(PC) Howard v. Hedgpeth, et al., No. 1:2008cv00859 - Document 66 (E.D. Cal. 2010)

Court Description: ORDER DENYING 45 and 51 Plaintiff's Second and Third Motions to Compel Discovery and ORDER DENYING 40 and 44 Plaintiff's First and Second Motions for Sanctions, signed by Magistrate Judge Peter Lewis on 12/20/2010. (Jessen, A)
Download PDF
(PC) Howard v. Hedgpeth, et al. Doc. 66 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 9 KENNETH L. HOWARD, 10 11 12 13 14 15 v. A. HEDGPETH, et al., Case No. 08cv0859 RTB (PCL) ORDER DENYING Plaintiff, PLAINTIFF’S SECOND AND THIRD MOTIONS TO COMPEL DISCOVERY (Doc. Nos. 45; 51); and ORDER DENYING Defendants. PLAINTIFF’S FIRST AND SECOND MOTIONS FOR SANCTIONS (Doc. Nos. 40; 44) 16 I. 17 INTRODUCTION 18 Plaintiff Kenneth L. Howard (“Plaintiff”) is a state prisoner proceeding pro se and in 19 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding 20 on the first amended complaint filed February 5, 2009, against Defendants Hedgpeth, Rogers, 21 Hankins, Kirby, Sempel and Howard for violation of Plaintiff’s Eighth Amendment rights as a 22 result of an injury suffered by Plaintiff during his service as a kitchen staff member at Kern 23 Valley State Prison. (See Doc. No. 10.) Currently before the Court are Plaintiff’s motions to 24 compel discovery1/ and Plaintiff’s Motions for Sanctions. 25 26 1. Plaintiff filed his second Motion to Compel Discovery on August 6, 2010 pursuant to the 27 Court’s directive of July 15, 2010. Thereafter, a briefing schedule issued pertaining only to the Motion pending at the time. However, Plaintiff filed a third Motion to Compel on September 28, 28 2010 to which Defendants did not file a separate opposition. The Court takes both motions under submission and accepts Defendants’ Opposition to Plaintiff’s Second Motion to Compel, filed August 27, 2010, as an overall Opposition to Plaintiff’s motions. Plaintiff filed his Reply on September 13, 2010. Dockets.Justia.com 1 II. 2 HISTORY RELATING TO DISCOVERY 3 On March 8, 2010, Plaintiff served his first set of Requests for Productions of Documents 4 on Defendants. (Doc. No. 45 at 9-11; 13-15; 17-19; 21-23.) Defendants requested an extension 5 of time from Plaintiff on March 14, 2010 which Plaintiff granted, and formally from the Court 6 on April 19, 2010. Defendant was then granted until May 19, 2010 to respond to the discovery 7 requests. (Id. at 3.) On June 1, 2010, following the expiration of Defendants’ May 19, 2010 8 deadline to respond, Plaintiff filed his first Motion to Compel Discovery seeking responses to 9 various Interrogatories, Requests for Admissions and Requests for Production of Documents he 10 had previously propounded. (Doc. No. 37.) Defendants did not respond to this Motion despite 11 the Court’s briefing schedule, therefore, Plaintiff’s Motion was granted in its entirety on July 16, 12 2010. (Doc. No. 42.) Pursuant to the Court’s Order, Defendants were given until July 26, 2010 13 to respond to Plaintiff’s discovery requests. (Id.) Plaintiff received a response from Defendants 14 on July 30, 2010, however, Plaintiff believes the responses provided to be deficient and now 15 moves the Court for an Order compelling Defendants’ responses to the requested discovery. 16 (See Doc. Nos. 45; 51.) 17 III. 18 LEGAL STANDARD 19 Generally, “[p]arties may obtain discovery regarding any nonprivileged matter that is 20 relevant to any party’s claim or defense . . . . Relevant information need not be admissible at the 21 trial if the discovery appears reasonably calculated to lead to the discovery of admissible 22 evidence.” Fed. R. Civ. P. 26(b)(1) (WEST 2010). The responding party is obligated to respond to 23 the interrogatories to the fullest extent possible, Fed. R. Civ. P. 33(b)(3), and any objections 24 must be stated with specificity, Fed. R. Civ. P. 33(b)(4). The responding party shall use common 25 sense and reason. Collins v. Wal-Mart Stores, Inc., No. 06-2466-CM-DJW, 2008 U.S. Dist. 26 LEXIS 36343, 2008 WL 1924935, *8 (D. Kan. Apr. 30, 2008). A responding party is not 27 generally required to conduct extensive research in order to answer an interrogatory, but a 28 reasonable effort to respond must be made. L.H. v. Schwarzenegger, No. S-06-2042 LKK GGH, 08cv0859 RTB (PCL) 2 1 2007 U.S. Dist. LEXIS 73752, 2007 WL 2781132, *2 (E.D. Cal. Sep. 21, 2007). Further, the 2 responding party has a duty to supplement any responses if the information sought is later 3 obtained or the response provided needs correction. Fed. R. Civ. P. 26(e)(1)(A). 