Brown v. Vail et al, No. 2:2009cv01546 - Document 94 (W.D. Wash. 2015)
Court Description: ORDER granting pltf's 87 Motion to Compel; pltf's declaration due within 10 days; dfts' response due within 7 days by Judge Ricardo S Martinez.(RS)
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Brown v. Vail et al Doc. 94 1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 8 ) ) CASE NO. C09-1546RSM ) ) ) ORDER GRANTING PLAINTIFF’S ) MOTION TO COMPEL ) ) ) ) GREGORY TYREE BROWN, 9 Plaintiff, 10 v. 11 12 BERNARD WARNER, et al., Defendants. 13 14 I. INTRODUCTION 15 16 This matter comes before the Court on Plaintiff’s Motion to Compel. Dkt. #87. 17 Plaintiff seeks to compel responses to several Interrogatories and Requests for Production from 18 various Defendants. For the reasons set forth below, the Court GRANTS Plaintiff’s motion. 19 II. BACKGROUND 20 Plaintiff is a Washington State inmate who has filed numerous petitions in this Court 21 22 over the last 21 years. See, e.g., C93-0979CRD, C97-5053FDB, C03-3818MJP, C04-0564JCC, 23 C07-1441RSM, C08-5326RBL and C14-5524RJB. In the instant matter (C09-1546RSM), 24 which was filed in 2009, Mr. Brown has alleged that Defendants violated his right to 25 procedural due process by confiscating and immediately destroying his personal property as 26 “nuisance contraband” pursuant to Department of Corrections (“DOC”) Policy 420.375 27 28 because the state administrative code required that he be allowed the pre-deprivation option of ORDER PAGE - 1 Dockets.Justia.com 1 sending the property elsewhere. Dkt. #61. In 2011 and 2012, the parties filed cross-motions 2 for summary judgment addressing his claims. The Court ultimately granted in part and denied 3 in part the motions. Dkt. #66. As a result, procedural due process claims were allowed to 4 proceed against Defendant Lopez in his individual and official capacities and Defendant 5 Warner in his official capacity (as he had been substituted into the case as Secretary of the 6 7 8 Department of Corrections). Id. This Court then appointed pro bono counsel for Mr. Brown. Dkt. #70. 9 10 After appointment of counsel, Mr. Brown took no action on his case for a year. Accordingly, the Court issued an Order to Show Cause why the case should not be dismissed 11 for failure to prosecute. Dkt. #72. On January 8, 2014, Plaintiff responded, representing to the 12 13 Court that he had secured counsel and had been considering his options to resolve the matter. 14 Dkt. #73. Plaintiff also represented to the Court that Defendants had revised Policy 402.375, 15 and therefore Plaintiff was evaluating the revisions in light of the allegations in his Complaint. 16 Id. 17 18 On September 9, 2014, after receiving several additional status reports from the parties, 19 the Court set this matter for trial on June 15, 2015. Dkt. #78. The parties’ current discovery 20 deadline is February 17, 2015. Id. 21 III. DISCUSSION 22 A. Discovery Disputes 23 24 “Litigants ‘may obtain discovery regarding any matter, not privileged, that is relevant to 25 the claim or defense of any party.’” Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 26 635 (9th Cir. 2005) (quoting Fed. R. Civ. P. 26(b)(1)). “Relevant information for purposes of 27 discovery is information ‘reasonably calculated to lead to the discovery of admissible 28 ORDER PAGE - 2 1 2 3 4 evidence.’” Id. “District courts have broad discretion in determining relevancy for discovery purposes.” Id. (citing Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002)). If requested discovery is not answered, the requesting party may move for an order compelling such discovery. Fed. R. Civ. P. 37(a)(1). “The party who resists discovery has the 5 burden to show that discovery should not be allowed, and has the burden of clarifying, 6 7 8 9 10 explaining, and supporting its objections.” Cable & Computer Tech., Inc. v. Lockheed Sanders, Inc., 175 F.R.D. 646, 650 (C.D. Cal. 1997). Here, Plaintiff seeks an Order compelling Defendants to produce documents in response to three Interrogatories and six Requests for Production which have been directed at various 11 Defendants in this matter. The Court addresses each of these discovery requests in turn, below. 12 13 1. First Interrogatory Directed at Defendant Warner 14 Plaintiff first seeks to compel a response to the following Interrogatory directed at 15 Defendant Warner: 16 Identify each person with knowledge of facts relating to this case and the issue, subject, and facts the person has knowledge of, including but not limited to persons with knowledge of Mr. Brown’s removal from his cell and placement in the Segregation Unit on or about October 30 or 31, 2006 (including the decision-making process leading up to the removal), the collection and seizure of property from Mr. Brown’s cell on or about November 1, 2006 (including each person with knowledge of the decisionmaking process leading up to it), and the discarding of that property or return to Mr. Brown for mailing out of the prison (including each person with knowledge of the decision-making process culminating in the discarding or return). 