purposes of the pending action only, the truth of any 4 matters within the scope of Rule 26(b)(1) relating to: (A) facts, the application of law to fact, or 5 opinions about either; and (B) the genuineness of any described documents.” Fed. R. Civ. P. 6 36(a). 7 If a matter is not admitted, the answer must specifically deny it or state in detail why the answering party cannot truthfully admit or 8 deny it. A denial must fairly respond to the substance of the matter; and when good faith requires that a party qualify an answer or deny 9 only a part of a matter, the answer must specify the part admitted and qualify or deny the rest. The answering party may assert lack of 10 knowledge or information as a reason for failing to admit or deny only if the party states that it has made reasonable inquiry and that 11 the information it knows or can readily obtain is insufficient to enable it to admit or deny. 12 13 Fed. R. Civ. P. 36(a)(4). 14 Unlike the failure to respond to other discovery requests, upon the failure to respond to a 15 request for admission (“RFA”) the matter is deemed admitted. Fed. R. Civ. P. 36(a)(3). Rule 16 36(a) is self-executing and the failure to timely respond to requests for admissions results in 17 automatic admission of the matters requested. F.T.C. v. Medicor LLC., 217 F.Supp.2d 1048, 18 1053 (C.D. Cal. 2002) (citing SCHWARZER, TASHIMA & WAGSTAFFE, FED. CIV. PROC. 19 BEFORE TRIAL at ¶¶ 811-12 (2002)). Once a matter is admitted, it “is conclusively established 20 unless the court on motion permits withdrawal or amendment of the admission” pursuant to Rule 21 36(b). Conlon v. United States, 474 F.3d 616, 621 (9th Cir. 2007). 22 Defendant Palagummi 23 RFA Nos. 1-4, 8-13, 17, 20-22 & 26-272 24 Plaintiff asks the court to strike defendant Palagummi’s objections from the following 25 supplemental responses: Numbers 1-4, 8-13, 17, 20-22, and 26-27. (ECF No. 93.) However, 26 defendant Palagummi admitted to each of these supplemental requests. (ECF No. 101-2 at 90-97, 27 2 Plaintiff withdrew his challenge to RFA Nos. 5, 6, 14-16, 18-19, 23-24 & 28-30. (ECF No. 93 28 at 10, 20, 22, 26, 31.) 1 98-101, 103-04.) Thus, as argued by defendant, this court is not required to address the 2 sufficiency of such objections. Fed. R. Civ. P. 36(a)(6). 3 RFA No. 7 Plaintiff rephrases Request No. 7 as follows: 4 The 2009 CPHCS Pain Management Guidelines, under Section II ‘CPHCS Pain Management: Guideline Summary’, Subsection A. 5 ‘General Principles’ describes a “step-wise approach” for the use of medications, i.e., “Step One: Non-opioid analgesics +/- adjuvants”, 6 “Step Two: Weak opioid +/- adjuvants”, and Step Three: Strong opioid +/- adjuvants” (see Exhibit C at p. 7). 7 SUPPLEMENTAL RESPONSE TO RFA NO. 7: Defendant objects 8 to this request on the grounds it is vague and ambiguous as to the terms and phrases, “describes,” “a step-wise approach’ for the use of 9 medications,” “i.e.,” and “Exhibit C at p. 7.” defendant also objects on the grounds it is compound. Defendant also objects to this request 10 on the grounds it is not relevant to any claim or defense, or is not likely to lead to the discovery of admissible evidence. Subject to and 11 without waiving the above objections, Defendant admits the cited section contains a subpart titled “stepwise approach.” Save as so 12 admitted, based on the above objections, Defendant is unable to admit or deny the request, and on this basis, denies it.” 13 14 (ECF No. 101-2 at 93 (in pertinent part).) 15 The court overrules plaintiff’s objection to defendant’s response to request 7, inasmuch as 16 defendant admitted that the cited portion of the 2009 CPHCS Pain Management Guidelines 17 contains a subpart titled “step-wise approach.” (ECF No. 101-2 at 93.) In his reply, plaintiff 18 complains that defendant’s response is incomplete because it only admits a portion of the 19 wording. (ECF No. 102 at 11.) However, plaintiff did not provide a copy of his Exhibit C, so the 20 court is unable to confirm that such additional wording is included in the guidelines contained 21 therein. Plaintiff did provide a copy of the State of California Prison Health Care Services Pain 22 Management Guidelines with his motion to compel, but he failed to identify what page of the 65 23 page document he refers. (ECF No. 93-6 at 1-71.) If the 2009 guidelines include such wording, 24 the guidelines speak for themselves. No further response is required. 25 RFA No. 22: During the 9-2-15 encounter you informed Plaintiff that you would not issue narcotic pain medication. 26 RESPONSE TO RFA NO 22: Defendant objects to this request on 27 the grounds it is vague and ambiguous as to the terms and phrases, “encounter,” “you informed,” and “you would not issue.” Subject to 28 and without waiving the above objections, Defendant admits. 1 Opioids were not medically indicated at that time. 2 (ECF No 93 at 24-25.) 3 Revised RFA No. 22: Despite objections, Defendant Palagummi admits Request No. 22, i.e., that during the 9-2-15 encounter 4 [Defendant] informed Plaintiff that [Defendant] would not issue narcotic pain medication. However, this admission was also 5 qualified by Defendnat [sic] Palagummi by adding the phrase “Opioids were not medically indicated at that time.” This question as 6 to whether opioids were medically indicated at that time was neither asked nor encompassed within the substance of the request, and is at 7 odds with the scope of Rule 36(a)(4) (see Chu De Quebec- Universite Laval v. Dreamscape Development Group Holdings Inc , Case No 8 4:21-cv-182 SDJ, (E.D. Tex, May 27, 2022) [the rule does not allow a party to qualify an admission by making it subject to an objection]; 9 see also Turner v. California Forensic Medical Group, Case 2:09- cv3040, ED Cal 2013 [A party may admit, deny or object to a request 10 for admission as it is written, but may not alter or rewrite the request to admit something that was not asked]). 11 The portion of Defendant Palagummi's answer which states “Opioids 12 were not medically indicated at that time,” should be stricken from the admission, and Plaintiff rephrases Request No. 21 as follows: 13 “During the 9-2-15 encounter Defendant Palagummi informed 14 Plaintiff that Defendant would not issue narcotic pain medication.” 15 SUPPLEMENTAL RESPONSE TO RFA NO. 22: Defendant objects to this request on the grounds it is vague and ambiguous as 16 to the terms and phrases, “encounter,” “informed,” and “Defendant would not issue.” Subject to and without waiving the above 17 objections, Defendant admits. 18 (ECF No. 101-2 at 100-01.) Although defendant admitted plaintiff’s revised RFA, plaintiff asks 19 the court to strike defendant’s qualified response to plaintiff’s original RFA. However, because 20 defendant admitted plaintiff’s revised RFA, the court is not required to address defendant’s prior 21 response. Fed. R. Civ. P. 36(a)(6). 22 RFA No. 25: During that 9-22-15 encounter you determined that there was no medical indication that Plaintiff required stronger pain 23 medication. 24 RESPONSE TO RFA NO 25: Defendant objects to this request on the grounds it is vague and ambiguous as to the terms and phrases, 25 “encounter,” “determined,” “no medical indication,” “required,” and “stronger pain medication.” Subject to and without waiving the 26 above objections, Defendant denies. This 9/22/15 encounter was to discuss hypertension changes to blood pressure medication. 27 Revised RFA No. 25: Defendant Palagummi, based upon objecting 28 to vagueness and ambiguities in relation to substance, denies Request 1 No. 25, i.e, that during that 9-22-15 encounter [Defendant] determined that there was no medical indication that Plaintiff 2 required stronger pain medication. That denial was [] qualified with material which was not asked, i.e., “This 9/22/15 encounter was to 3 discuss hypertension and changes to blood pressure medication,” which is an improper response under Rule 36(a)(4), and must be 4 stricken. In order to expedite justice and to conform to evidence, Plaintiff rephrases Request No. 25 as follows: 5 “Prior to October 16, 2015 Defendant Palagummi did not make a 6 medical determination that pain medication in addition to or other than150mg of Oxcarbazepine was medically indicated for Plaintiff.” 