(PC) Allen v. Kramer et al, No. 1:2015cv01609 - Document 31 (E.D. Cal. 2018)
Court Description: ORDER Denying Plaintiff's 23 Motion to Compel; Denying Plaintiff's 24 Motion for an Investigator; Granting Defendants' 26 Motion for Extension of Time to File an Opposition; and Granting Defendants' Requests to Modify the Discovery and Scheduling Order re 29 , 30 , signed by Magistrate Judge Michael J. Seng on 1/18/18. Dispositive Motion Due Within Thirty Days. (Gonzalez, R)
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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 DAVID ALLEN, 13 14 15 16 CASE No. 1:15-cv-01609-DAD-MJS (PC) Plaintiff, ORDER (1) DENYING PLAINTIFF’S MOTION TO COMPEL; v. NORM KRAMER, et al., Defendants. (2) DENYING PLAINTIFF’S MOTION FOR AN INVESTIGATOR; 17 18 19 20 21 (3) GRANTING DEFENDANTS’ MOTION FOR EXTENSION OF TIME TO FILE AN OPPOSITION; AND (4) GRANTING DEFENDANTS’ REQUESTS TO MODIFY THE DISCOVERY AND SCHEDULING ORDER 22 23 24 (ECF NOS. 23, 24, 26, 29, 30) Plaintiff, a civil detainee proceeding pro se, has filed this civil rights action seeking 25 relief under 42 U.S.C. § 1983. This action proceeds on Plaintiff’s original complaint 26 against Defendants Pam Ahlin, Fresno Board of Supervisors, Norm Kramer, and 27 Stephen Mayberg. The gravamen of Plaintiff’s claims is that Defendants built and 28 1 housed individuals like him in a facility located in an area known to be hyper- 2 endemic for contraction of Valley Fever, an infection caused by exposure to 3 coccidioides (also called coccidioidomycosis) fungus, and failed to take reasonable 4 steps to protect him from the disease. Pending before the Court are the following motions: (1) Plaintiff’s motion to 5 6 compel discovery (ECF No. 23); (2) Plaintiff’s request for an investigator (ECF No. 24); 7 (3) Defendants Ahlin, Kramer and Mayberg’s request for extension of time to file an 8 opposition to Plaintiff’s motion to compel (ECF No. 26); and (4) Defendants’ two requests 9 for a modification of the Discovery and Scheduling Order1 (ECF Nos. 29, 30). 10 I. 11 Relevant Procedural History Plaintiff initiated this action on October 22, 2015. The complaint was screened on 12 March 28, 2016, and dismissed with leave to amend on qualified immunity grounds. 13 (ECF No. 8.) 14 Plaintiff subsequently filed a motion for reconsideration of the screening order. 15 (ECF No. 9.) On August 17, 2016, the undersigned determined that Plaintiff’s claims are 16 not barred by the doctrine of qualified immunity and that the allegations are sufficient to 17 proceed to service against Defendants Mayberg, Kramer, Ahlin and the Fresno Board of 18 Supervisors on a safe conditions claim. (ECF No. 10.) Plaintiff was thus directed to file a 19 notice of his willingness to proceed on the complaint as screened or file an amended 20 pleading. 21 On September 19, 2016, plaintiff filed a response indicating his willingness to 22 proceed on the complaint as screened. (ECF No. 11.) Accordingly, on September 22, 23 2016, the undersigned filed consistent findings and recommendations, which were 24 adopted in full on November 23, 2016. (ECF Nos. 12, 13.) Defendants were served 25 shortly thereafter. 26 27 28 1 Defendant Fresno Board of Supervisors is represented by Fresno County Counsel whereas Defendants Kramer, Mayberg and Ahlin are represented by the Deputy Attorney General. Both sets of Defendants filed a request to modify the Discovery and Scheduling Order. 2 On February 24, 2017, a Discovery and Scheduling Order (“DSO”) issued setting 1 2 the discovery deadline for October 24, 2017, and the dispositive motion deadline for 3 January 5, 2018. (ECF No. 18.) 4 II. 5 Plaintiff’s Motion to Compel Plaintiff’s motion to compel seeks further responses to his discovery requests and 6 $200 in sanctions against Defendants Kramer, Mayberg, and Ahlin for their allegedly 7 dilatory discovery tactics. 