(PC) Gilmore v. Augustus, et al., No. 1:2012cv00925 - Document 148 (E.D. Cal. 2015)
Court Description: ORDER DISCHARGING Order to Show Cause 134 ; ORDER DENYING 87 and 96 Motion to Compel ; ORDER GRANTING 92 Motion to Compel;ORDER DENYING 111 , 115 and 121 Motions ; ORDER DENYING 136 Motion to Compel; ORDER DENYING Plaintiff's Request for Extension of Time 146 ; ORDER EXTENDING Dispositive Motion Filing Deadline to December 1, 2015, signed by Magistrate Judge Stanley A. Boone on 09/3/2015. ( Dispositive Motions filed by 12/1/2015) (Martin-Gill, S)
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 Case No. 1:12-cv-00925 LJO SAB PC 8 9 ORDER DISCHARGING ORDER TO SHOW CAUSE C. DWAYNE GILMORE, Plaintiff, 10 (ECF NO. 134) ORDER GRANTING DEFENDANTS MOTION TO COMPEL 11 12 (ECF NO. 92) 13 ORDER DENYING PLAINTIFF S MOTIONS TO COMPEL 14 15 v. (ECF NOS. 96, 87) ORDER DENYING PLAINTIFF S MOTION TO COMPEL (ECF No. 136) 16 17 18 C. LOCKARD, et al., ORDER DENYING MOTIONS (ECF Nos. 111, 115, 121) Defendant. ORDER DENYING PLAINTIFF S REQUEST FOR EXTENSION OF TIME (ECF No. 146) 19 20 ORDER EXTENDING DISPOSITIVE MOTION FILING DEADLINE TO DECEMBER 1, 2015 21 22 23 24 25 Plaintiff is a state prisoner proceeding pro se and in forma pauperis pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(1)(B) and Local Rule 302. 26 27 28 1 1 I. 2 PROCEDURAL HISTORY 3 This action proceeds on the March 8, 2013, first amended complaint against Defendant 4 Correctional Officer (C/O) C. Lockard, C/O C. Lopez, J. Torres and C/O J. Hightower for use of 5 excessive force in violation of the Eighth Amendment. All other claims and Defendants have 6 been dismissed. On December 12, 2013, an order was entered directing service on Defendants 7 Lockard, Lopez, Torres and Hightower. (ECF No. 19.) On April 4, 2014, Defendants Hightower 8 and Lopez filed an answer. (ECF No. 30.) On the same date, Plaintiff filed a motion for 9 substitution for Defendant J. Torres. The USM 285 form for Defendant Torres was returned by 10 the U.S. Marshal with the indication that Defendant Torres was deceased. Plaintiff sought 11 substitution of Defendant Torres by an heir. (ECF No. 34.) Plaintiff filed a second motion for 12 substitution on May 16, 2014. (ECF No. 41.) On May 5, 2014, Plaintiff filed a motion for leave 13 to file a second amended complaint. (ECF No. 40.) On May 15, 2014, Defendant Lockard filed 14 an answer to the first amended complaint. (ECF No. 40.) On May 19, 2014, an order was 15 entered, denying the first motion for substitution as moot. (ECF No. 44.) On May 20, 2014, an 16 order was entered, denying Plaintiff s motion for leave to file a second amended complaint. 17 (ECF No. 47.) On May 21, 2014, an order was entered, denying Plaintiff s motion for 18 substitution and granting Plaintiff limited discovery to attempt to locate the administrator of 19 Defendant Torres s estate or executor of his will. (ECF No. 48.) On July 28, 2014, Plaintiff s 20 fifth motion for substitution was denied without prejudice, and Plaintiff was granted further leave 21 to conduct discovery for a limited purpose. (ECF No. 63.) On May 27, 2015, findings and 22 recommendations were entered, recommending that Plaintiff s motion for substitution be denied 23 and Plaintiff Torres be dismissed from this action. (ECF No. 123.) Plaintiff filed objections and 24 on July 8, 2015, the findings and recommendations were adopted by the District Judge, 25 dismissing Defendant Torres. 26 There is a history of discovery motions in this action. On May 16, 2014, Plaintiff filed a 27 motion for leave to propound additional interrogatories (ECF No. 42.) On June 17, 2014, the 28 request was granted. (ECF No 54.) On July 2, 2014, Plaintiff filed another request for leave to 2 1 propound additional interrogatories. (ECF No. 58.) On July 17, 2014, Plaintiff filed a motion to 2 compel discovery and “issuance of further just orders.” On August 27, 2014, an order was 3 entered, denying Plaintiff s request for leave to propound additional interrogatories. (ECF No. 4 72.) On September 2, 2014, an order was entered, denying Plaintiff s motion to compel, and 5 granting Plaintiff leave to re-serve Interrogatory No. 1 of Plaintiff s Interrogatories, Set Two, 6 upon Defendants for further response. (ECF No. 74.) On September 18, 2014, Plaintiff filed a 7 third motion for leave to propound additional interrogatories. (ECF No. 78.) Defendants filed an 8 opposition and on October 16, 2014, Plaintiff filed a withdrawal of his request. (ECF No. 80.) 9 On November 17, 2014, Plaintiff filed a motion to compel and for “issuance of further just 10 orders.” (ECF No. 87.) On December 8, 2014, Defendants filed a motion to compel responses 11 to discovery and a request for extension of time to conduct discovery. (ECF No. 92.) On 12 December 15, 2014, Plaintiff filed a motion for an order compelling disclosure and for sanctions. 13 (ECF No. 96.) On July 29, 2015, Plaintiff filed a motion for an order compelling discovery. 14 (ECF No. 136.) On July 20, 2014, an order to show cause was entered, directing Defendant 15 Lockard to show cause why default should not be entered against him. On August 18, 2015, 16 Defendant Lockard filed a response to the order to show cause. 