7 SUPPLEMENTAL RESPONSE TO RFA NO. 25: Defendant 8 objects to this request on the grounds it is vague and ambiguous as to the terms and phrases, “Prior to October 16, 2015,” “did not make 9 a medical determination,” “pain medication,” “in addition to or other than150mg of Oxcarbazepine,” and “was medically indicated for 10 Plaintiff.” Defendant also objects to this request on the grounds it is compound and vague as to time. Defendant also objects to this 11 request on the grounds that it is not relevant to any claim or defense, or is not likely to lead to the discovery of admissible evidence. 12 Subject to and without waiving the above objections, Defendant 13 responds as follows: After a diligent review of records, Defendant does not have a sufficient recollection regarding the events to admit 14 or deny, and on that basis, denies. 15 (ECF No. 101-2 at 102-03.) 16 Plaintiff seeks further response to request 25, arguing that defendant Palagummi originally 17 offered a qualified denial by denying a question not asked, and then in the supplemental response, 18 states that after a diligent review of the records, defendant does not have a sufficient recollection 19 to admit or deny. Plaintiff claims that defendant’s “‘diligent review’ failed to discover medical 20 records which he claims provides the answer to the admission.” (ECF No. 102 at 11, citing see 21 ECF Nos. 93 at 25:15-28-1, and 93-8.) However, the citation to ECF No. 93 is plaintiff’s RFA 22 No. 22; although plaintiff identifies a specific medical record in RFA No. 22, he fails to do so in 23 the revised RFA No. 25. Moreover, in his reply, plaintiff concedes that in his motion to compel 24 he improperly referred to ECF No. 93-8 as Exhibit 5. (ECF No. 102 at 11 n.4.) Plaintiff’s 25 delayed correction does not entitle him to an additional response. 26 The undersigned finds plaintiff’s RFA No. 25, even as modified, to be unclear because it 27 refers to medical records “Prior to October 16, 2015.” If plaintiff intended to seek an admission 28 from defendant Palagummi as to a particular medical record, plaintiff should have identified such 1 record in the request. Defendant is not required to speculate as to which medical record plaintiff 2 referred to in the request. Finally, defendant cannot be required to answer when defendant, after 3 diligent review of records, does not have sufficient recollection concerning events that took place 4 in 2015 or was aware of which medical record plaintiff contemplated. No further response to 5 RFA No. 25 is required. 6 Defendant Chapnick 7 Plaintiff seeks further responses to RFAs Nos. 1, 15 and 20, and seeks an order deeming 8 RFAs Nos. 4-8, 10, and 12-13 admitted based on defendant’s failure to respond.3 9 RFA Nos. 1 & 20 10 As argued by defendant, defendant Chapnick admitted to number 1 and denied number 20. 11 Because such responses comply with Rule 36(a)(4), the court is not required to review the 12 sufficiency of the objections. Fed. R. Civ. P. 36(a)(6). 13 RFA No. 15: In that 10-19-15 response you stated that Dr. Newman documented that Plaintiff was observed walking with a normal gait 14 in the prisoner holding yard on 10-16-15, but 15 “[o]nce you were called to the clinic, [Plaintiff] began to walk with a limp, carrying your cane. Dr. Newman further documented you 16 became uncooperative until after an officer was called in, at which time your demeanor improved.” 17 RESPONSE TO RFA NO. 15: Defendant objects to this request on 18 the grounds it is vague and ambiguous as to the terms and phrases, “In that 10-19-15 response” and “you stated.” Defendant objects to 19 this request on the grounds that it is unintelligible as drafted. Defendant also objects to this request on the grounds that it is 20 compound, not relevant to any claim or defense, and not likely to lead to the discovery of admissible evidence. 21 Subject to and without waiving the above objections, Defendant 22 responds as follows: Based on the above objections, Defendant is unable to admit or deny the request, and on that basis, denies. 23 24 (ECF Nos. 96 at 10; 101-2 at 83.) 25 Informal Attempt to Resolve RFA No. 15: Based upon objections and evidence contained in Defendant DeHerrera’s production 26 responses, Plaintiff challenged the dispute and offered to rewrite Admission No 15 as “Defendant Chapnick's 10-19-15 2nd level 27 28 3 Plaintiff withdrew RFA Nos. 2, 3, 9, 11, 14, 16-19. (ECF No. 96 at 8-9, 11.) 1 response to Log# DVIHC 15045270 provides, in relevant part: 2 “You were interviewed and examined by H. Newman, M.D., on October 15, 2015, regarding the aforementioned issues documented 3 within this Health Care Appeal. Dr. Newman documented that you were observed walking in the Holding Yard, prior to your 4 appointment, with a normal gait; however, once you were called into the clinic, you began to walk with a limp, carrying your cane. Dr. 5 Newman further documented you became uncooperative until an officer was called in; at which time, your demeanor improved” (see 6 AGO 010).” (Exhibit C at p. 4).” 7 (ECF No. 96 at 10.) 8 Defendant’s relevance objection is overruled. However, RFA No. 15 is compound, vague, 9 ambiguous and unintelligible as drafted. Indeed, plaintiff’s attempt to rewrite RFA No. 15 10 confirms the validity of such objections. Defendant’s objections are sustained, and no further 11 response to RFA No. 15 is required. 12 Failure to Answer 13 Defendant Chapnick failed to answer requests 4 to 8 and 10-13, but requests leave to 14 respond to such requests based on multiple issues. First, plaintiff mailed his discovery requests to 15 plaintiff’s counsel at her San Francisco address in September of 2022, despite counsel having 16 moved her office to Oakland in late August 2021. Counsel declares that support staff updated 17 counsel’s office address on letterheads, pleadings, and through ECF, and counsel updated her 18 signature block to reflect her current address. (ECF No. 101-1 at 1-2.) On October 3, 2022, 19 support staff in the San Francisco office scanned and emailed the discovery requests to 20 defendants’ counsel. Subsequently, the hard copies were forwarded to the Oakland office where 21 support staff again scanned and emailed the documents to counsel. (ECF No. 101-1 at 3.) 22 Because the second set was “perceivably” “duplicate,” counsel only referred to the first set of 23 discovery scanned by the San Francisco office. (Id.) 24 Second, defendants’ counsel did not review or handle the hard copies of plaintiff’s 25 discovery requests because counsel primarily works remotely and receives all incoming mail as 26 scanned documents. (Id.) 27 Third, counsel for defendant declares that from October through December of 2022, she 28 was “heavily preoccupied with litigation matters in other cases.” (ECF No. 101-1 at 3-4.) 1 Counsel was similarly preoccupied with other litigation obligations in January of 2023. (ECF No. 2 101-1 at 6.) Finally, it was not until March 18, 2023, while preparing responses to the instant 3 discovery motions that counsel viewed another electronic copy of plaintiff’s RFAs to defendant 4 Chapnick which contained three pages of RFAs rather than two. (Compare ECF No. 101-2 at 26- 5 28 to ECF No. 101-2 at 248-51.) 6 The Federal Rules provide that: 7 A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party 8 a written answer or objection addressed to the matter and signed by the party or its attorney. A shorter or longer time for responding may 9 be stipulated to under Rule 29 or be ordered by the court. 10 Fed. R. Civ. P. 36(a)(3). Further, 11 [a] matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or 12 amended. Subject to Rule 16(e), the court may permit withdrawal or amendment if it would promote the presentation of the merits of the 13 action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits. 14 An admission under this rule is not an admission for any other purpose and cannot be used against the party in any other proceeding. 15 16 Fed. R. Civ. P. 36(b) (emphasis added). 