17 18 19 20 21 22 23 24 Dkt. #88, Ex. F. Defendant Warner answered the Interrogatory by stating that he had no 25 personal knowledge of the facts related to the case or the underlying incident on November 1, 26 2006, and that he was not employed by the Department of Corrections (“DOC”) in 2006, but 27 that he and other DOC employees have knowledge of the policies and procedures at issue. Id. 28 ORDER PAGE - 3 1 Plaintiff argues that Defendant Warner cannot limit his response to only his personal 2 knowledge, and must be compelled to seek responsive information from others in the DOC 3 with knowledge. Dkt. #87 at 6-8. Plaintiff bases his argument on the premise that Defendant 4 Warner is, in effect, the DOC for purposes of this lawsuit. Id. 5 Defendant Warner has been sued only in his official capacity. It is well established that 6 7 a suit against a named defendant in his official capacity is the functional equivalent of a suit 8 against the state. Center for Bio-Ethical Reform, Inc. v. LASD, 533 F.3d 780, 799 (9th Cir. 9 2008); Butler v. Elle, 281 F.3d 1014, 1023 (n.8) (9th Cir. 2002); Ruvalcaba v. City of Los 10 Angeles, 167 F.3d 514, 524 n.3 (9th Cir. 1999), all citing Kentucky v. Graham, 473 U.S. 159, 11 165-66, 105 S.Ct. 3099, 87 L. Ed. 2d 114 (1985). Thus, it is not proper for Defendant Warner 12 13 to rely only on his personal knowledge when responding to Interrogatories, particularly to those 14 directed toward events that occurred before he was employed. Essex Builders Group, Inc. v. 15 Amerisure Ins. Co., 230 F.R.D. 682, 687 (M/D/ Fla. 2005) (“Like interrogatories, a party 16 cannot refuse to admit or deny a request for admission based on lack of personal knowledge if 17 18 the information is reasonably available to the party.” (citing Asea, Inc. v. S. Pac. Transp. Co., 19 669 F.2d 1242, 1245 (9th Cir. 1982)). In his response to the instant motion, Defendant also 20 appears to object to the Interrogatory on the basis that responsive information is available 21 elsewhere. Dkt. #89 at 4-5. However, Defendant Warner did not present such an objection in 22 response to the Interrogatory itself. See Dkt. #88, Ex. F. Accordingly, the Court does not 23 24 consider such argument on this motion. For all of these reasons, Defendant Warner shall 25 26 27 28 ORDER PAGE - 4 1 2 supplement his substantive response to this Interrogatory no later than February 17, 2015, after gathering responsive information from all sources available to him.1 3 2. Second Interrogatory Directed at Defendant Warner 4 Plaintiff next seeks to compel a response to the following Interrogatory directed at 5 Defendant Warner: 6 Identify the reasons for and facts regarding removing Mr. Brown from his cell and placing him in to the Segregation Unit on or about October 30 or 31, 2006, or any other time when Mr. Brown was removed from his cell and placed in the Segregation Unit, including whether, on those occasions, property was collected, packed up, seized, searched, discarded in the garbage, or returned to Mr. Brown to mail out of the prison. 7 8 9 10 11 Dkt. #88, Ex. F. As with the foregoing Interrogatory, Defendant Warner responded to this 12 Interrogatory that he had no personal knowledge or information of the incident at that or any 13 other time. Id. Again, Plaintiff argues that Defendant Warner cannot limit his response to only 14 his personal knowledge, and must be compelled to seek responsive information from others in 15 16 the DOC with knowledge. Dkt. #87 at 6-8. Plaintiff bases his argument on the premise that 17 Defendant Warner is, in effect, the DOC for purposes of this lawsuit. Id. 18 For the same reasons set forth above, Defendant Warner shall supplement his 19 substantive response no later than February 17, 2015, to this Interrogatory after gathering 20 21 responsive information from all sources available to him. Likewise, to the extent that 22 Defendant objects to the Interrogatory on the basis that responsive information is available 23 elsewhere, the Court will not consider such argument, as Defendant Warner did not present that 24 objection in response to the Interrogatory itself. See Dkt. #88, Ex. F. 25 26 27 28 1 Nothing in this Order precludes the parties from stipulating to a different response date, so long as such stipulation does not extend any of the other remaining pre-trial deadlines currently set by the Court. ORDER PAGE - 5 1 2 3 3. Third Interrogatory Directed at Defendant Warner Plaintiff next seeks to compel a response to the following Interrogatory directed at Defendant Warner: 4 Identify whether and how, on November 1, 2006, prison employees recorded in log books or otherwise the names of prison employees who searched or packed up inmate property from inmates’ cells, and identify all