4 Moreover, a defendant is required to “furnish such information as is available" to him in 5 responding to Plaintiff’s interrogatories, and documents which are in his “possession, custody or 6 control” in responding to Plaintiff’s request for the production of documents. Fed. R. Civ. P. 7 33(a), 34(a). If Defendants object to any one of Plaintiff’s discovery requests, it is Plaintiff’s 8 burden in his motion to compel to demonstrate why the objection is not justified or why the 9 response is deficient. Plaintiff must inform the Court which discovery requests are the subject of 10 his motion to compel, and, for each disputed response, inform the Court why the information 11 sought is relevant and why Defendant’s objections are not justified or the response is not 12 complete. 13 IV. 14 DISCUSSION 15 A. Plaintiff’s Second Motion to Compel Discovery 16 In his first Motion, Plaintiff argues the discovery requests at issue are Requests for 17 Production of Documents Nos. 1, 2, 7, 8, and 9 propounded to Defendants Kirby, Semple, 18 Howard and Hankins. (Doc. No. 45 at 4.) Plaintiff’s Requests for Production of Documents 19 (RFP) were identical for all four Defendants. Likewise, Defendants’ responses were identical. 20 The Court analyzes each request in turn. 21 1. Request for Production of Documents No. 1 22 In his RFP No. 1, Plaintiff requested “post job description assignment sheet” for each 23 defendant from August 1, 2007 through October 31, 2007. (Doc. No. 45 at 10; 14; 18; 22) 24 Defendants responded to this request as follows: 25 26 Respond[ent] has undertaken a diligent search for the requested item. However, responding party has no responsive documents in his possession, custody or control. The California Department of Corrections and Rehabilitation maintains post orders[.] 27 (Doc. No. 48 at 2.) 28 Plaintiff requests the Court to compel Defendants to produce documents which they have 08cv0859 RTB (PCL) 3 1 stated they do not have in their possession or control. Moreover, Plaintiff has been made aware 2 that the California Department of Corrections and Rehabilitation may have the documents at 3 issue. The court is mindful that a defendant in Defendant Hedgpeth’s position may have access 4 to the documents, however, Defendant Hedgpeth was not propounded with this particular 5 discovery request. This request was made of Defendants Hankins, Howard, Semple and Kirby 6 whom occupied the positions of “freezer supervisor,” “ACFM supervisor,” “custody officer,” 7 and “sergeant in charge.” It does not appear that persons in these positions may have access to 8 internal documents. Defendants argue they have complied with Plaintiff’s request and this Court 9 agrees. Plaintiff should have sought the documents from the CDCR which is the proper 10 custodian for documents detailing the function and order of employees within the CDCR. The 11 request for production of “post job description assignment sheet[s]” for each defendant from 12 August 1, 2007 through October 31, 2007 is DENIED. 13 2. Request for Production of Documents No. 2 14 In his RFP No. 2, Plaintiff requested “any other specific documentation that governs 15 defendant[‘s] assigned job duties as Storage Room “Freezer” Supervisor2/ at (KVSP)” from 16 August 1, 2007 through October 31, 2007. (Doc. No. 45 at 10; 14; 18; 22) Defendants 17 responded to this request as follows: “Respond[ent] has undertaken a diligent search for the 18 requested item. However, responding party has no responsive documents in his possession, 19 custody or control.” 20 (Doc. No. 48 at 2.) 21 Plaintiff requests the Court to compel Defendants to produce documents which they have 22 stated they do not have in their possession or control. Here, Defendants have complied with 23 Plaintiff’s request because they cannot possibly produce any documents which they do not have. 24 25 2. The requests propounded to Defendant Hankins requested documents related to his position of “Storage Room Freezer Supervisor,” however, the other defendants had different 26 positions at the time. As to Defendant Howard, Plaintiff requested documents for the position of 27 “ACFM” supervisor; as to Defendant Semple, Plaintiff requested documents for the position of “custody officer”; and as to Defendant Kirby, Plaintiff requested documents for the position of 28 “sergeant in charge.” (See Doc. No. 45 at 10, 14, 18, 22.) 