17 Under Rule 36, RFA Nos. 4, 5, 6, 7, 8, 10, 11, 12 and 13 are deemed admitted as of 18 October 28, 2022, thirty days after plaintiff served the RFAs on counsel for defendant Chapnick 19 (ECF No. 101-2 at 28) and Chapnick failed to answer. Defendant’s counsel provides no legal 20 authority to support her request that the court allow defendant to belatedly answer the RFAs. 21 Rather, Rule 36 requires that counsel file a motion to amend or withdraw such admissions. Fed. 22 R. Civ. P. 36(b) 23 Moreover, even if the court had such authority, the undersigned is not persuaded by 24 counsel’s myriad excuses. Defendant’s counsel does not address her failure to notice that she 25 responded to a set of RFAs that was clearly missing page two. Plaintiff numbered the pages of 26 his request, and page two was missing in the scanned document counsel first reviewed. Instead, 27 counsel answered only RFA Nos. 1-3 and 15-20, also ignoring that RFA Nos. 4 through 14 were 28 missing. Further, on December 19, 2022, plaintiff mailed to defendant’s counsel plaintiff’s 1 informal attempt to resolve this discovery dispute, clearly noting defendant’s failure to respond 2 by each of the relevant requests. (ECF No. 96-3 at 3-6.) Yet counsel declares it was not until 3 March 18, 2023, while preparing responses to plaintiff’s motions to compel, that counsel viewed 4 another electronic copy of plaintiff’s RFAs to defendant Chapnick that contained the missing 5 page. 6 In addition, while counsel for defendant appears to contend that plaintiff mailed his 7 discovery to the wrong address, counsel is mistaken. Review of the court docket reflects no 8 change of address filed by counsel for defendants.4 The Court’s Local Rules provide that: 9 Each appearing attorney and pro se party is under a continuing duty to notify the Clerk and all other parties of any change of address or 10 telephone number of the attorney or the pro se party. Absent such notice, service of documents at the prior address of the attorney or 11 pro se party shall be fully effective. Separate notice shall be filed and served on all parties in each action in which an appearance has 12 been made. 13 Local Rule 182(f). Just as plaintiff is required to file a formal notice of change of address, so is 14 counsel for defendants. Simply changing an address on a court filing is insufficient. 15 Thus, defendant Chapnick’s request that defendant be allowed to belatedly answer RFA 16 Nos. 4, 5, 6, 7, 8, 10, 11, 12 and 13 is denied without prejudice. 17 Defendant Conklin DeHerrera 18 RFA Nos. 5, 9 and 105 19 Plaintiff asks the court to strike defendant DeHerrera’s objections from the following 20 responses: Numbers 5, 9 and 10. (ECF No. 97.) However, defendant DeHerrera admitted to 21 each of these supplemental requests. (ECF No. 101-2 at 90-97, 98-101, 103-04.) Thus, as argued 22 by defendant, this court is not required to address the sufficiency of such objections. Fed. R. Civ. 23 4 In light of counsel’s declaration that her address had been changed in ECF and observing that 24 the court’s docket sheet now reflects counsel’s address in Oakland, not San Francisco, the court asked CM/ECF staff in the Clerk’s Office how such change took place. Staff identified counsel’s 25 last filing with her San Francisco address on August 31, 2021, in Case No. 2:20-cv-0520, immediately after which counsel updated her profile in CM. Such update changed counsel’s 26 address on the dockets for her cases but did not trigger a notice of change of address on the court 27 dockets or provide plaintiff any notice of change of address as required under Rule 182(f). 28 5 Plaintiff withdrew RFA Nos. 1, 4, 6-8, 14-19 & 21-30. (ECF No. 97 at 6, 9, 10-11, 16-17, 19.) 1 P. 36(a)(6). No further response is required for RFAs Nos. 5, 9 and 10. 2 RFA NO. 2: From July 2014 to July 2015 you worked as Staff Services Manager I (‘SSM I’) for CDHCS. 3 RESPONSE TO RFA NO. 2: Defendant objects to this request on 4 the grounds it is vague and ambiguous as to the term, “CDHCS.” Defendant also objects to this request on the grounds that it is not 5 relevant to any claim or defense and not likely to lead to the discovery of admissible evidence. 6 Subject to and without waiving the above objections, Defendant 7 responds as follows: Defendant denies. 8 (ECF No. 97 at 6; 101-2 at 48.) 9 REVISED RFA NO. 2: “The attached resume of Defendant C. DeHerrera's (Exhibit B) states that from July 2014 to July 2015 10 Defendant worked as a Staff Services Manager I at the California Department of Public Health.” … Inf Res at 2:18-20. 11 12 (ECF No. 97 at 7.) 13 Defendant DeHerrera denied RFA No. 2; no further response is required. Further, to the 14 extent plaintiff attempted to proffer an unauthenticated resume to contradict defendant’s response 15 to RFA No. 2, plaintiff’s attempt fails. Contrary to plaintiff’s argument, the court does not 16 authenticate documents submitted by parties in the discovery process. Moreover, the resume 17 plaintiff appended to the revised request included no source information. No further response to 18 RFA No. 2 is required. 19 RFA No. 3: One of the desired qualifications for SSM I is experience in interpreting and applying current laws, rules, policies and 20 procedures. 21 RESPONSE RFA NO. 3: Defendant objects to this request on the grounds it is vague and ambiguous as to the terms and phrases, 22 “desired qualifications,” “interpreting and applying,” and “current laws, rules, policies and procedures.” Defendant also objects to this 23 request on the grounds that it is vague as to time, compound, not relevant to any claim or defense, and not likely to lead to the 24 discovery of admissible evidence. Defendant also objects to this request on the grounds that it is argumentative. 25 Subject to and without waiving the above objections, Defendant 26 responds as follows: Based on the above objections, Defendant is unable to admit or deny the request, and on that basis, denies. 27 28 (ECF No. 97 at 7-8; 101-2 at 48-49.) 1 Plaintiff challenged defendant’s response and offered to rewrite RFA No. 3 as: 2 Under ‘Staff Services Manager Series’ on the California Department of Human Resources website, the scope of employment for the staff 3 services manager series is listed as: 4 “This series specification describes three levels used throughout State service in the performance of a wide variety of fiscal, 5 management, and staff services functions including such areas as personnel, budget, management analysis, administrative services, 6 program evaluation and planning, and policy analysis and formulation. Incumbents in this series are typically subject-matter 7 generalists who have demonstrated possession of the strong analytical skills, supervisory and/or managerial abilities, and 8 personal qualifications to succeed in a broad range of fiscal, management, staff services, and related settings. Incumbents in this 9 series are responsible for the effective resolution of a broad range of governmental, supervisory, and/or managerial problems. They 10 conduct and/or review analytical studies and surveys; formulate procedures, policies, and program alternatives; make 11 recommendations on a broad spectrum of administrative and program-related problems; review and analyze proposed legislation 12 and advise management on its impact or potential impact; represent the State or a given department as assigned; and to do other related 13 work.” (Exhibit C). … Inf Res at 3:1-12. 14 (ECF No. 97 at 8.) 15 Plaintiff argues that this request is relevant because it tends to show that defendant knew 16 that federal litigation had established that CDCR was incapable of providing adequate medical 17 care because of overcrowding, and defendant knew or should have known that defendant 18 Chapnick’s participation during multiple levels of the inmate appeal review process was 19 improper. Plaintiff argues such evidence weighs in favor of plaintiff’s claim that defendant 20 DeHerrera failed to protect plaintiff against the allegedly unconstitutional actions of other 21 defendants. 22 The undersigned is unpersuaded by plaintiff’s arguments. That said, if plaintiff wanted 23 defendant DeHerrera to admit or deny that the Staff Services Manager Series on the California 24 Department of Human Resources website sets forth the scope of employment for the staff 25 services manager series as quoted by plaintiff, he was required to propound such request. In any 26 event, such job description speaks for itself. On the other hand, if plaintiff wanted defendant 27 DeHerrera to address how DeHerrera’s acts or omissions failed to meet such job description, 28 plaintiff could have asked such specific questions. No further response to RFA No. 3 is required. 1 RFA No. 11: The CCHCS HQ level response to an inmate health care grievance also represents a final administrative decision by the 2 Director/ Secretary of CDCR. 3 RESPONSE TO RFA NO. 11: Defendant objects to this request on the grounds it is vague and ambiguous as to the terms and phrases, 4 “The CCHCS HQ level response,” “also represents,” “administrative decision,” and “the Director/ Secretary of CDCR.” Defendant also 5 objects to this request on the grounds that it is vague as to time, not relevant to any claim or defense, and not likely to lead to the 6 discovery of admissible evidence. 