6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT TACOMA
8 GILBERT MICHAEL GREENWOOD,
9 Plaintiff, Case No. C21-5874-JHC-MLP
10 v. ORDER DENYING PLAINTIFF’S MOTIONS TO COMPEL DISCOVERY 11 PIERCE COUNTY, et al., AND TO DEFER CONSIDERATION OF DEFENDANT’S SUMMARY JUDGMENT 12 Defendants. MOTION
14 I. INTRODUCTION 15 This is a prisoner civil rights action brought under 42 U.S.C. § 1983. The claims asserted 16 in this action arise out of Plaintiff’s pretrial detention at the Pierce County Jail (“the Jail”) in 17 2018-19 and relate to the adequacy of the medical care he received while confined at the Jail. 18 The Jail was dismissed from this case (dkt. # 37); the only remaining defendant in this case is 19 Defendant Miguel Balderrama. This matter is now before the Court for consideration of 20 Plaintiff’s motion to compel discovery (dkt. # 57) and his motion to defer consideration of 21 Defendant’s pending summary judgment motion (dkt. # 55). Defendant has filed a response 22 opposing Plaintiff’s motion to compel (dkt. 23
ORDER DENYING PLAINTIFF’S MOTIONS
TO COMPEL DISCOVERY AND TO DEFER 1 # 63), but has not responded to Plaintiff’s motion to defer consideration of his motion for 2 summary judgment. The Court addresses the pending motions below. 3 II. DISCUSSION
4 A. Motion to Compel 5 Plaintiff, in his motion to compel, asks that the Court order Defendant to produce 6 documents requested during discovery that Plaintiff claims Defendant improperly withheld. (See 7 dkt. # 57.) In particular, Plaintiff asserts that Defendant withheld portions of Plaintiff’s medical 8 records and that Defendant failed to produce documentation regarding the medical 9 procedures/protocols in place at the Pierce County Jail in 2018. (See id. at 1-6.) Plaintiff also 10 complains that the medical records that were produced were not in chronological order as he had 11 requested, and he asserts that Defendant’s alleged failure to properly assemble the documents 12 was intended “to create delay and confusion.” (See id. at 5.) 13 Defendant argues in his response to Plaintiff’s motion that the motion is deficient because
14 Plaintiff made no effort to engage in a discovery conference prior to filing his motion. (See dkt. 15 # 63 at 2.) Defendant further argues that Plaintiff has been provided complete responses to the 16 requested discovery. (Id. at 2.) Plaintiff did not file a reply brief addressing Defendant’s 17 arguments in opposition to his motion to compel. 18 Rule 37(a)(1) of the Federal Rules of Civil Procedure requires that a party seeking to 19 compel discovery include in the motion a certification that the moving party “has in good faith 20 conferred or attempted to confer” with the party failing to make disclosures. See Fed. R. Civ. P. 21 37(a)(1). Local Civil Rule (“LCR”) 37(a)(1) likewise provides that “[a]ny motion for an order 22 compelling disclosure or discovery must include a certification, in the motion or in a declaration 23
TO COMPEL DISCOVERY AND TO DEFER 1 or affidavit, that the movant has in good faith conferred or attempted to confer with the person or 2 party failing to make disclosure or discovery in an effort to resolve the dispute without court 3 action.” The rule further provides that “a good faith effort to confer with a party or person not
4 making a disclosure or discovery requires a face-to-face meeting or a telephone conference.” 5 LCR 37(a)(1). 6 Plaintiff submitted with his motion a declaration in which he states that the method by 7 which he is able to communicate is restricted to written communications, and he suggests that he 8 satisfied the requirement that he make a good faith effort to meet and confer prior to filing his 9 motion. (See dkt. # 58 at 1-4.) Even assuming written communications were an acceptable means 10 of satisfying the meet and confer requirement, the efforts to communicate with Defendant’s 11 counsel that Plaintiff describes in his declaration are insufficient to satisfy the good faith 12 requirement. So far as this Court can discern from Plaintiff’s declaration, when his first set of 13 discovery requests did not result in the production of all requested documents, he simply
14 reiterated his requests in a second set of requests for production. (See id. at 2-4.) Filing multiple 15 discovery requests does not constitute compliance with the LCR 37 meet and confer requirement. 16 Nothing in the record demonstrates that Plaintiff tried to contact Defendant’s counsel, by any 17 method, to specifically discuss his concerns regarding Defendant’s responses to his discovery 18 requests. Plaintiff’s failure to do so is fatal to his motion to compel. 19 The Court also observes that Defendant, in his response to Plaintiff’s motion to compel, 20 represents that Plaintiff has been provided complete responses to the referenced discovery, 21 despite the fact that many of Plaintiff’s discovery requests were objectionable. (See dkt. # 63 at 22 2.) Plaintiff’s mere submission of the motion to compel suggests that he does not believe this to 23
TO COMPEL DISCOVERY AND TO DEFER 1 be the case, but the fact that Plaintiff may believe he received incomplete discovery does not 2 make it so. Notably, these are the types of disputes and/or misunderstandings that can typically 3 be resolved by way of the discovery conference mandated by Fed. R. Civ. P. 37(a)(1) and
4 LCR37(a)(1), the step Plaintiff did not complete. For these reasons, Plaintiff’s motion to compel 5 must be denied. 6 B. Motion to Defer Ruling on Defendant’s Summary Judgement Motion 7 Plaintiff, in his motion to defer judgment, asks that the Court defer consideration of 8 Defendant’s pending motion for summary judgment, under Fed. R. Civ. P. 56(d), on the grounds 9 that Defendant’s motion is premature and additional discovery is necessary to oppose summary 10 judgment. (See dkt. # 55.) Plaintiff first explains that through discovery directed to the lone 11 Defendant in this action, Dr. Balderrama, he determined that NaphCare, a medical service 12 company contracted to provide medical services at the Jail, was a potential defendant in this 13 case. (See id. at 1-2.) Plaintiff further explains that if he is permitted to add NaphCare as a
14 defendant, as he recently sought to do, additional discovery will be required. (Id. at 2.) 15 Plaintiff goes on to assert that Defendant’s motion for summary judgment is factually 16 misleading and that additional discovery is required “to debunk the many misrepresentations 17 made in Defendant’s motion[.]” (Dkt. # 55 at 2.) Plaintiff next identifies various ways in which 18 he believes Defendant’s motion for summary judgment is “wrong on the merits.” (Id. at 2-3.) 19 Finally, Plaintiff asserts that a substantial portion of Defendant’s motion for summary judgment 20 is based on “NaphCare information,” and he argues that he “has not had opportunity to acquire 21 discovery from NaphCare or complete discovery from Defendants.” (Id. at 3.) 22 23
TO COMPEL DISCOVERY AND TO DEFER 1 Rule 56(d) “provides a device for litigants to avoid summary judgment when they have 2 not had sufficient time to develop affirmative evidence.” United States v. Kitsap Physicians 3 Serv., 314 F.3d 995, 1000 (9th Cir. 2002).