17 II. 18 ALLEGATIONS 19 Plaintiff, currently an inmate in the custody of the CDCR at Pelican Bay State Prison, 20 alleges the following conduct occurred on July 8, 2010, while he was incarcerated at Kern Valley 21 State Prison. On that date, Plaintiff had just finished his inmate porter duties when he heard a 22 commotion behind him and noticed an incident occurring between two handcuffed inmates and 23 an officer. An alarm sounded, and Plaintiff got down on the ground. C/O Lockard aimed his 24 launcher gun at Plaintiff s right thigh and shot him with a sponge round. Plaintiff was struck in 25 the front inner right lower thigh area, ripping a large hole in his leg. Plaintiff fell backwards onto 26 the floor, actively bleeding. C/O Lockard called down to C/O Lopez, “Check Gilmore. I shot 27 him. He was trying to get involved.” (Am. Compl. ¶21.) Plaintiff was lying defenseless on the 28 floor, in immense pain, attempting to put pressure on the wound. C/O Lopez walked over to 3 1 Plaintiff and stood over him, stating, “You want to get involved, motherf***er? You re involved 2 now.” (Am. Compl ¶ 23.) C/O Lopez then sprayed Plaintiff with pepper spray without 3 justification, in his face and up and down his backside. C/O Hightower approached Plaintiff and 4 also began spraying him with pepper spray. Defendants Lopez and Hightower both emptied 5 their pepper spray canisters on Plaintiff. 6 C/O Torres then handcuffed Plaintiff behind his back and aggressively yanked Plaintiff 7 up from the floor. Plaintiff lost consciousness from pain but then awoke and began to yell that 8 he was injured, bleeding, and needing medical attention. Plaintiff began to feel severe burning 9 from the pepper spray. C/O Torres said, “You re not getting s**t,” forced Plaintiff to walk while 10 in pain, and then shoved Plaintiff s face into the concrete wall, causing Plaintiff s glasses to chip 11 and scratch Plaintiff s face, and cutting Plaintiff s lower lip. (Am. Compl. ¶¶ 34-36.) 12 Sergeant Diaz instructed C/O Torres to escort Plaintiff to the Program Office, and 13 Plaintiff was forced to walk, in obvious pain, to the Program Office patio area. C/O Torres 14 intentionally led Plaintiff into the metal door frame, causing Plaintiff to hit his mouth, 15 aggravating his cut and swollen lip. C/O Torres told Plaintiff, “You gotta watch where you re 16 going, Gilmore,” and intentionally led him into another metal door frame, hitting his face into the 17 door frame. C/O Torres said, “Gilmore, why do you keep doing that?” I m going to have to 18 write you up for self-mutilation,” and then snickered. (Am. Compl. ¶ 47.) 19 Plaintiff s right knee began to give out and he cried out to C/O Torres, “I can t walk no 20 more, my knee is broken,” and began to collapse. (Am. Compl. ¶¶ 48, 49.) C/O Torres yanked 21 Plaintiff upright and threatened to harm him, stating, “You try to go down on me and I m going 22 to slam your [expletive] on the ground. Now walk!” (Am. Compl. ¶¶ 50, 51.) Fearful, Plaintiff 23 continued to limp while in immense pain. C/O Torres intentionally led Plaintiff into the 24 pedestrian gate steel door, striking Plaintiff s right kneecap area, causing Plaintiff to scream out 25 in pain and almost lose consciousness. C/O Torres led Plaintiff past Medical Services to the 26 front of the Program Office, then forced him down onto the hot asphalt, stating, “Sit there!” (Am. 27 Compl. ¶ 56.) Plaintiff screamed in pain from his knee injury and the burning of the pepper 28 spray, for approximately 27 minutes. (Am. Compl. ¶¶ 59-61.) 4 1 Plaintiff was led to the front of Medical Services and forced down onto the hot asphalt. 2 Plaintiff continued to beg, cry, and plea to be decontaminated from the pepper spray, and for 3 medical attention. C/O Torres said, “After we take pictures.” (Am. Compl. ¶ 67.) Water was 4 poured over Plaintiff s gunshot wound, clearing away the evidence of excessive bleeding. 5 Plaintiff was forced into a chair in Medical Services, where photographs were taken of Plaintiff s 6 wound. While the photos were being taken, Defendant John Doe pulled open Plaintiff s wound, 7 intentionally causing Plaintiff to lose consciousness. Plaintiff regained consciousness and was 8 led outside of Medical Services by C/O Torres, who told Plaintiff, “Go down on your knees if 9 you want to be decontaminated.” (Am. Compl. ¶ 75.) Plaintiff went down on his left knee, 10 leaving his right leg stretched out. (Am. Compl;. ¶ 77.) Plaintiff bent his right leg and placed his 11 knee onto the hot asphalt, causing excruciating pain. C/O Torres then began to decontaminate 12 Plaintiff by spraying him with water. Every minute or so, C/O Torres would stop spraying 13 Plaintiff and say, “Tell me you want more!” and snicker. (Am. Compl. ¶ 80.) Sergeant Diaz 14 asked C/O Torres, “You re just now decontaminating him?” (Am. Compl. ¶ 81.) C/O Torres 15 decontaminated Plaintiff for about five minutes and then placed him in a holding cell. Still 16 burning and blind from the pepper spray, Plaintiff began to self-decontaminate without 17 instructions. The blood vessels in Plaintiff s eyes had burst. At Delano Regional Medical 18 Center, Plaintiff s wound was x-rayed for broken bones, and the wound was stapled shut. 19 Plaintiff was housed in administrative segregation at Kern Valley on the charge of assault on a 20 peace officer. (Am. Compl. ¶ 82.) III. 21 DISCOVERY MOTIONS 22 Plaintiff’s Motion To Compel (ECF No. 87) 23 1. 24 Plaintiff seeks to compel Defendants Lopez and Hightower to respond to requests for the 25 production of documents and respond to interrogatories. Specifically, Request for Production of 26 Documents, Request Nos. 1(a) and (b), Nos. 3(a),(b), (c), (z) and No. 4. Plaintiff contends that 27 Defendant s responses to these constitute incomplete disclosure. Plaintiff argues that 28 Defendant s response to Request No. 8 is false and the response to Request No. 12 is evasive. 