7 Subject to and without waiving the above objections, Defendant responds as follows: Defendant admits that a determination from the 8 Inmate Correspondence and Appeals Branch (now referred to as the Health Care Correspondence and Appeals Branch) of CCHCS is the 9 final level of review and constitutes the decision of the secretary of the California Department of Corrections and Rehabilitation on an 10 appeal and is conducted by a designated representative under the supervision of the final level Appeals Chief or equivalent. 11 12 (ECF No. 97 at 12; 101-2 at 52.) 13 INFORMAL RESOLUTION RFA NO 11: Based upon objections, research and evidence contained in Defendant DeHerrera’s 14 production responses, Plaintiff challenged the dispute and offered to rewrite Admission No 11 as: 15 “The 12-31-15 Director's Level Decision for CDC-602HC Log# 16 DVIHC 15045270 signed by Defendant DeHerrera constitutes the final administrative decision on behalf of the Director / Secretary of 17 CDCR.” … see Exhibit E. 18 (ECF No. 97 at 13.) 19 Defendant’s objections as to plaintiff’s use of the terms “CCHCS HQ level response,” 20 “administrative decision,” and “the Director/Secretary of CDCR” are overruled because such 21 terms are frequently used in prison parlance and well-known to those engaged in prison litigation. 22 The relevance objection is also overruled because it is unclear whether or not any defendant will 23 file a motion for summary judgment on exhaustion grounds. On the other hand, defendant’s 24 objections as to time are well-taken in that prison regulations governing exhaustion have been 25 revised since the incidents alleged herein, as well as since this action was filed. 26 Nevertheless, plaintiff’s objection that defendant’s response improperly added information 27 not requested is sustained. The court strikes the following language: “and is conducted by a 28 designated representative under the supervision of the final level Appeals Chief or equivalent,” as 1 nonresponsive to the request. Defendant’s response to RFA No. 11 is amended to read as 2 follows: 3 Defendant admits that a determination from the Inmate Correspondence and Appeals Branch (now referred to as the Health 4 Care Correspondence and Appeals Branch) of CCHCS is the final level of review and constitutes the decision of the secretary of the 5 California Department of Corrections and Rehabilitation on an appeal. 6 7 Plaintiff’s offer to revise the request to apply to a particular grievance is different from his 8 initial, more generic request and therefore improperly sought to change the request rather than 9 confer on a proper response to RFA No. 11. In any event, the December 31, 2015 appeal 10 response is identified as a Director’s Level Decision, and specifically states: “Appeal is denied. 11 This decision exhausts your administrative remedies.” (ECF No. 97-7 at 1.) Thus, no further 12 response to RFA No. 11 is required. 13 RFA No. 12: The 10-25-15 inmate appeal authored by Plaintiff provided sufficient notice that he was seeking adequate medication 14 to address nueropathic[sic] type pain issues. 15 RESPONSE TO RFA NO. 12: Defendant objects to this request on the grounds it is vague and ambiguous as to the terms and phrases, 16 “10-25-15 inmate appeal authored by Plaintiff,” “sufficient notice,” “adequate medication,” “address,” and “nueropathic[sic] type pain 17 issues.” Defendant also objects to this request on the grounds that it is not relevant to any claim or defense and not likely to lead to the 18 discovery of admissible evidence. Defendant further objects to this request on the grounds that it is argumentative. Defendant further 19 objects to this request on the grounds that it calls for a speculative response. 20 Subject to and without waiving the above objections, Defendant 21 responds as follows: As phrased, Defendant is unable to admit or deny, and on that basis, denies the requested admission. 22 23 (ECF No. 97 at 14; 101-2 at 52.) 24 INFORMAL RESOLUTION RFA NO 12: Based upon objections, research and evidence contained in Defendant DeHerrera’s 25 production responses, on 12-19-22 Plaintiff challenged the response while offering to rewrite Admission No 12 as: 26 Plaintiff's 10-25-15 submission of the third level appeal for CDC- 27 602HC Log# DVIHC 15045270 states: 28 1 “The initial “Disability Access or Discrimination Issue” in [Plaintiff’s] 8-3-15 1824 provides” “You state that you have a walker 2 and have pain.” This is inaccurate. Other information in this appeal is inaccurate, but Motrin is helping with some pain. Requesting 3 accurate information and another medication which may assist or replace Motrin. No retaliation.” (AGO 004)” :…see Exhibit E. 4 5 (ECF No. 97 at 14.) 6 Plaintiff objects that defendant continues to provide unjustified and unexplained 7 objections to avoid responding and argues that Rule 36(a)(1) permits him to propound admissions 8 concerning “facts, the application of law to fact, or opinions about either.” (Id.) Defendant 9 responds that the words and phrases used by plaintiff are too vague and ambiguous and vague as 10 to time. (ECF No. 101 at 12.) 11 The undersigned overrules defendant’s relevance objection. However, RFA No. 12 was 12 vague in that it failed to provide the appeal number and thus it was unclear whether plaintiff was 13 inquiring about an initial appeal; as clarified, plaintiff was referring to his request for third level 14 review of appeal Log# DVIHC 15045270. (ECF No. 97-7 at 4.) Such text, taken outside the 15 context of the entire administrative appeal, does not reference neuropathic pain, and would 16 require defendant to speculate in response. Defendant’s objection is sustained, and no further 17 response is required. 18 RFA No. 13: That inmate appeal also provided sufficient notice to alert a subsequent reviewing authority that the first level reviewer for 19 the grievance was also the second level reviewing authority. 20 RESPONSE TO RFA NO. 13: Defendant objects to this request on the grounds it is vague and ambiguous as to the terms and phrases, 21 “That inmate appeal,” “sufficient notice,” “to alert,” “a subsequent reviewing authority,” and “the first level reviewer for the grievance 22 was also the second level reviewing authority.” Defendant also objects to this request on the grounds that it is vague as to time, not 23 relevant to any claim or defense, and not likely to lead to the discovery of admissible evidence. Defendant further objects to this 24 request on the grounds that it is argumentative. Defendant further objects to this request on the grounds that it calls for a speculative 25 response. 26 Subject to and without waiving the above objections, Defendant responds as follows: As phrased, Defendant is unable to admit or 27 deny, and on that basis, denies the requested admission. 28 (ECF No. 97 at 15; 101-2 at 52-53.) 1 Informal Resolution of Admission No. 13: Based upon objections, research and evidence contained in Defendant DeHerrera’s 2 production responses, on 12-19-22 Plaintiff challenged the response while offering to rewrite Admission No 13 as: 3 “The 9-4-15 First Level response and the 10-19-15 Second Level 4 response to CDC602HC Log# DVIHC 15045270 are both signed by Defendant R. Chapnick (AGO 007- 010).” … see Exhibit E. 5 6 (ECF No. 97 at 16.) 7 Defendant responds that the words and phrases used by plaintiff are too vague and 8 ambiguous and vague as to time. (ECF No. 101 at 12.) Defendant’s objections are sustained. 9 Plaintiff’s proposed revision is a different request from RFA 13. No further response is required. 10 RFA No. 15: In his reply, plaintiff addressed RFA No. 15. (ECF No. 102 at 14-15.) 11 However, in his motion, plaintiff voluntarily withdrew this request. (ECF No. 97 at 16-17.) 12 Because plaintiff withdrew this request from his motion, the court does not address RFA No. 15. 13 RFA No. 20: “On April 23, 1990, a group of plaintiffs filed a class action in the United States District Court for the Eastern District of 14 California, entitled Coleman v. Deukmejian, No. 2:90-cv-00520- LKK (Coleman).” 15 RESPONSE TO RFA NO 20: “Defendant objects to this request on 16 the grounds it is vague and ambiguous as to the terms and phrases, “a group of plaintiffs,” and “filed a class action.” Defendant also 17 objects to this request on the grounds that it is not relevant to any claim or defense and not likely to lead to the discovery of admissible 18 evidence. 