8 A. Background 9 Plaintiff propounded his first set of requests for production of documents (“RPD”) 10 on Defendants Kramer, Mayberg, and Ahlin on July 21, 2017; his first set of 11 interrogatories on August 15, 2017; and his second set of RPD on September 12, 2017. 12 Defendants Kramer, Mayberg, and Ahlin responded to the first set of RPDs on 13 August 22, 2017. (Pl.’s Mot. to Compel [“MTC”] Ex. A). Defendants Kramer and Mayberg 14 then responded to the first set of interrogatories on October 2, 2017 (MTC Ex. B), while 15 Defendant Ahlin sought and was granted an extension through October 6, 2017, to 16 respond to the interrogatories (MTC Ex. D). These Defendants allegedly misfiled the 17 second set of RPDs and therefore did not respond to them before the response 18 deadline. See Decl. of C. Murphy in Supp. of Defs.’ Opp’n (ECF No. 27-1) ¶ 6. In any 19 event, Defendants contend this second set of RPDs is identical to the first set2, and the 20 response deadline fell after the October 24, 2017, discovery deadline in this case. Id. 21 Plaintiff does not dispute either of these contentions. 22 B. Legal Standards 23 The discovery process is subject to the overriding limitation of good faith, and 24 callous disregard of discovery responsibilities cannot be condoned. Asea, Inc. v. 25 Southern Pac. Transp. Co., 669 F.2d 1242, 1246 (9th Cir. 1981) (quotation marks and 26 citation omitted). “Parties may obtain discovery regarding any nonprivileged matter that 27 2 28 The Court is unable to verify this claim. No copy of the second set of RPDs has been provided to the Court. 3 1 is relevant to any party’s claim or defense and proportional to the needs of the case, 2 considering the importance of the issues at stake in the action, the amount in 3 controversy, the parties’ relative access to relevant information, the parties’ resources, 4 the importance of the discovery in resolving the issues, and whether the burden or 5 expense of the proposed discovery outweighs its likely benefit.” Fed R. Civ. P. 26(b)(1). 6 Generally, if the responding party objects to a discovery request, the party moving 7 to compel bears the burden of demonstrating why the objections are not justified. 8 Grabek v. Dickinson, No. CIV S-10-2892 GGH P, 2012 WL 113799, at *1 (E.D. Cal. Jan. 9 13, 2012); Womack v. Virga, No. CIV S-11-1030 MCE EFB P, 2011 WL 6703958, at *3 10 (E.D. Cal. Dec. 21, 2011); Mitchell v. Felker, No. CV 08-119RAJ, 2010 WL 3835765, at 11 *2 (E.D. Cal. Sep. 29, 2010); Ellis v. Cambra, No. 1:02-cv-05646-AWI-SMS PC, 2008 12 WL 860523, at *4 (E.D. Cal. Mar. 27, 2008). This requires the moving party to inform the 13 Court which discovery requests are the subject of the motion to compel, and, for each 14 disputed response, why the information sought is relevant and why the responding 15 party’s objections are not meritorious. Grabek, 2012 WL 113799, at *1; Womack, 2011 16 WL 6703958, at *3; Mitchell, 2010 WL 3835765, at *2; Ellis, 2008 WL 860523, at *4. 17 However, the Court is vested with broad discretion to manage discovery and 18 notwithstanding these procedures, Plaintiff is entitled to leniency as a pro se litigant; 19 therefore, to the extent possible, the Court endeavors to resolve his motion to compel on 20 its merits. Hunt v. County of Orange, 672 F.3d 606, 616 (9th Cir. 2012); Surfvivor Media, 21 Inc. v. Survivor Productions, 406 F.3d 625, 635 (9th Cir. 2005); Hallett v. Morgan, 296 22 F.3d 732, 751 (9th Cir. 2002). 