08cv0859 RTB (PCL) 4 1 Defendants contend they have complied with Plaintiff’s request and this Court agrees. Under 2 Rules 33(a) and 34(a), a defendant is only required to “furnish such information as is available” 3 to him when responding to Plaintiff’s discovery requests and produce any documents which are 4 in his “possession, custody or control.” FED. R. CIV. P. 33(a); 34(a). The request for production 5 of documents pertaining to “assigned job duties” of each of the named defendants from August 6 1, 2007 through October 31, 2007 is DENIED. 7 3. Request for Production of Documents No. 7 8 In his RFP No. 7, Plaintiff requested “Any department finding decisions, etc. establishing 9 defendant’s misconduct with[in] the last five years.” (Doc. No. 45 at 10; 14; 18; 22) Defendants 10 responded to this request as follows: “Respond[ent] has undertaken a diligent search for the 11 requested item. However, responding party was not cited for misconduct relative to this incident 12 and hence has no responsive documents in his possession, custody or control.” (Doc. No. 48 at 13 3.) 14 Plaintiff requests the Court to compel Defendants to produce documents which they have 15 stated do not exist. Defendants have fully complied with Plaintiff’s request by denying any 16 citations for misconduct. The request for production of documents pertaining to any citations of 17 misconduct for each of the named defendants for the last five years is DENIED. 18 4. Request for Production of Documents No. 8 19 In his RFP No. 8, Plaintiff requested “‘minutes’ records of proceedings of the meetings, 20 etc. held Tuesdays and Thursdays in (KVSP) central kitchen of staff and officers [pertaining] to 21 loose and defective metals” from October 29, 2006 to October 29, 2007. (Doc. No. 45 at 10; 14; 22 18; 22) Defendants responded to this request as follows: “Respond[ent] has undertaken a 23 diligent search for the requested item. However, responding party has no responsive documents 24 in his possession, custody or control. Responding party believes that the Central Kitchen 25 Secretary may have responsive documents. ” (Doc. No. 48 at 3.) 26 Plaintiff requests the Court to compel Defendants to produce documents which they have 27 stated are not within their custody or control. Under Rules 33(a) and 34(a), a defendant is only 28 required to “furnish such information as is available" to him when responding to Plaintiff’s 08cv0859 RTB (PCL) 5 1 discovery requests and produce any documents which are in his “possession, custody or control.” 2 FED. R. CIV. P. 33(a); 34(a). Defendants have fully complied with Plaintiff’s request by 3 advising that they do not have the responsive documents and admitting that the documents may 4 be obtained from an alternate source. Plaintiff has also not made a showing of how these 5 documents will be used at trial in his case. Although parties are entitled to discovery of evidence 6 reasonably calculated to lead to admissible evidence, the broad discovery provided by Rule 7 26(a) is not available in prisoner cases. FED. R. CIV. P. 26(a)(1)(B)(iv). Defendants bear no 8 responsibility to procure documents outside their possession, custody or control. The request for 9 production of “records of proceedings of the meetings” from October 29, 2006 to October 29, 10 2007 is DENIED. 11 5. Request for Production of Documents No. 9 12 In his RFP No. 9, Plaintiff requested “Any specific State or Federal court of California 13 finding, decree[,] orders, etc. establishing defendant violated State or Federal rights of any 14 inmates, staff members or visitors at (KVSP) Kern Valley State Prison within the last five 15 years.” (Doc. No. 45 at 10; 14; 18; 22) Defendants responded to this request as follows: 16 “Respond[ent] has undertaken a diligent search for the requested item. However, responding 17 party has no responsive documents in his possession, custody or control.” (Doc. No. 48 at 4.) 18 Plaintiff requests the Court to compel Defendants to produce documents which they have 19 stated they do not have. Defendants’ responses appear completed to the best of their ability and 20 Defendants have fully complied with Plaintiff’s request. Although any information contained in 21 a “finding, decree or order” of this nature would be relevant to Plaintiff’s case, even if the 22 documents were to exist, Plaintiff is requesting five years of court documents from all federal 23 and California state courts and the requests for production are overly broad and burdensome to 24 Defendants. Moreover, Plaintiff has access to a law library within the prison where he is 25 currently housed and has access to the documents requested. Therefore, the request for 26 production of documents pertaining to any “findings, decrees or orders” involving Defendants 27 for the last five years is DENIED. 