5 1 Plaintiff also seeks to compel a response to his First Request for Interrogatories to Defendant C. 2 Lopez, Interrogatories 1, 2, 3, 10 , 30 and 17. Plaintiff contends that the response to No. 17 is 3 incomplete and the responses to the rest are evasive. 4 Plaintiff s Request for Production of Documents No. 1 (a) and (b) asks Defendants 5 Hightower and Lopez to produce photocopies of one spent direct impact sponge with discharged 6 sponge round two inches symmetrically in front of the shell casing, with measurements of the 7 unspent round and shall casing or allow inspection of (1) spent direct impact sponge round and 8 shell casing and to photograph the spent round and shell casing, including measurements of the 9 spent round and shell casing. Despite asserting objections that the request was vague, 10 ambiguous, overly broad, seeks, irrelevant information, impermissibly includes an interrogatory, 11 and that allowing inspection of the direct impact sponge is unauthorized and would jeopardize 12 institutional security under provisions of the California Code of Regulations, Defendants 13 produced three photographs of an unspent direct impact round. Plaintiff moves to compel a 14 further document production from Defendants because Defendants failed to produce a 15 discharged sponge round with the discharged sponge round two inches in front of the shell 16 casing and failed to provide the requested measurements. Defendants assert that they do not 17 have any additional responsive documents in their possession, custody or control. Defendants 18 assert they do not have any photographs of a discharged sponge round or any photographs 19 depicting measurements of a sponge round, discharged or unspent, in their possession, custody or 20 control. To Defendants knowledge, no such photographs exist. Because Defendants do not 21 have any responsive documents in their possession, the motion is denied as to Request Nos. 22 1(a)and (b). 23 Plaintiff s Request No. 3(a)(b)(c) and (z) asked Defendants Hightower and Lopez to 24 produce all policies, manuals, videos, tape-recordings, and test manuals concerning the use of 25 MK9 Oleoresin Capsicum (OC) pepper spray on people, the effect of being drenched with MK9 26 OC pepper spray and the decontamination process following a person being drenched with MK9 27 OC pepper spray or to allow inspection of canister of MK9 OC pepper spray and photocopies 28 depicting a canister of MK9 OC pepper spray, including measurements of canister and volume. 6 1 In response, Defendants asserted several objections, including the disclosure of information 2 which could endanger institutional safety and security under section 3450(d) of Title 15 of the 3 California Code of Regulations, and inspection is unauthorized and would jeopardize 4 institutional security under sections 3275 and 3276 of Title 15 of the California Code of 5 Regulations. Despite their objections, Defendants produced three photographs of a MK9 OC 6 pepper spray canister and the CDCR policies governing the use of pepper spray as set forth in 7 Title 15 of the California Code of Regulations. Defendants identified a privileged document 8 concerning the use of pepper spray in CDCR: “California Department of Corrections and 9 Rehabilitation Basic Correctional Officer Academy, Impact Munitions and Assuming an Armed 10 Post, Participant Workbook” dated December 2010. 11 Plaintiff seeks an order compelling further production because Defendants did not 12 provide any documents specifically mentioning the use of MK9 OC pepper spray, the effect of 13 MK9 OC pepper spray on people, the decontamination process, or the requested MK9 OC 14 pepper spray canister measurements. Plaintiff does not challenge Defendants asserted privilege 15 with respect to the Correctional Officer Academy Workbook. Defendants have produced all 16 non-privileged documents in their possession, custody or control that pertain to the use of pepper 17 spray in CDCR. Defendants argue that they do not have any additional documents in their 18 possession, custody or control that concern the use of pepper spray and therefore cannot produce 19 any additional documents. 20 In his opposition, Plaintiff argues that the information is relevant. Regarding the unspent 21 rounds, Plaintiff argues that the measurement of the spent and unspent direct rounds will “prove 22 in which direction plaintiff was facing during the incident.” (Opp n at 4:4-6.) Plaintiff does not 23 address Defendant argument regarding privilege. Regarding the pepper spray, Plaintiff argues 24 that Defendants response is non-responsive because they did not include the requested 25 measurements and volume (Opp n at 5:15.) Plaintiff also makes a relevance argument, arguing 26 that the measurements will show the amount of pepper spray that was covering Plaintiff during 27 the incident. Plaintiff does not address any of the other of Defendants objections. Because 28 Defendants have provided all the responsive, non-privileged documents in their possession, 7 1 custody or control, Plaintiff s motion should be denied as to Request Nos. 3(a),(b),(c) and (z). 