23 C. Analysis 24 Plaintiff claims that Defendants’ responses to his discovery requests were late 25 and/or inadequate. However, he fails to identify with particularity which responses he 26 finds inadequate and why. He objects generally to Defendants’ objections based on, for 27 example, the deliberative process and the official information privilege, but presents no 28 4 1 legal argument why the objections are improper in the contexts asserted. Without 2 providing this information, Plaintiff has not met his burden on his motion to compel. 3 In addition, to the extent Plaintiff’s motion can be construed as a request for an 4 extension of the discovery deadline, the Court does not find good cause. See Fed. R. 5 Civ. P. 16(b)(4). Plaintiff was in receipt of Defendants’ responses to the first set of RPDs 6 as early as August 22, 2017, yet he waited until the eve of the discovery deadline to 7 challenge them. He also does not contest the Defendants’ claim that the second set of 8 RPDs is identical to the first. Since Plaintiff himself could have prevented the need for an 9 extension, his motion to compel and any related request for an extension of the 10 discovery deadline must be denied. 11 III. 12 Plaintiff’s Request for an Investigator On November 2, 2017, Plaintiff submitted a request for an investigator pursuant to 13 Federal Rule of Civil Procedure 26(c) “to assist plaintiff in the compelling of discovery 14 from the defendants.” Plaintiff seeks the appointment of an investigator to consider the 15 Defendants’ objections to Plaintiff’s unspecified discovery requests. 16 Construing this request as a discovery-related motion, it will be denied, having 17 been filed on November 2, 2017, several days after the October 24, 2017, discovery 18 deadline. See DSO at 2 ¶ 7 (“[D]iscovery motions will not be considered if filed after the 19 discovery deadline.”) 20 To the extent the motion is deemed a request for appointment of counsel, it too 21 will be denied. Plaintiff does not have a constitutional right to appointed counsel in this 22 action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot 23 require an attorney to represent plaintiff pursuant to 28 U.S.C. ' 1915(e)(1). Mallard v. 24 United States District Court for the Southern District of Iowa, 490 U.S. 296, 298, 109 25 S.Ct. 1814, 1816 (1989). However, in certain exceptional circumstances the Court may 26 request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 27 F.3d at 1525. 28 5 1 Without a reasonable method of securing and compensating counsel, the Court 2 will seek volunteer counsel only in the most serious and exceptional cases. In 3 determining whether Aexceptional circumstances exist, the district court must evaluate 4 both the likelihood of success of the merits [and] the ability of the [plaintiff] to articulate 5 his claims pro se in light of the complexity of the legal issues involved.@ Id. (internal 6 quotation marks and citations omitted). In the present case, the Court does not find the 7 required exceptional circumstances. 8 IV. 9 Modification to the Discovery and Scheduling Order On January 4, 2018, the Defendants moved to modify the DSO as it relates to the 10 dispositive motion deadline, originally set for January 5, 2018. Good cause appearing, 11 this deadline will be extended as set forth below. 12 V. Conclusion 13 Based on the foregoing, IT IS HEREBY ORDERED that: 14 1. Plaintiff’s motion to compel discovery (ECF No. 23) is DENIED; 15 2. Plaintiff’s motion for an investigator (ECF No. 24) is DENIED; 16 3. Defendants’ request for an extension of time (ECF No. 26) is GRANTED. The 17 18 opposition filed on November 27, 2017, is deemed timely filed; and 4. Defendants’ requests for a modification of the DSO (ECF Nos. 29, 30) are 19 GRANTED. The dispositive motion deadline is continued by 30 days from the 20 date of this Order. 21 22 23 IT IS SO ORDERED. Dated: January 18, 2018 /s/ 24 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 25 26 27 28 6
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