19 Subject to and without waiving the above objections, Defendant responds as follows: Defendant lacks personal knowledge of the facts 20 underlying the above-referenced case and is unable to admit or deny, and on that basis, denies the requested admission. 21 22 (ECF No. 97 at 17; 101-2 at 56-57.) 23 Informal Resolution of RFA No. 20: Based upon objections, research and evidence contained in Defendant DeHerrera’s 24 production responses, on 12-19-22 Plaintiff challenged the response while offering to rewrite Admission No 20 as: “In Plata v. Newsom, 25 445 F.Supp.3d 557 at p. 560 (ND Cal April 17, 2020) the United States District Court for the Northern District of California stated: 26 “Plaintiffs filed this Plata case in 2001, alleging that Defendants were failing to provide constitutionally adequate medical care. 27 "[T]he State conceded that deficiencies in prison medical care violated prisoners' Eighth Amendment rights . . . . [and] stipulated to 28 a remedial injunction," Brown v. Plata, 563 U.S. 493, 507, 131 S. Ct. 1 1910, 179 L.Ed.2d 969 (2011), which this Court has been enforcing since that time ”(Exhibit D).” 2 3 (ECF No. 97 at 17-18.) 4 The undersigned sustains defendant’s objection that Coleman is not relevant to plaintiff’s 5 claims herein. The plaintiff class in Coleman consists of “all inmates with serious mental 6 disorders who are now, or will in the future, be confined within the California Department of 7 Corrections.” Coleman v. Newsom, No. 2:90-cv-0520 KJM DB (E.D. Cal.) (July 23, 1999 8 Order.) Here, plaintiff does not allege he suffers from a serious mental disorder or challenge 9 mental health care. No further response to RFA No. 20 is required. 10 Again, plaintiff’s attempt to rewrite RFA No. 20 is unavailing. In addition, the argument 11 in his reply (ECF No. 102) does not address RFA No. 20 as written or address his attempt to 12 informally resolve RFA No. 20. (ECF No. 102 at 15:4-7.) Therefore, the undersigned does not 13 address such argument. 14 D. Interrogatories 15 Under Rule 33(a), “[u]nless otherwise stipulated or ordered by the court, a party may 16 serve on any other party no more than 25 written interrogatories, including all discrete subparts. 17 Fed. R. Civ. P. 33(a)(1). An interrogatory may relate to any matter that may be inquired into 18 under Rule 26(b), and an interrogatory is not objectionable merely because it asks for an opinion 19 or contention that relates to fact or the application of law to fact. Fed. R. Civ. P. 33(a)(2) 20 (quotation marks omitted). “Each interrogatory must, to the extent it is not objected to, be 21 answered separately and fully in writing under oath.” Fed. R. Civ. P. 33(b)(3). The grounds for 22 objecting to an interrogatory must be stated with specificity. Fed. R. Civ. P. 33(b)(4); Davis v. 23 Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981). Any ground not stated in a timely objection is 24 waived unless the court, for good cause, excuses the failure. Fed. R. Civ. P. 33(c). The 25 responding party shall use common sense and reason. i.e., Collins v. Wal-Mart Stores, Inc., 2008 26 WL 1924935, *8 (D. Kan. Apr. 30, 2008). A party answering interrogatories cannot limit his 27 answers to matters within his own knowledge and ignore information immediately available to 28 him or under his control. Essex Builders Group, Inc. v. Amerisure Insurance Co., 230 F.R.D. 1 682, 685 (M.D. Fla. 2005). A responding party is not generally required to conduct extensive 2 research in order to answer an interrogatory, but a reasonable effort to respond must be made. 3 Gorrell v. Sneath, 292 F.R.D. 629, 629 (E.D. Cal. Apr. 5, 2013); L.H. v. Schwarzenegger, 2007 4 WL 2781132, *2 (E.D. Cal. Sept. 21, 2007). If a party cannot furnish details, the party should say 5 so under oath and explain why and set forth the efforts used to obtain the information; the party 6 cannot plead ignorance to information that is from sources within his control. Milner v. National 7 School of Health Technology, 73 F.R.D. 628, 632 (E.D. Pa. 1977). Of course, if the “answer 8 states that no record exists, the court cannot compel the impossible.” Id. at 633 (citing Moss v. 9 Lane Co., 50 F.R.D. 122, 128 (W.D. Va. 1970), aff’d in part, remanded in part, 471 F.2d 853 (4th 10 Cir. 1973)). A sworn answer indicating a lack of knowledge and no means of obtaining 11 knowledge is not objectionable. Milner, 73 F.R.D. at 633 (citing Brennan v. Glenn Falls Nat. 12 Bank & Trust Co., 19 Fed. R. Serv. 2d 721, 722-23 (N.D. N.Y. 1974)). The responding party has 13 a duty to supplement any responses if the information sought is later obtained or the response 14 provided needs correction. Fed. R. Civ. P. 26(e)(1)(A). 15 Pursuant to the discovery and scheduling order, responses to the interrogatories were due 16 forty-five days after the request was served. 17 Defendant Palagummi 18 Plaintiff seeks further responses to interrogatories Nos. 1, 3 & 5. (ECF No. 94.)6 19 Because defendant Palagummi’s responses to interrogatories Nos. 1 and 3 are similar, the 20 court addresses them together. 21 INTERROGATORY NO. 1: On 9-2-15 did you interview and or physically examine Plaintiff for health care appeal Log# DVIHC 22 15045270, an appeal of the 8-13-15 denial of his reasonable accommodation request in CDC-1824 Log#DVI-X-15-02117, and if 23 so: 24 a) Were you aware that Plaintiff had stated in his reasonable accommodation request that he was having problems getting around 25 because of problems with his rightside foot, ankle, knee and lower back, which at times was causing too much pain, and noted that his 26 knee still buckled after two arthroscopies in 2004 and 2005? 27 28 6 Plaintiff withdrew challenges to interrogatories nos. 2, 4 & 6 (ECF No. 94 at 8, 11, & 12.) 1 b) In your efforts to resolve Log# DVIHC 15045270 and treat your patient, did you follow relevant portions of the CCHCS Care 2 Guides, and in particular, Pain Management Part 1 - Assessment Care Guide, "Physical Exam" which requires 3 • thorough investigation of possible underlying causes of pain when 4 developing a differential diagnosis, and did you document your efforts?; 5 • perform an inspection of how the patient moves and any associated 6 pain or behaviors, and did you document your efforts?; 7 • check for joint pain and characterize symmetry, swelling, temperature, pulses, range of motion, limitations, instability, 8 strength, and evaluate reflexes, and did you document your efforts?; 9 • in the presence of back pain, did you characterize gait, posture, heel/toe walking, any signs that may correspond to radiating or 10 radicular pain, pulses, range of motion, limitations, instability or strength, and did you document your efforts?; and 11 • in the case of radiating pain did you note and document that the 12 radiating pain follows physiologic or known dermatomal patterns?; 13 c) In your efforts to resolve Log# DVIHC 15045270 did you review any of Plaintiffs medical records that arrived with him from jail on 14 7-8-15 or any other prior medical records either within the possession, custody or control of CDCR or any other recent health 15 care provider?; 16 d) During that examination/interview did you document that the causes of Plaintiffs pain that affected his lower right side back and 17 lower extremities appeared to be radiating and or shooting pain, as described by Plaintiff, which may have been neuropathic in nature?; 18 and 19 e) During that examination/interview did you inform Plaintiff that you would allow him to keep his walking cane but you would not 20 issue narcotic pain medication, and if so, did you consider any other treatment options suggested under the CCHCS Care Guides other 21 than narcotic pain medication? 