employees’ names recorded in said log books or otherwise with respect to the November 1, 2006 search of Mr. Brown’s cell. 5 6 7 8 Dkt. #88, Ex. F. As with the foregoing Interrogatories, Defendant Warner responded to this 9 Interrogatory that he had no personal knowledge or information of the incident. Id. Plaintiff’s 10 arguments to that response are also the same. For the same reasons set forth above, Defendant 11 Warner shall supplement his substantive response no later than February 17, 2015, to this 12 13 Interrogatory after gathering responsive information from all sources available to him. To the 14 extent that Defendant objects to the Interrogatory on the basis that responsive information is 15 available elsewhere, the Court will not consider such argument, as Defendant Warner did not 16 present that objection in response to the Interrogatory itself. See Dkt. #88, Ex. F. 17 19 4. Scope of Search – First and Second Requests for Production Directed at Defendant Warner, First Request for Production Directed at Former Defendant Vail, and First and Second Requests for Production Directed at Defendant Lopez 20 Plaintiff next seeks to compel documents in response to the following Requests for 18 21 Production directed at Defendants Warner and Lopez and former Defendant Vail: 22 [To Warner] Produce all documents in your possession, custody, or control that refer or relate to Mr. Brown or the subject matter of this litigation, including but not limited to records of Mr. Brown’s medical history and treatment, and both official and unofficial communications that (1) explain or interpret the relevant DOC policies, (2) guide officials or employees in applying the policies, and (3) define or discuss the meaning of any terms used in the policies, especially “contraband” and “nuisance contraband.” 23 24 25 26 27 28 ORDER PAGE - 6 1 Dkt. #88, Ex. G. Defendant Warner objected to this Request to the extent it sought attorney- 2 client privileged or work product privileged communications; on the basis that it was overbroad 3 and unduly burdensome; and on the basis that a complete, unredacted copy of MCC OM 4 420.375 would present a security and safety risk to the DOC. Id. 5 [To Warner] Produce all documents in your possession, custody, or control that refer or relate to the removal of Mr. Brown from his cell and placement in the Segregation Unit on or about October 30 or 31, 2006 (including all documents that refer or relate to the decision-making process culminating in Mr. Brown’s removal); the collection and seizure of Mr. Brown’s property on or about November 1, 2006 (including all documents that refer or relate to the decision-making process culminating in said collection and seizure); and the resulting discarding of that property in the garbage or return to Mr. Brown for mailing out of the prison (including all documents that refer or relate to decision-making processes culminating in said discarding or return). 6 7 8 9 10 11 12 13 Dkt. #88, Ex. G. Defendant Warner did not object to this Request. Id. Rather, he responded 14 by citing to the pages numbers of previously-produced documents. 15 [To Lopez] Provide copies of any and all written complaints submitted by prison inmates regarding loss or destruction of property during cell searches. 16 17 18 19 Dkt. #88, Ex. B. Defendant Lopez objected to this Request on the basis that it was irrelevant and overbroad, but further responded that he had no documents responsive to the request. Id. [To Lopez] Produce all documents in your possession, custody, or control that refer or relate to Mr. Brown or the subject matter of this litigation, including but not limited to records of Mr. Brown’s medical history and treatment, and both official and unofficial communications that (1) explain or interpret the relevant DOC policies, (2) guide officials or employees in applying the policies, and (3) define or discuss the meaning of any terms used in the policies, especially “contraband” and “nuisance contraband.” 20 21 22 23 24 25 Dkt. #88, Ex. E. . Defendant Lopez objected to this Request to the extent it sought attorney- 26 client privileged or work product privileged communications; on the basis that it was overbroad 27 and unduly burdensome. He then cited to previously-produced response documents. Id. 28 ORDER PAGE - 7 [To Vail] Provide a copy of any and all memoranda, directives and other interdepartmental communications generated by the Washington State DOC and prison employees regarding the implementation of DOC Policy 420.375. 1 2 3 4 5 6 7 Dkt. #88, Ex. C. Former Defendant Vail responded that after a reasonable search, no responsive documents were found. Id. Although not entirely clear, it does not appear that Plaintiff takes issue with the specific objections and responses from the Defendants, except with respect to the medical record 8 requested as further discussed below. Rather, Plaintiff is upset with the way defense counsel 9 10 has responded to his verbal requests for information about the scope of the searches conducted 11 for documents responsive to these Requests. See Dkt. #87 at 8-10. Defense counsel responds 12 that Plaintiff may obtain such information through discovery from the Defendants, but may not 13 obtain it by asking defense counsel informally during discovery conferences. Dkt. #89 at 5. 