2 Plaintiff s Request No. 4 seeks the production of all policies, manuals, videos, tape- 3 recordings, and manuals concerning the proper use of a Monadknock expandable baton and the 4 effect of being struck with an expandable baton or inspection of a Monadknock expandable 5 baton and photographs depicting an expandable baton, including measurements of an baton 6 expanded and retracted. Defendants asserted the same objections as with the pepper spray, 7 including the safety and security objections under sections 3275 and 3276 of Title 15 of the 8 California Code of Regulations. Defendants responded that they would not produce an 9 expandable baton for inspection due to institutional security concerns but produced five 10 photographs of a Monadnock expandable baton. Defendants have also identified a privileged 11 document which concerns the use of expandable batons in CDCR: “California Department of 12 Corrections and Rehabilitation Tactical Unit, Expandable Baton Instructor Participant 13 Workbook,” Revised April 2011. 14 As with the pepper spray, Plaintiff makes a relevance argument. Plaintiff contends that 15 “the measurements of the MEB expanded and detracted [sic] will prove that defendant C. Lopez 16 did not swing it at Plaintiff nor re-holstered it during the incident.” Plaintiff does not address 17 Defendants objection regarding the privileged document. Defendants assert that they have 18 provided all the responsive, non-privileged documents in their possession. Plaintiff s motion 19 should therefore be denied as to Request No. 4. 20 Plaintiff s Request No. 8 seeks an inspection of the use of force video “requested in 21 Plaintiff s CDCR 602, Appeal Log No. KVSP-10-01442, as required pursuant to CCR, Title 15, 22 3268.4(d)(1) and (2), and as referenced in the Second Level Response (See Attachment 1), or in 23 the alternative admission that no use of force video interview occurred and the rules and 24 regulations of the CCR, Title 15 was not abided by.” (Opp n 7:2-12.) Defendants objected to 25 this request on the ground that it impermissibly includes an interrogatory but that Defendants 26 will arrange for Plaintiff to view the use of force video-taped interview. Plaintiff argues that 27 Defendants response is “false because Plaintiff does not remember any use of force video 28 interview therefore defendants cannot arrange for plaintiff to view such taped interview.” (Opp n 8 1 7;23-24.) Plaintiff contends that if the interview does not exist, then Defendants should be 2 compelled to concede that they did not follow regulations. Defendants concede that a use-of3 force interview does not exist with regard to Plaintiff, but a use-of-force interview does exist for 4 the underlying incident. The interview did not include Plaintiff. This is the interview that 5 Defendants have offered to make available for Plaintiff s viewing. The video that Plaintiff seeks 6 does not exist. Plaintiff s motion should therefore be denied as to Request No. 8. 7 Plaintiff s Request No. 12 seeks a copy of the housing roster for all inmates who were 8 housed in his housing unit section at the time of the incident. Defendants objected to this request 9 on the grounds that it is overly broad and jeopardizes institutional safety and security. 10 Defendants refused to produce the roster on the grounds of institutional safety and security. 11 Plaintiff argues that Defendants response is “conclusionary and evasive.” (Opp n 8:13.) 12 Plaintiff notes that Defendants have not explained how the document threatens safety and 13 security, or what safety and security is threatened. Defendants support their opposition with the 14 declaration of J. Hancock, the Litigation Coordinator at Kern Valley State Prison. Producing the 15 housing roster jeopardizes institutional safety and security because this information can – and 16 historically has been – used for purposes other than supporting inmates lawsuits. In particular, 17 CDCR does not disclose documents or information that indicates the names, CDC numbers, and 18 locations of inmates to other inmates because inmates use this information for nefarious 19 purposes. For example, an inmate may learn of the location of rival gang members and use that 20 information to plan violence. Similarly, such information can be used to collect debts, plan riots, 21 carry out gang activities, and conduct other illegal activities. (Hancock Decl. ¶ 3.) Defendants 22 further argue that such disclosure could implicate privacy concerns of the inmate if they are 23 housed, for example, in a building containing mostly mental health inmates. Some facilities, and 24 housing units within facilities, are set up to accommodate certain groups of inmates who are at 25 higher risk of assault by other inmates. 26 Defendants also note that Plaintiff has other means to identify witnesses. Plaintiff knows 27 which inmates were housed in the section with him and are potential witnesses because he lived 28 and interacted with them on a daily basis. Additionally, Plaintiff has been provided with the 9 1 CDC 837 Crime Incident Report, which also identifies the main individuals, including inmates, 2 who were involved in the subject incident. Defendants persuasively argue that Plaintiff does not 3 need the housing roster to support his claims. Plaintiff s relevance argument does not overcome 4 the need for institutional safety and security. The motion should be denied as to Plaintiff s 5 Request No. 12. 6 Plaintiff seeks to compel Defendant Lopez to provide further responses to Interrogatory 7 Nos. 1-3, 10, 17 and 30. Lopez argues that he cannot be compelled to provide information he 8 does not remember. Plaintiff s Interrogatories and Defendant s Lopez s responses follow. 