22 RESPONSE TO INTERROGATORY NO. 1: Defendant objects to this request on the grounds that it is vague and ambiguous as to the 23 terms and phrases, “aware,” “reasonable accommodation request,” “problems getting around,” “problems with his right-side foot, ankle, 24 knee and lower back,” “at times,” “too much pain,” “noted,” “buckled,” “in your efforts,” “resolve Log# DVIHC 15045270,” 25 “follow relevant portions,” “CCHCS Care Guides,” “Pain Management Part 1 - Assessment Care Guide, ‘Physical Exam’,” 26 “document your efforts,” “Plaintiffs medical records that arrived with him from jail,” “any other prior medical records,” “any other 27 recent health care provider,” “During that examination/interview,” “document,” “the causes of Plaintiffs pain that affected his lower 28 right side back and lower extremities appeared to be radiating and or 1 shooting pain,” “as described by Plaintiff,” “neuropathic in nature,” “inform,” “allow,” “to keep,” “issue,” and “suggested under the 2 CCHCS Care Guides other than narcotic pain medication.” Defendant also objects to this request on the grounds that it is 3 compound and seeks multiple categories of responses in the same request. Defendant also objects on the grounds that the request and 4 its multiple subparts are drafted in a manner that renders them unintelligible. Defendant further objects on the grounds it is vague 5 as to time, overbroad, and not proportional to the needs of the case. 6 Subject to and without waiving the above objections, Defendant responds as follows: 7 Defendant has an insufficient recollection of events due to the 8 passage of time. In response to this interrogatory, Defendant refers Plaintiff to previously-produced appeals packet for Health Care 9 Appeal Log No. DVI HC 15045270, Bates-stamped AGO 001 - AGO 022, and Plaintiff’s medical record, Bates-stamped AGO 091. 10 11 (ECF No. 101-2 at 73-74.) 12 INTERROGATORY NO. 3: On 9-22-15 did Plaintiff attempt to describe his right side pain issues to you, and if so: 13 a) Did Plaintiff specifically request any narcotic pain medication, and 14 if so, which medication did he request?; 15 b) On that day why did you specifically state to Plaintiff, "I am not giving you narcotics?"; 16 c) On that day, why did you inform Plaintiff that you would not 17 change his pain medication, and describe the pain medication that was prescribed at that time and why you felt that it was adequate for 18 Plaintiffs medical needs?; 19 d) On that day, when Plaintiff asked about pain medication for his right leg why did you tell Plaintiff to "602" you [file a grievance] so 20 that you would not have to be Plaintiffs doctor?; 21 e) When Plaintiff attempted to request stronger pain medication for his right side pain, did you call a· custody officer (possibly Officer 22 G. Cherry) into the interview/examination room in order to prevent Plaintiff from attempting to request adequate pain medication?; and 23 f) On that day did you document the encounter with Plaintiff, and if 24 so please describe all document(s) and their location(s) in which you described the encounter? 25 RESPONSE TO INTERROGATORY NO. 3: Defendant objects to 26 this request on the grounds that it is vague and ambiguous as to the terms and phrases, “did Plaintiff attempt to describe his right side 27 pain issues to you,” “specifically request,” “on that day,” “inform,” “would not change his pain medication,” “describe, “at that time,” 28 “adequate,” “medical needs,” “attempted to request,” “call,” “the 1 interview/examination room,” “to prevent Plaintiff from attempting to request adequate pain medication,” “document the encounter,” and 2 “describe all document(s) and their location(s).” Defendant also objects to this request on the grounds that it is compound and seeks 3 multiple categories of responses in the same request. Defendant also objects on the grounds that the request and its multiple subparts are 4 drafted in a manner that renders them unintelligible. Defendant further objects on the grounds it is vague as to time, overbroad, and 5 not proportional to the needs of the case. Subject to and without waiving the above objections, Defendant responds as follows: 6 Defendant has an insufficient recollection of events due to the 7 passage of time. In response to this interrogatory, Defendant refers Plaintiff to previously-produced Plaintiff’s medical record, Bates- 8 stamped AGO 090. 9 (ECF No. 101-2 at 75-76.) 10 The Advisory Committee Notes to the 1993 Amendments to Rule 33 state, in part, that: 11 Each party is allowed to serve 25 interrogatories upon any other party, but must secure leave of court (or a stipulation from the 12 opposing party) to serve a larger number. Parties cannot evade this presumptive limitation through the device of joining as “subparts” 13 questions that seek information about discrete separate subjects. However, a question asking about communications of a particular 14 type should be treated as a single interrogatory even though it requests that the time, place, persons present, and contents be stated 15 separately for each such communication. 16 Id. 17 The reference to “discrete” subparts suggests that subparts are not always to be counted as 18 separate interrogatories. As some courts have explained, interrogatory subparts are to be counted 19 as one interrogatory “if they are logically or factually subsumed within and necessarily related to 20 the primary question.” Safeco of America v. Rawstrom, 181 F.R.D. 441, 445 (C.D. Cal. 1998) 21 (citing Kendall v. GES Exposition Services, Inc., 174 F.R.D. 684, 685 (D. Nev. 1997)). 22 The undersigned overrules defendant’s other objections and finds that all of plaintiff’s 23 questions in connection with interrogatory no. 1 are based on defendant’s September 2, 2015 24 interview or physical exam of plaintiff for plaintiff’s health care appeal Log # DVIHC 15045270. 25 It may be clear from the appeal response whether or not defendant Palagummi interviewed or 26 physically examined plaintiff on September 2, 2015, in connection with such appeal, thus 27 supporting defendant’s reference to certain documents. Fed. R. Civ. P. 33(d). But the subparts 28 relate to how and why defendant Palagummi responded to the appeal which are relevant to 1 plaintiff’s Eighth Amendment claims, all of which relate to defendant’s acts or omissions on 2 September 2, 2015. Essex, 230 F.R.D. at 685 (“The answering party cannot limit his answers to 3 matters within his own knowledge and ignore information immediately available to him or under 4 his control.”) For example, if defendant cannot recall, defendant should review relevant evidence 5 to see whether defendant’s recollection can be refreshed. Similarly, as to interrogatory no. 3, the 6 subparts all relate to what happened or did not happen on September 22, 2015, and defendant 7 should conduct a reasonable inquiry and, if his recollection and inquiry is insufficient to respond, 8 defendant must set forth what efforts defendant took to obtain responses and then respond 9 accordingly under oath. 10 Plaintiff’s motion to compel further responses to interrogatories nos. 1 and 3 is granted. 11 INTERROGATORY NO. 5: Did you follow all discretion conferred upon you as a medical professional, and as that discretion is 12 authorized and presumed within CCHCS guidelines in selecting the best course of treatment to alleviate Plaintiffs pain by 20 - 30% and 13 to increase his functionality in order to improve his quality of life. 14 RESPONSE TO INTERROGATORY NO. 5: Defendant objects to this request on the grounds that it is vague and ambiguous as to the 15 terms and phrases, “do you follow all discretion,” “conferred upon you as a medical professional,” “as that discretion is authorized and 16 presumed within CCHCS guidelines,” “selecting the best course of treatment to alleviate Plaintiffs pain by 20 - 30%,” and “to increase 17 his functionality in order to improve his quality of life.” Defendant also objects to this request on the grounds that it is compound, vague 18 as to time, harassing, overbroad, irrelevant to any claim or defense, and not proportional to the needs of the case. 19 Subject to and without waiving the above objections, Defendant 20 responds as follows: Any medical evaluation Defendant performed on Plaintiff and any treatment plan Defendant prescribed to Plaintiff 21 did not deviate from the required medical standard of care. 22 (ECF No. 101-2 at 77-78.) The undersigned sustains defendant’s objections that interrogatory no. 23 5 is too vague and ambiguous, particularly given plaintiff’s reliance on the term “discretion,” and 24 the interrogatory is compound. No further response to interrogatory no. 5 is required. 25 //// 26 //// 27 //// 28 //// 1 Defendant Chapnick 2 Plaintiff seeks further responses to interrogatories Nos. 1, 2, & 3. (ECF No. 95.)7 Just as 3 defendant Palagummi did, defendant Chapnick responded to interrogatories Nos. 1, 2, & 3 by 4 claiming defendant has an insufficient recollection of events due to the passage of time and is 5 therefore unable to respond to these interrogatories and referred plaintiff to certain documents. 6 As discussed above, such response is insufficient. Essex, 230 F.R.D. at 685. Therefore, to the 7 extent defendant’s objections are overruled in this order and further response is required, 8 defendant must identify efforts taken to obtain responses and, if unable to, set forth such efforts 9 and respond under oath accordingly. 