Gordon v. Inslee ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 AT TACOMA 10 RICKY D. GORDON, 11 CASE NO. 3:21-CV-5802-BJR-DWC Plaintiff, 12 ORDER DENYING PLAINTIFF’S v. DISCOVERY MOTIONS 13 JAY INSLEE, et al., 14 Defendant. 15 16 The District Court has referred this 42 U.S.C. § 1983 action to United States Magistrate 17 Judge David W. Christel. Before the Court are two letters from plaintiff, which the Court 18 construes as a motion requesting (1) an order requiring defendants to pay the costs of copying 19 documents requested by plaintiff in discovery and (2) the filing of plaintiff’s requests for 20 admissions and interrogatories to defendants. Dkts. 23, 23-1. Defendants have responded (Dkts. 21 24, 25) and plaintiff filed a reply. Dkt. 26. For the reasons discussed below, the Court denies 22 both motions. The Court also denies as moot plaintiff’s previously filed application to proceed in 23 forma pauperis (Dkt. 10-1). 24 1 A. Payment of Discovery Costs 2 Plaintiff contests defendants’ counsel’s requirement that she pay the copying costs for 3 documents she has requested from defendants in discovery, asserting she cannot afford to pay 4 them. Dkt. 23 at 1. Plaintiff, who paid the initial filing fee, requests that she be granted in forma 5 pauperis (IFP) status in order to require defendants to pay the copying costs. Id. 6 Defendants respond that the cost-shifting requested by plaintiff is inappropriate under 7 applicable discovery rules and governing law. Dkt. 24. Defendants submitted evidence showing 8 they have identified approximately 2,270 pages of documents responsive to plaintiff’s requests 9 and have offered to provide 100 pages for free (which may be printed double-sided and two per 10 page to include a total of 400 pages free of charge). Dkt. 25-1 at 3. Alternatively, defendants 11 have offered to place all of the documents on a CD to be sent to a third-party designee of 12 plaintiff. Id. 13 Federal Rule of Civil Procedure 34(a)(1) requires the party upon whom the discovery 14 request was served “to produce and permit the requesting party or its representative to inspect, 15 copy, test or sample . . .” the items deemed responsive to the request. Nothing in Rule 34 16 requires the producing party to bear the costs associated with the production. 17 Instead, the costs of discovery are to be borne by the party requesting discovery; it is not 18 defendants’ responsibility to provide plaintiff with the resources necessary for her to litigate her 19 case at defendant’s expense. See Lewis v. Casey, 518 U.S. 343, 384–85 (1996) (an inmate’s 20 constitutional right of access to the courts does not impose “an affirmative obligation on the 21 states to finance and support prisoner litigation”); Manley v. Zimmer, No. 3:11-CV-00636-RCJ- 22 WG, 2013 WL 5978021, *3-4 (D. Nev. Nov. 8, 2013) (finding the expenses for the plaintiff’s 23 discovery should be borne by the plaintiff, and are not the responsibility of the defendants). 24 1 A grant of IFP status does not change this requirement. The in forma pauperis statute, 28 2 U.S.C. § 1915, only waives the up-front payment of the filing fee for an indigent prisoner's civil 3 rights complaint. It does not require the Court to order financing of the entire action or waive 4 fees or expenses for discovery. Tedder v. Odel, 890 F.2d 210, 211–12 (9th Cir. 1989) (per 5 curiam); Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993). Here, plaintiff has paid the filing fee 6 and is not proceeding IFP. But even if she had been granted such status, she would remain 7 financially responsible for all costs of litigation other than the initial filing fee—including the 8 cost of obtaining discovery documents. 9 Defendants provided Plaintiff with options for the production of documents responsive to 10 her discovery requests. Dkt. 25-1 at 3. The documents could be (1) copied at a rate of 10 cents 11 per page in addition to postage costs, with 100 pages (which could be printed 4 documents per 12 page) free of charge; or (2) produced on a CD mailed to a third-party representative. Id. 13 Alternatively (or in addition) to these options, plaintiff may request defendants to make the 14 documents available for her to “inspect” pursuant to Fed. R. Civ. P. 34; plaintiff could take notes 15 during such an inspection, and could also select the 400 pages she wishes to have copied free of 16 charge. 17 The options suggested by defendants—and the additional option of inspection—clearly 18 comport with the requirements of Rule 34. Plaintiff is not entitled to shift the cost of document 19 production onto defendants and should instead choose from among these options to receive or 20 review the responsive documents. Plaintiff’s motion to require defendants to pay copying costs 21 (Dkt. 23) is therefore denied. 22 23 24 1 B. In Forma Pauperis Application 2 After paying the filing fee to initiate this case, plaintiff subsequently filed an IFP 3 application with her motion for appointment of counsel. Dkt. 10-1. Because the filing fee had 4 already been paid, the Court construed that submission as documentation of indigency for 5 purposes of the motion for counsel. Dkt. 13 at 3 n.1. It now appears plaintiff intended the 6 application to seek IFP status. Dkt. 23 at 2. 7 As discussed above, IFP status serves only to relieve a prisoner of the obligation to 8 prepay the filing fee before initiating a lawsuit. 28 U.S.C. § 1915(a)(1). Here, plaintiff has 9 already paid the filing fee, so any application to waive it is moot. Plaintiff’s IFP application is 10 therefore denied as moot. 11 C. Interrogatories and Requests for Admission 12 Plaintiff has also attempted to file with the Court requests for admission and 13 interrogatories directed to the defendants. Dkt. 23-1. The Clerk properly rejected those materials 14 for filing. See Notice to Filer dated March 14, 2022. Pursuant to Local Rules, W.D. Wash. 15 (“LCR”) 5(d), “discovery requests and responses must not be filed” unless they are submitted as 16 evidence or the Court orders otherwise. Instead, plaintiff must serve them on defendants by 17 mailing a copy to defendants’ counsel.1 18 19 20 21 22 1 It appears plaintiff served her requests by mail on May 4, 2022. Dkt. 23 at 4. Plaintiff’s reply contends that defendants have refused to answer them (Dkt. 26 at 2). However, the responses are not due until June 6, 2022. 23 See Fed. R. Civ. P. 33(b)(2) (responses to interrogatories due 30 days after service), 36(a)(3) (responses to requests for admission due 30 days after service), 6(d) (when a document is served by mail, three days are added to the response deadline). 24 1 D. Conclusion 2 Plaintiff’s request to shift the cost of document production to defendants (Dkt. 23) is 3 DENIED. Plaintiff’s request to proceed IFP (Dkt. 10-1) is DENIED as moot because plaintiff has 4 already paid the filing fee. Plaintiff’s request to file interrogatories and requests for admission 5 (Dkt. 23-1) is DENIED. 6 Dated this 23rd day of May, 2022. 7 A 8 David W. Christel 9 United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24