9 10 11 12 13 14 Interrogatory No. 1: In the afternoon of July 8, 2010, at approximately 12:27 p.m., just prior to you responding to the audible alarm of incident log no. KVSP-FA8-10-07-0403, what duty was you performing or in the process of performing? Please provide the full name and job position, and title of all persons who accompanied you and was assigned to you in performing that duty. Response: I was a search and escort officer on July 8, 2010. Due to the passage of time, I cannot recall at this time what duty I was performing when I heard the alarm. Nor do I remember who was working with me at the time 15 16 Plaintiff argues that Defendant s response is evasive because “if defendant can recall that 17 defendant was a search and escort (S&E) officer on July 8, 2010, then common sense will say 18 that defendant knows what duty defendant was performing, as an S&E officer when the audible 19 alarm sounded and who defendant was working with at the time.” (Opp n 9:25-10:2). The 20 Court finds Defendant Lopez s answer responsive. Lopez has provided all the information that 21 he can recall. Plaintiff s motion should therefore be denied as to Interrogatory No. 1 22 23 24 25 26 27 28 Interrogatory No. 2: When the audible alarm sounded, approx.. how many yards away was you, from the front door of FAB8, CSection? Please provide your age and weight, including your correctional officer communication and correction gear at the time of the audible alarm. Response: I was located somewhere on the upper yard, but due to the passage of time I cannot recall exactly where I was when I heard the alarm. I do not know how far away I was from the FAB8 C-section door because I cannot recall exactly where I was when I heard the alarm. I weight approximately 230 pounds with my uniform and gear. 10 1 Plaintiff argues that Lopez s answer is evasive because if Lopez can remember how 2 much he weighed in 2010 then he can remember exactly how far he was from the front door 3 when he heard the alarm. First, the Court notes that the interrogatory requests Lopez to provide 4 his current weight, not his weight in 2010. There is no further basis for compelling Lopez to 5 provide a further response. Plaintiff also argues that Defendant should be compelled to provide 6 his age. Regarding his age, Lopez persuasively argues that given his profession, his precise age is 7 private information that could be misused for illicit purposes and has not probative value to the 8 claims and defenses in this action. Plaintiff s motion should therefore be denied as to 9 Interrogatory No. 2. 10 Interrogatory No. 3 asks Lopez to answer two discrete questions: “Approximately how 11 many seconds did it take you to arrive at the front door of FAB8, C-Section after the audible 12 alarm sounded? Please provide the full name of the persons who you remember arriving into 13 FAB8, C-Section immediately before and after you.” Lopez answered that he could not recall 14 how long it took him to get to the front door of FAB8, C-Section once he heard the alarm. He 15 did recall that he was one of the first to arrive and that when he arrived Officer Herrera, Torres 16 and King were already there. He could not recall who, if anyone, arrived after him. 17 Plaintiff argues that Defendant s response is evasive because in response to another 18 interrogatory he indicated that C/O Hightower assisted him with intercepting Plaintiff s approach 19 towards Herrera, Torres and King by spraying Plaintiff with pepper spray. Plaintiff argues that 20 this information is relevant to show that when Defendant arrived, Plaintiff was already 21 “crumpled on the floor and actively bleeding.” (Opp n 14:28.) Plaintiff does not explain why 22 Lopez s mention of Hightower s assistance is indicative of an evasive or incomplete response. 23 Lopez has provided all the information that he has the ability to provide. Lopez provided all the 24 responsive information that he could recall. Plaintiff s motion should therefore be denied as to 25 Interrogatory No. 3. 26 Interrogatory No. 10 asks Lopez to “please explain why you neglected to report the oral 27 statement you provided to Sgt. J. Diaz, to incident commander, correctional (Lt.) D. Augustus?” 28 Lopez objected to the interrogatory on the ground that it lacks foundation, is vague, ambiguous, 11 1 overly broad and requires Lopez to speculate as to which oral statement Plaintiff is referring. 2 Plaintiff argues that the information is relevant to show that Defendant arrived after Plaintiff was 3 shot and lying on the ground. Plaintiff refers Defendant to other documents in order for him to 4 make the question complete. It is Plaintiff s obligation to provide a specific question that 5 includes enough information that Lopez could reasonably know what information Plaintiff was 6 seeking. Plaintiff failed to do so. Defendant s objection sustained. Plaintiff s motion should 7 therefore be denied as to Interrogatory No. 10. 8 Plaintiff s Interrogatory No. 17 asks Lopez to mark a provided diagram indicating “the 9 locations of Plaintiff and Officer Lockard when Officer Lockard allegedly utilized a 40MM 10 direct impact striking Plaintiff.” Lopez responded that he placed an X in the place where 11 Plaintiff was located when Lockard fired the 40MM direct impact and struck Plaintiff. Lopez 12 could not mark the location of C/O Lockard because he did not know where he was when he 13 fired the 40MM direct impact and struck Plaintiff. Plaintiff argues that Lopez s response is 14 incomplete because he marked the spot where C/O Lockard was located and not Plaintiff. Lopez 15 responded to Interrogatory No. 17 under penalty of perjury. The Court finds the answer to be 16 responsive. Plaintiff s motion should therefore be denied as to Interrogatory No. 17. 