10 INTERROGATORY NO. 1: During all periods relevant to the operative complaint, and within the scope of your employment as a 11 Chief Medical Executive (CME) for CCHCS at Deuel Vocational Institute (DVI) in Tracy, CA: 12 a) Did you have opportunity to be the reviewing authority for any 13 inmate health care appeals at DVI? If so, please describe (appx) how many times you have been the reviewing authority in health care 14 appeals; 15 b) As CME [are] [were] you aware of any established criteria for the reviewing authority to follow in its decision-making process in 16 determining the outcome of inmate health care appeals at DVI? If so, describe that criteria and how it may be applied in the appeals 17 process.; 18 c) As CME are you aware as to whether the reviewing authority for health care appeals has discretion or authority to grant relief which 19 may not have been requested by an inmate within a health care appeal? If so, please describe examples in how that authority or 20 discretion may be applied.; and 21 d) As CME are you aware as to whether the reviewing authority for an inmate health care appeal has discretion or authority to direct 22 rehearing of an appeal decision at the same or lower level? If so please give examples describing how that discretion or authority may 23 be applied in the health care appeal process. 24 RESPONSE TO INTERROGATORY NO. 1: Defendant objects to this request on the grounds that it is vague and ambiguous as to the 25 terms and phrases, “all periods relevant to the operative complaint,” “within the scope of your employment as a Chief Medical 26 Executive,” “Did you have opportunity to be the reviewing authority for any inmate health care appeals at DVI,” “describe (appx) how 27 28 7 Plaintiff withdrew challenges to interrogatories nos. 4, 5 & 6 (ECF No. 95 at 13-14.) 1 many times you have been the reviewing authority in health care appeals,” “[are] [were] you aware,” “of any established criteria,” “for 2 the reviewing authority to follow,” “decision-making process,” “determining the outcome of inmate health care appeals at DVI,” 3 “describe that criteria,” “how it may be applied in the appeals process,” “discretion or authority to grant relief which may not have 4 been requested by an inmate within a health care appeal,” “describe examples in how that authority or discretion may be applied,” 5 “discretion or authority to direct rehearing of an appeal decision at the same or lower level,” and “give examples describing how that 6 discretion or authority may be applied in the health care appeal process.” Defendant also objects to this request on the grounds that 7 it is compound and seeks multiple categories of responses in the same request. Defendant also objects on the grounds that the request and 8 its multiple subparts are drafted in a manner that renders them unintelligible. Defendant further objects on the grounds it is vague 9 as to time, overbroad, and not proportional to the needs of the case. 10 Subject to and without waiving the above objections, Defendant responds as follows: Defendant has an insufficient recollection of 11 events due to the passage of time and is therefore unable to respond to these interrogatories. 12 13 (ECF No. 101-2 at 64-65.) 14 Unlike plaintiff’s interrogatories to defendant Palagummi, the subparts of interrogatory 15 no. 1 to defendant Chapnick are not logically or factually subsumed within and necessarily related 16 to the primary question. See Safeco, 181 F.R.D. at 445. Thus, each subpart is viewed as a 17 separate interrogatory. However, it does not appear that plaintiff exceeded the 25 number limit 18 for interrogatories propounded to defendant Chapnick. 19 Defendant’s objection as to time is overruled because plaintiff’s pleading makes clear his 20 rights were violated in September and October of 2015, a discrete and identifiable time frame. 21 Defendant’s objection to the phrase “in the scope of your employment as a Chief Medical 22 Executive” (“CME”) is overruled because plaintiff alleges that Dr. Chapnick was CME at DVI 23 during the alleged incidents (ECF No. 28 at 2, 7), and Chapnick confirmed such position in his 24 answer (ECF No. 46 at 2). 25 Interrogatory no. 1(a) does not appear likely to lead to relevant discovery and could be 26 unduly burdensome, and disproportional to the needs of this case. See Roberts v. Clark County 27 Sch. Dist., 312 F.R.D. 594, 603 (D. Nev. 2016) (“[t]he 2015 amendments to Rule 26(b)(1) 28 //// 1 emphasize the need to impose ‘reasonable limits on discovery through increased reliance on the 2 common-sense concept of proportionality.’” No further response to 1(a) is required. 3 As to interrogatory nos. 1(b), (c) and (d), the undersigned does not find the questions 4 vague and ambiguous, and responses could lead to the discovery of admissible evidence. Thus, 5 defendant Chapnick is directed to provide plaintiff with further responses to interrogatory nos. 6 1(b), (c) and (d), for the time frame September and October of 2015, keeping the above cautions 7 in mind regarding insufficient recollection. 8 INTERROGATORY NO. 2: As the 9-8-15 (appx) first level decision-maker in 602HC Log# DVIHC 15045270, an appeal of the 9 denial of Plaintiff’s request for reasonable accommodation in CDC- 1824 Log# DVIX-15-02117: 10 a) Did your determination that sufficient relief had been granted 11 without changing Plaintiffs pain medication take into consideration Plaintiffs description of pain listed within his ADA request and 12 appeal, i.e., that he was having extreme pain in his lower right back, leg, knee, ankle and foot which was causing problems with his ability 13 to "get around" or access the program and services of a public entity, i.e., CDCR?; 14 b) Did you consider whether the symptoms described in the ADA 15 request and appeal tended to demonstrate that further diagnostic testing or evaluation may have been “medically indicated” in order 16 to properly address Plaintiffs pain issues?; 17 c) Did you determine that, based upon all available information and medical records, following CCHCS Care Guide: Pain Management 18 Part 2 - Therapy - Non-Opioid was not warranted in Plaintiffs case, and if so please explain what factors lead you to reach that 19 determination?; and 20 d) In your 9-8-15 (appx) response to the appeal, you stated "[D]r. Palagummi document that a stronger pain medication was not 21 medically indicated at this time; and you agreed with the treatment plan." Did you attempt to contact Plaintiff in order to determine if he 22 actually agreed with the plan of treatment at that time? 23 RESPONSE TO INTERROGATORY NO. 2: Defendant objects to this request on the grounds that it is vague and ambiguous as to the 24 terms and phrases, “your determination that sufficient relief had been granted without changing Plaintiffs pain medication take into 25 consideration Plaintiffs description of pain listed within his ADA request and appeal,” “extreme pain in his lower right back, leg, knee, 26 ankle and foot” “causing problems with his ability to ‘get around’ or access the program and services of a public entity,” “consider,” 27 “symptoms described in the ADA request and appeal,” “tended to demonstrate,” “further diagnostic testing or evaluation may have 28 been ‘medically indicated,’” “to properly address Plaintiff’s pain 1 issues,” “based upon all available information and medical records,” “following CCHCS Care Guide: Pain Management Part 2 - Therapy 2 - Non-Opioid was not warranted in Plaintiffs case,” “explain what factors lead you to reach that determination,” “attempt to contact 3 Plaintiff,” and “to determine if he actually agreed with the plan of treatment at that time.” Defendant also objects to this request on the 4 grounds that it is compound and seeks multiple categories of responses in the same request. Defendant also objects on the grounds 5 that the request and its multiple subparts are drafted in a manner that renders them unintelligible. Defendant further objects on the grounds 6 it is vague as to time, overbroad, and not proportional to the needs of the case. 7 Subject to and without waiving the above objections, Defendant 8 responds as follows: Defendant has an insufficient recollection of events due to the passage of time. In response to these interrogatories, 9 Defendant refers Plaintiff to previously-produced appeals packet for Health Care Appeal Log No. DVI HC 15045270, Bates-stamped 10 AGO 001 - AGO 022. 