28 08cv0859 RTB (PCL) 6 1 B. Plaintiff’s Third Motion to Compel Discovery 2 Plaintiff filed a third Motion to Compel Discovery on September 22, 2010. (Doc. No 51.) 3 Under Rule 37 of the Federal Rules of Civil Procedure, when making a motion to compel 4 discovery, “[t]he motion must include a certification that the movant has in good faith conferred 5 or attempted to confer with the person or party failing to make disclosure or discovery in an 6 effort to obtain it without court action.” FED. R. CIV. P. 37. The Court notes Plaintiff included 7 with his Motion a “meet and confer” letter to Defendants’ counsel dated September 22, 2010; the 8 same date upon which this Motion was filed with the Court. The Court also notes the date for 9 completion of discovery in this case was October 1, 2010. Thus, it appears to the Court that 10 Plaintiff was attempting to submit his Motion to Compel just before the close of discovery. 11 While the Court understands that Defendant Hedgpeth answered the Complaint on July 28, 2010 12 and was made available for discovery as of that date, Plaintiff should have requested an 13 extension of the discovery deadline to propound discovery on this Defendant if he found it 14 necessary. The Court received no such request. Therefore, the Court determines Plaintiff’s third 15 Motion to Compel Discovery is DENIED without prejudice. Plaintiff may bring this issue to the 16 attention of the Court following the outcome of Defendants’ Motion for Summary Judgment, 17 currently pending in this case. 18 C. Plaintiff’s Motions for Sanctions 19 Lastly, Plaintiff has filed two motions for sanctions in this case. (Doc Nos. 40; 44.) 20 Plaintiff argues Defendants’ failure to comply with this Court’s Orders of June 2, 2010 (Doc. 21 No. 38) and July 16, 2010 (Doc. No. 42) has no justification and monetary damages should be 22 assessed. (See Doc. No. 44.) 23 If a party fails to obey an order to provide or permit discovery, the court where the action 24 is pending may issue further just orders. FED. R. CIV. P. 37(b)(2)(A). The court must order the 25 disobedient party, the attorney advising that party, or both to pay the reasonable expenses, 26 including attorney's fees, caused by the failure, unless the failure was substantially justified or 27 other circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(b)(2)(C). No showing 28 of wilfulness is required. See Lew v. Kona Hosp., 754 F.2d 1420, 1427 (9th Cir. 1985). The 08cv0859 RTB (PCL) 7 1 court has considerable discretion in determining the amount and form of the award. See General 2 Signal Corp. v. Donallco, Inc., 787 F.2d 1376, 1380 (9th Cir. 1986). Fees to pro se litigants are 3 awardable under the courts inherent power. “Failure to do so would place a pro se litigant at the 4 mercy of an opponent who might engage in otherwise sanctionable conduct.” Pickholtz v. 5 Rainbow Technologies, Inc., 284 F.3d 1365, 1377 (Fed. Cir. 2002). 6 Here, the Court determines Defendants have complied with the Court’s Order of June 2, 7 2010 (Doc. No. 38) by filing a Statement of Non-Opposition to Plaintiff’s First Motion to 8 Compel on July 14, 2010. (Doc. No. 41.) Thereafter, Defendants also complied with this 9 Court’s Order Granting Plaintiff’s First Motion to Compel Discovery (Doc. No. 42) by providing 10 discovery responses to Plaintiff on July 30, 2010. (See Doc. No. 45, 3.) The fact that Plaintiff is 11 dissatisfied with Defendants’ responses is not enough to impose sanctions in this case. 12 Moreover, Plaintiff makes no argument that he was prejudiced or harmed in this litigation by 13 Defendants failure to provide responses other than “Defendant’s failure to comply has no 14 justification.” (Doc. No. 44 at 2.) As a last consideration, Plaintiff has also not presented to the 15 court any fees or costs incurred as a result of Defendants’ alleged failure to provide discovery 16 responses. 17 Therefore, Plaintiff’s first and second motions for sanctions are DENIED. 18 V. 19 CONCLUSION 20 Accordingly, Plaintiff’s First Motion to Compel is DENIED in its entirety; Plaintiff’s 21 Second Motion to Compel is DENIED; Plaintiff’s First Motion for Sanctions is DENIED; and 22 Plaintiff’s Second Motion for Sanctions is DENIED. 23 DATED: December 20, 2010 24 Peter C. Lewis U.S. Magistrate Judge United States District Court 25 26 27 cc: 28 The Honorable Roger T. Benitez All Parties and Counsel of Record 08cv0859 RTB (PCL) 8