17 Plaintiff s Interrogatory No. 30 asked Lopez how long “he and Officer Hightower 18 allegedly spray [sic] Plaintiff s facial area with MK-9 OC pepper spray before Plaintiff 19 complied with orders to get down?” Defendant Lopez responded, “I cannot recall how long I 20 sprayed Inmate Gilmore with OC pepper spray.” Plaintiff argues that Lopez s response is 21 evasive because “defendant s training instructs the proper use of MK9 pepper spray (i.e. firing 22 and bursts).” (Opp n at 19:2-3.) Lopez argues that Plaintiff cannot compel him to recall 23 information that he does not remember. The Court finds Lopez s answer to be responsive. 24 Plaintiff s motion should therefore be denied as to Interrogatory No. 30. Defendants’ Motion To Compel (ECF No. 92) 25 2. 26 Defendants Lockard, Lopez and Hightower seek an order seek an order compelling 27 Plaintiff to provide further responses to Defendant Lockard s Interrogatory Nos. 4, 5, 7, 9, 15, 17 28 19, 22, 23, 24, and Defendant Lopez s Interrogatory Nos. 3, 5, 7, 11, 13, 15, 17, 20 and 21. In 12 1 response to each of these interrogatories, Plaintiff responded by simply referring to the factual 2 allegations set forth in the complaint. Defendants correctly argue that while the complaint may 3 contain several facts pertinent to these interrogatories, it may or may not include all supporting 4 facts. Moreover, Plaintiff did not verify the truth of his responses to the interrogatories since the 5 complaint and its factual allegations were not signed under penalty of perjury. Defendants argue 6 that by simply referring back to the facts set forth in the complaint, Plaintiff is frustrating 7 Defendants efforts to glean all supporting factual information Plaintiff possesses to support his 8 allegations. Without this information, Defendants cannot adequately prepare to defend 9 themselves against Plaintiff s claims. Plaintiff offers no argument that justifies his failure to 10 provide complete responses to the interrogatories. Plaintiff may not refer Defendants to the 11 complaint. Plaintiff must respond to each question and answer them as completely as he can. 12 Defendant s motion is therefore granted as to Defendant Lockard s Interrogatory Nos. 4, 5, 7, 9, 13 15, 17, 19, 22, 23 and 24. Defendant s motion is granted as to Defendant Lopez s Interrogatory 14 Nos. 3, 5, 7, 11, 13, 15, 17, 20 and 21. 15 Defendant Lockard seeks an order compelling a response to his Interrogatory Nos. 22, 23 16 and 24 because these requests do not exceed the permissible number. Plaintiff objected to these 17 interrogatories on the ground that these requests surpassed the statutory limit of twenty-five 18 interrogatories per party. Plaintiff counted Interrogatory 9 as two separate interrogatories and 19 Interrogatory 12 as three separate interrogatories. 20 Interrogatory 9 asks Plaintiff to ,”State each and every fact in support of your contention 21 that you were injured by Defendant Lockard during the July 8, 2010, incident that is the subject 22 of your complaint, including: (a) a detailed description of the injury; and (b) the date the injury 23 was incurred and/or diagnosed.” Federal Rule of Civil Procedure 33(a)(1) states that discrete 24 sub-parts of an interrogatory should be considered as separate interrogatories for purposes of 25 calculating the twenty-five interrogatory limit. Defendants correctly argue that Interrogatory 26 subparts are to be counted as one interrogatory for the purpose of this rule if they are logically or 27 factually subsumed within and necessarily related to the primary question. Trevino v. ACB 28 American, Inc., 232 F.R.D. 612, 614 (N.D. Cal. 2006); Safeco of America v. Rawstron, 181 13 1 F.R.D. 441, 445 (C.D. Cal. 1998); Kendall v. GES Exposition Services, Inc., 174 F.R.D. 684, 2 685 (D. Nevada 1997). Defendant Lockard persuasively argues that subparts (a) and (b) are 3 subsumed within and necessarily related to the primary question. A detailed description of the 4 injury and the date the injury was incurred clearly meet the above standard. Plaintiff offers no 5 persuasive arguments to the contrary. The motion should therefore be granted as to Interrogatory 6 Nos. 22, 23 and 24. 7 Plaintiff counted Interrogatory No. 12 as three separate questions. Interrogatory No. 12 8 related to damages and asked Plaintiff to state the dollar amount of damages, including (a) a 9 description of the method used to calculate the amount for each category of damages; (b) all 10 facts which you contend support each claimed category of damages. And (c) all documents you 11 contend support each claimed category of damages. Defendants persuasively argue that subparts 12 (a), (b) are subsumed within and necessarily related to the primary question. Plaintiff offers no 13 persuasive argument that they are separate and independent question. Defendant Lockard 14 concedes that subpart (c) is independent of the primary question and does count as a separate 15 interrogatory. The motion should therefore be granted as to subparts (a) and (b). Plaintiff’s Motion To Compel (ECF No. 96) 16 3. 