11 (ECF No. 101-2 at 65-66.) 12 Contrary to defendant’s objections, interrogatory no. 2 and its subparts seek information 13 concerning how defendant Chapnick reached his September 8, 2015 decision on plaintiff’s 14 appeal, thus constituting one interrogatory. Defendant Chapnick shall supplement his responses 15 as to interrogatory nos. 2(a) - (d). If defendant is unable to answer, defendant shall set forth what 16 efforts were taken to obtain answers and respond under oath. 17 INTERROGATORY NO. 3: Within the scope of your employment as CME and in signing the 10-19-15 second level decision for Log# 18 DVIHC 15045270: 19 a) Does it logically follow that Plaintiffs decision to file his second level appeal in this matter contradicted the fact that he did not agree 20 with Dr. Palagummi's plan of treatment as it pertained to pain medication?; 21 b) In the 10-19-15 partial granting of the appeal based upon Dr. 22 Newman's 10-16-15 issuance of 600mg of Ibuprofen pain medication, were you aware that the CCHCS Care Guides cautions 23 against prolonged use of Ibuprofen because of the increased risks and adverse affects associated with, inter alia, gastral intestinal bleeding, 24 edema, and hypertension?; 25 c) Were there any other treatment options available under the CCHCS Care Guides which the decision-maker at the second level 26 for the appeal could have directed or ordered, or were other options excluded based upon monetary considerations? Please explain how 27 you reached this determination and how CCHCS Care Guide: Pain Management Part 2 - Therapy - Non-Opioid, Decision Support could 28 have affected your decision?; 1 d) In your 10-19-15 decision, you stated that on 10-16-15 Dr. Newman had documented that Plaintiff had been seen walking with 2 a normal gait in the DVI Reception Center medical holding yard, but when Plaintiff was called into the medical clinic he began to walk 3 with a limp while carrying his cane. Please explain how this information was relevant during your decision-making process and 4 describe, in detail where that information [is][was] documented?; and 5 e) In your 10-19-15 decision you also stated that Dr. Newman had 6 further documented that Plaintiff became uncooperative until an officer had come into the examination/interview room, at which time 7 Plaintiff's demeanor improved. Why was this information relevant to your decision-making process, and can you describe, in detail where 8 that information [is][was] documented. 9 RESPONSE TO INTERROGATORY NO. 3: Defendant objects to this request on the grounds that it is vague and ambiguous as to the 10 terms and phrases, “Within the scope of your employment as CME,” “logically follow that Plaintiff’s decision to file his second level 11 appeal in this matter contradicted the fact that he did not agree with Dr. Palagummi’s plan of treatment as it pertained to pain 12 medication,” “In the 10- 19-15 partial granting of the appeal based upon Dr. Newman’s 10-16-15 issuance of 600mg of Ibuprofen pain 13 medication,” “aware,” “the CCHCS Care Guides,” “cautions against,” “prolonged use,” “increased risks and adverse affects,” 14 “any other treatment options available under the CCHCS Care Guides,” “the decision-maker at the second level for the appeal,” 15 “directed or ordered,” “other options excluded,” “monetary considerations,” “explain how you reached this determination,” 16 “how CCHCS Care Guide: Pain Management Part 2 - Therapy - Non- Opioid, Decision Support could have affected your decision,” 17 “explain how this information was relevant during your decision- making process,” and “describe, in detail where that information 18 [is][was] documented.” Defendant also objects to this request on the grounds that it is compound and seeks multiple categories of 19 responses in the same request. Defendant also objects on the grounds that the request and its multiple subparts are drafted in a manner that 20 renders them unintelligible. Defendant further objects on the grounds it is vague as to time, overbroad, argumentative, and not proportional 21 to the needs of the case. Defendant also objects on the grounds that the request calls for speculation in making a response. 22 Subject to and without waiving the above objections, Defendant 23 responds as follows: Defendant has an insufficient recollection of events due to the passage of time. In response to these interrogatories, 24 Defendant refers Plaintiff to previously-produced appeals packet for Health Care Appeal Log No. DVI HC 15045270, Bates-stamped 25 AGO 001 - AGO 022. 26 (ECF No. 101-2 at 66-68.) 27 The undersigned finds interrogatory no. 3(a) argumentative and interrogatory no. 3(c) 28 calls for speculation; no further response is required. 1 Interrogatory no. 3(b) calls for a straightforward yes or no answer. Interrogatory nos. 3(d) 2 and 3(e) call for specific information related to defendant Chapnick’s October 19, 2015 decision. 3 Defendant’s objections to 3(b), 3(d) and 3(e) are overruled. Defendant Chapnick shall file 4 supplemental responses, considering the responsibility to review other evidence before relying on 5 a failure to recall, as discussed above. 6 Discovery Deadline 7 Discovery closed on February 14, 2023. (ECF No. 92.) In light of the instant order, 8 discovery is reopened for the sole purpose of allowing defendants to submit supplemental 9 responses to plaintiff within 45 days from the date of this order, and providing plaintiff 45 days 10 thereafter to review such supplemental responses. Discovery closes on December 28, 2023. 11 No new discovery requests may be propounded by any party. 12 All pretrial motions, except motions to compel discovery, shall be filed on or before 13 February 29, 2024. All parties shall refrain from filing pretrial motions until after discovery 14 closes. In all other respects, the prior scheduling order remains in effect. (ECF No. 67.) 15 Accordingly, IT IS HEREBY ORDERED that: 16 1. Plaintiff’s motion to compel further responses to RFAs directed to defendant 17 Palagummi (ECF No. 93) is denied; 18 2. Plaintiff’s motion to compel further responses to interrogatories (ECF No. 94) is 19 granted in part; defendant Palagummi shall provide further responses to interrogatories nos. 1 and 20 3; in all other respects, plaintiff’s motion to compel is denied. 21 3. Plaintiff’s motion to compel further responses to interrogatories (ECF No. 95) is 22 granted in part; defendant Chapnick shall provide further responses to interrogatories nos. 1(b), 23 (c) and (d); 2(a), (b) (c) & (d); and 3(b), 3(d) and 3(e) 24 4. Plaintiff’s motion to compel further responses to RFAs directed to defendant Chapnick 25 (ECF No. 96) is granted in part, as set forth below, and denied in all other respects: 26 A. RFA Nos. 4, 5, 6, 7, 8, 10, 11, 12 and 13 are deemed admitted as of October 28, 2022. 27 B. Defendant Chapnick’s request that defendant be allowed to belatedly answer RFA 28 Nos. 4, 5, 6, 7, 8, 10, 11, 12 and 13 is denied without prejudice. 1 5. Plaintiff's motion to compel further responses to RFAs directed to defendant 2 || DeHerrera (ECF No. 97) is granted in part, as set forth below, and denied in all other respects: 3 Defendant’s response to RFA No. 11 is amended to read as follows: 4 Defendant admits that a determination from the Inmate Correspondence and Appeals Branch (now referred to as the Health 5 Care Correspondence and Appeals Branch) of CCHCS is the final level of review and constitutes the decision of the secretary of the 6 California Department of Corrections and Rehabilitation on an appeal. 7 8 6. Counsel for defendants shall provide plaintiff with the supplemental responses ordered 9 || above within 45 days from the date of this order. 10 7. Within fourteen days from the date of this order, counsel for defendants shall file a 11 | formal change of address. 12 8. The discovery deadline is extended to December 28, 2023, for the limited purpose set 13 || forth above; no new discovery requests may be propounded by any party. 14 9. All pretrial motions, except motions to compel discovery, shall be filed on or before 15 || February 29, 2024. All parties shall refrain from filing pretrial motions until after discovery 16 || closes. In all other respects, the prior scheduling order remains in effect. (ECF No. 67.) 17 || Dated: September 28, 2023 18 Ad 19 KENDALL J. Wha UNITED STATES MAGISTRATE JUDGE 20 21 /give0017.mtc 22 23 24 25 26 27 28 30