14 The Court expects the parties to work cooperatively and in an efficient and economical 15 16 manner. Defendants cite no legal authority precluding defense counsel from gathering the 17 information sought and providing it to Plaintiff’s counsel informally. 18 cooperation would have preserved Plaintiff’s and the Court’s resources with respect to this Moreover, such 19 portion of the motion. Accordingly, the Court directs the parties to meet and confer again 20 21 regarding the scope of the searches conducted with respect to these four Requests, and expects 22 defense counsel to provide such information in a cooperative and forthcoming manner. Should 23 this issue come before the Court again, defense counsel is warned that sanctions may be 24 imposed. 25 5. Mr. Brown’s Medical and Central Files 26 27 Plaintiff next argues that Defendant has refused to produce copies of Mr. Brown’s 28 medical and central files in response to requests for production. Dkt. #87 at 10-11. Defendants ORDER PAGE - 8 1 respond that Mr. Brown’s request is “absurdly overbroad,” and that he can review and receive 2 the files any time he would like in any event. 3 misunderstand their burden on this motion. 4 Dkt. # 89 at 8. Defendants apparently They have failed to demonstrate that these documents are irrelevant, and have failed to explain why it would be more burdensome to 5 Plaintiff’s counsel when they admit that Plaintiff is entitled to copies himself. As a result, 6 7 8 9 10 Defendants shall provide copies of these files to Plaintiff’s counsel no later than February 17, 2015. 6. Second Request for Production Directed at Former Defendant Vail Finally, Plaintiff seeks documents responsive to the following Request directed at 11 former Defendant Vail: 12 Provide a true and accurate copy of the Washington State Department of Corrections Offender Grievance Manual. 13 14 Dkt. #88, Ex. D. Defendant Vail objected to this Request on the basis that it is irrelevant, and 15 16 overly broad and unduly burdensome because it fails to specific a timeframe. Id. 17 Defendants’ arguments are not well-taken, particularly because in the same breath 18 Defendants note that Plaintiff can obtain a copy of the manual by making a public records 19 request for it. See Dkt. 389 at 10, fn. 2. Defendants have failed to demonstrate that the manual 20 21 is irrelevant, or that the request is overbroad or unduly burdensome. As a result, Defendants 22 shall provide a copy of the Manual to Plaintiff’s counsel no later than February 17, 2015. 23 However, if it has not already done so, Plaintiff shall identify the timeframe for which he 24 requests the manual. 25 B. Plaintiff’s Request for Attorney’s Fees 26 27 Plaintiff has requested his attorneys’ fees and costs incurred as a result of bringing this 28 motion. Federal Rule of Civil Procedure 37(a)(5) provides that if a motion to compel is ORDER PAGE - 9 1 granted, this Court must, after giving an opportunity to be heard, require the party or deponent 2 whose conduct necessitated the motion, the party or attorney advising that conduct, or both to 3 pay the movant’s reasonable expenses incurred in making the motion, including attorney’s fees. 4 Accordingly, Plaintiff shall submit a declaration setting forth the fees and costs incurred in 5 presenting the instant motion no later than ten (10) days from the date of this Order. 6 7 Defendants shall submit any response to the Declaration, within seven (7) days of receipt of the 8 declaration. After review of those submissions, the Court will issue a supplemental Order 9 regarding the award of attorney’s fees. 10 IV. CONCLUSION 11 Having reviewed Plaintiff’s motion, the response in opposition thereto and reply in 12 13 support thereof, along with all supporting declarations and the remainder of the record, the 14 Court hereby ORDERS: 15 1. Plaintiff’s Motion to Compel (Dkt. #87) is GRANTED as set forth above. 16 2. Plaintiff shall submit a declaration setting forth the fees and costs incurred in 17 presenting the instant motion no later than ten (10) days from the date of this Order. 18 19 Defendants shall submit any response to the Declaration, which may be no longer 20 than five (5) pages in length, within seven (7) days of receipt of the declaration. 21 3. After review of those submissions, the Court will issue a supplemental Order 22 regarding the award of attorney’s fees. 23 24 DATED this 12th day of February 2015. 25 A 26 RICARDO S. MARTINEZ UNITED STATES DISTRICT JUDGE 27 28 ORDER PAGE - 10
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