17 Plaintiff seeks an order compelling a response to his Request for Production of 18 Documents No. 6. Plaintiff seeks the production of a single document that Defendants deem to 19 be privileged: “Confidential Supplement to Appeal, „Appeal Inquiry, dated August 10, 2010, 20 concerning Inmate Appeal Log Number KVSP-O-10-01442, authored by Lt. Sandoval and Chief 21 Deputy Biter.” Plaintiff argues that Defendants failed to perfect their assertion of privilege and 22 that Defendants claim of privilege is without merit. Regarding Plaintiff s argument that 23 Defendants failed to perfect their assertion of privilege, Defendants concede that Plaintiff is 24 technically correct. However, Defendants argue that it is clear that they intended to assert the 25 privilege as evidence by their simultaneous service of the privilege log which clearly identifies 26 the Supplement to Appeal as being privileged, the basis of the privilege, identification that the 27 Confidential Supplement to Appeal was responsive to Request No. 6, and all other information 28 required to assert a privilege. 14 1 Defendants support their motion with the declaration of B. Hancock, the Litigation 2 Coordinator at Kern Valley State Prison. In rebuttal to Plaintiff s argument that there are no 3 safety and security concerns in releasing the supplement, Hancock s declaration establishes the 4 following. As part of the investigation of staff complaints, such as Plaintiff s appeal, other 5 inmates may be identified as witnesses or persons having information, and sometimes as 6 confidential informants, and their statements and names may be recorded in writing in any report 7 that is generated as part of the investigation. (Hancock Decl. ¶¶ 5-9.) Other officers may also be 8 identified and their statements may also appear in the report. ( Id.) Disclosing any of the 9 aforementioned information can give rise to serious safety and security concerns. For example, 10 if an inmate is questioned and his statement does not “support” the complaining inmate s version 11 of events, the inmate who made the statement may suffer physical retaliation from the 12 complaining inmate either directly or through other inmates. (Id.) There have been incidents 13 where this has occurred because the confidential information was inadvertently disclosed. (Id.) 14 Likewise, an officer who gives a different version of the events may also become the 15 subject of possible assault by the complaining inmate either directly or through other inmates. 16 Other officers may be hesitant to disclose information about the officer against whom the 17 complaint was made if the reporting officer know that his name will be disclosed. (Hancock 18 Decl. ¶ 7.) In addition, disclosure of the investigative report alerts inmates as to the procedures 19 employed in investigating staff complaints and this can undermine the investigative process. 20 (Hancock Decl. ¶ 8.) Consequently, even when a confidential document related to an appeal 21 appears to be safe, such disclosure still has the potential of undermining all future staff complaint 22 investigations if staff and inmates come to know that such productions can – and do – occur. 23 Finally, Defendants argue that Plaintiff can procure any potentially useful information through 24 other avenues, including written discovery requests. 25 The Court finds Defendants argument to be persuasive. Plaintiff s argument that 26 disclosure would not affect the safety and security of the institution is based upon his own 27 opinions and conclusions. Plaintiff has not offered any persuasive argument that the information 28 sought should not be withheld on the basis of institutional safety and security. The motion 15 1 should therefore be denied. Plaintiff’s Motion To Compel (ECF No. 136) 2 4. 3 Plaintiff seeks an order compelling Defendant Hightower to respond to Interrogatories 4 Nos. 1 through 3 as directed by the Court s June 5, 2015, order granting Plaintiff leave to 5 propound additional interrogatories. (ECF No. 125.) In that order, the Court ordered that within 6 twenty days of service of the order, Plaintiff shall serve his three proposed interrogatories upon 7 Defendant Hightower, as instructed by this order. The Court advised Plaintiff to redraft the 8 interrogatories as needed to address Defendants objections. The Court further ordered that 9 discovery was reopened solely for the purpose of resolving Plaintiff s three interrogatories to 10 Defendant Hightower. 11 Defense counsel indicates that she misread the order, construing it as requiring Defendant 12 Hightower to serve responses to Plaintiff s three additional interrogatories within twenty days of 13 the order. On June 25, 2015, Defendant Hightower served verified responses to Plaintiff s three 14 additional interrogatories. On July 2, 2015, defense counsel received Plaintiff s Fourth Request 15 for Interrogatories to Defendant Hightower. In July 9, 2015, letter to defense counsel, Plaintiff 16 stated that Defendant Hightower had responded to the wrong interrogatories and demanded that 17 he respond to the fourth, revised set of interrogatories. On July 14, 2015, defense counsel wrote 18 Plaintiff and explained that she has misread the June 5, 2015, order, and that Defendant 19 Hightower served his verified responses to Plaintiff s interrogatories. Counsel further advised 20 Plaintiff that the revised interrogatories sought the same information as the interrogatories 21 Defendant Hightower had responded to. Defense counsel also stated that since Defendant 22 Hightower had provided Plaintiff with verified, substantive responses, Defendant Hightower 23 would not be serving any additional responses. This motion ensued. 24 The June 25, 2015, verified response to the interrogatories follows. Interrogatory No. 1 25 asked Hightower, “Would you please explain why you did not report hearing defendant Lockard 26 utilize his 40MM launcher gun?” Hightower responded: “At the time of the incident, I did not 27 hear or see Defendant Lockard discharge his weapon and did not hear or see Plaintiff being shot. 28 Interrogatory No. 2 asked Hightower.” Would you please explain what obstructed you from 16 1 observing or hearing defendant Lockard discharge a direct impact sponge round from his 40MM 2 Launcher Gun? Hightower responded that he did not see or hear Lockard discharge his weapon 3 because at the time of the incident, his attention was divided between three inmates resisting staff 4 members along with multiple people screaming. Interrogatory No. asks Hightower, “Would you 5 please explain why you did not report observing Plaintiff being struck with a direct impact 6 sponge round?” Hightower s response was similar to that of Interrogatory No. 2, “I cannot 7 report force being used that I did not witness, and I did not see or hear Defendant Lockard 8 discharge his weapon because at the time of the incident my attention was divided between three 9 inmates resisting staff members along with multiple people screaming; it was a loud and 10 confusing scene.” 11 Plaintiff s further interrogatories ask the same questions of Defendant Hightower, with 12 the exception of asking for a more detailed explanation. Interrogatory No. 1 adds, “Would you 13 explain why you omitted to report the fact that defendant discharged his 40MM Launcher Gun 14 on July 8, 2010? Hightower previously responded that he did not see Lockard discharge the 40 15 MM Gun Launcher. Interrogatory No.2 adds, “ Would you please explain your inability to see 16 and/or hear defendant Lockard discharge a direct impact sponge round from his 40MM Launcher 17 Gun? Hightower responded that he did not see Lockard discharge the Launcher Gun. 18 Interrogatory No. 3 adds, “Would you please explain why you omitted to report the fact that 19 Plaintiff was struck with a direct impact sponge round on July 8, 2010? Hightower responded 20 that he did not see Lockard discharge the Launcher Gun, and that the scene was confusing and 21 his attention was divided. The Court finds that Defendant Hightower s answers are responsive. 22 Hightower explained what he did or did not see, and how he came to see or hear certain events. 23 Plaintiff s questions were asked and answered. The motion to compel should therefore be 24 denied. 25 5. Order To Show Cause (ECF No. 134) 26 On July 20, 2015, an order to show cause was entered, directing Defendant Lockard to 27 show cause why default should not be entered against him for failure to participate in discovery. 28 (ECF No. 134.) On August 18, 2105, Defendant Lockard filed a response to the order to show 17 1 cause (ECF No. 145.) The response is supported by the declaration of counsel for Defendant 2 Lockard. The Court finds good cause exists to discharge the order to show cause. 3 6. Motions For Ruling And Judicial Notice (ECF Nos. 111, 115, 121) 4 Plaintiff has filed a request for the Court to take judicial notice of adjudicated facts in 5 support of his opposition to Defendants motion to compel. In light of the Court s ruling on 6 Defendants motion, Plaintiff s request is moot. Plaintiff also seeks a ruling on his various 7 motions to compel. In light of the rulings in this order, Plaintiff s motions are denied as moot. 8 7. Request For Extension Of Time (ECF No. 146) 9 Plaintiff seeks an extension of time in which to file a reply to Defendants opposition to 10 his July 29, 2015, motion to compel. (ECF No. 136.) The Court finds that a reply is unnecessary 11 to the Court s ruling in this case. The motion was denied on the ground that Plaintiff received 12 responsive answers to his interrogatories in Defendant Hightower s June 25, 2015, verified 13 responses. The further interrogatories seek the same information. No further legal argument is 14 necessary to resolution of this question. Plaintiff s request for extension of time is denied as 15 moot. 16 The Court notes that the deadline for filing a dispositive motion has passed as of March 17 5, 2015. In light of the voluminous discovery motions in this case, and the need to depose 18 Plaintiff once all his responses to discovery have been received, the Court finds good cause to 19 extend the dispositive motion filing deadline in this case to December 1, 2015. Discovery in this 20 matter is closed, and will only be open to the extent that Plaintiff shall comply with this order. 21 The Court will grant Plaintiff thirty days in which to serve the responses to discovery directed in 22 this order. 23 In accordance with the above, IT IS HEREBY ORDERD that: 24 1. The July 20, 2015, order to show cause is vacated; 25 2. Defendant s December 8, 2014, motion to compel (ECF No. 92) is granted. Plaintiff shall serve his responses within thirty days of the date of this order. 26 27 28 3. Plaintiff s November 17, 2014, and December 15, 2014, motions to compel (ECF Nos. 87 and 96) are denied; 18 1 4. Plaintiff s July 29, 2015, motion to compel is denied; 2 5. Plaintiff s motion for judicial notice (ECF No. 111) and motions for ruling (ECF Nos. 115, 121) are denied as moot; 3 6. 4 Plaintiff s motion for extension of time to file a reply (ECF No. 146) is denied; 5 7. 6 The dispositive motion filing deadline is December 1, 2015. Further extensions of time will only be granted on a showing of good cause. 7 8 9 IT IS SO ORDERED. 10 Dated: September 3, 2015 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19
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