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6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT TACOMA
8 GILBERT MICHAEL GREENWOOD,
9 Plaintiff, Case No. C21-5874-JHC-MLP
10 v. ORDER DENYING PLAINTIFF’S MOTIONS TO COMPEL DISCOVERY 11 PIERCE COUNTY, et al., AND TO DEFER CONSIDERATION OF DEFENDANT’S SUMMARY JUDGMENT 12 Defendants. MOTION
14 I. INTRODUCTION 15 This is a prisoner civil rights action brought under 42 U.S.C. § 1983. The claims asserted 16 in this action arise out of Plaintiff’s pretrial detention at the Pierce County Jail (“the Jail”) in 17 2018-19 and relate to the adequacy of the medical care he received while confined at the Jail. 18 The Jail was dismissed from this case (dkt. # 37); the only remaining defendant in this case is 19 Defendant Miguel Balderrama. This matter is now before the Court for consideration of 20 Plaintiff’s motion to compel discovery (dkt. # 57) and his motion to defer consideration of 21 Defendant’s pending summary judgment motion (dkt. # 55). Defendant has filed a response 22 opposing Plaintiff’s motion to compel (dkt. 23
ORDER DENYING PLAINTIFF’S MOTIONS
TO COMPEL DISCOVERY AND TO DEFER 1 # 63), but has not responded to Plaintiff’s motion to defer consideration of his motion for 2 summary judgment. The Court addresses the pending motions below. 3 II. DISCUSSION
4 A. Motion to Compel 5 Plaintiff, in his motion to compel, asks that the Court order Defendant to produce 6 documents requested during discovery that Plaintiff claims Defendant improperly withheld. (See 7 dkt. # 57.) In particular, Plaintiff asserts that Defendant withheld portions of Plaintiff’s medical 8 records and that Defendant failed to produce documentation regarding the medical 9 procedures/protocols in place at the Pierce County Jail in 2018. (See id. at 1-6.) Plaintiff also 10 complains that the medical records that were produced were not in chronological order as he had 11 requested, and he asserts that Defendant’s alleged failure to properly assemble the documents 12 was intended “to create delay and confusion.” (See id. at 5.) 13 Defendant argues in his response to Plaintiff’s motion that the motion is deficient because
14 Plaintiff made no effort to engage in a discovery conference prior to filing his motion. (See dkt. 15 # 63 at 2.) Defendant further argues that Plaintiff has been provided complete responses to the 16 requested discovery. (Id. at 2.) Plaintiff did not file a reply brief addressing Defendant’s 17 arguments in opposition to his motion to compel. 18 Rule 37(a)(1) of the Federal Rules of Civil Procedure requires that a party seeking to 19 compel discovery include in the motion a certification that the moving party “has in good faith 20 conferred or attempted to confer” with the party failing to make disclosures. See Fed. R. Civ. P. 21 37(a)(1). Local Civil Rule (“LCR”) 37(a)(1) likewise provides that “[a]ny motion for an order 22 compelling disclosure or discovery must include a certification, in the motion or in a declaration 23
TO COMPEL DISCOVERY AND TO DEFER 1 or affidavit, that the movant has in good faith conferred or attempted to confer with the person or 2 party failing to make disclosure or discovery in an effort to resolve the dispute without court 3 action.” The rule further provides that “a good faith effort to confer with a party or person not
4 making a disclosure or discovery requires a face-to-face meeting or a telephone conference.” 5 LCR 37(a)(1). 6 Plaintiff submitted with his motion a declaration in which he states that the method by 7 which he is able to communicate is restricted to written communications, and he suggests that he 8 satisfied the requirement that he make a good faith effort to meet and confer prior to filing his 9 motion. (See dkt. # 58 at 1-4.) Even assuming written communications were an acceptable means 10 of satisfying the meet and confer requirement, the efforts to communicate with Defendant’s 11 counsel that Plaintiff describes in his declaration are insufficient to satisfy the good faith 12 requirement. So far as this Court can discern from Plaintiff’s declaration, when his first set of 13 discovery requests did not result in the production of all requested documents, he simply
14 reiterated his requests in a second set of requests for production. (See id. at 2-4.) Filing multiple 15 discovery requests does not constitute compliance with the LCR 37 meet and confer requirement. 16 Nothing in the record demonstrates that Plaintiff tried to contact Defendant’s counsel, by any 17 method, to specifically discuss his concerns regarding Defendant’s responses to his discovery 18 requests. Plaintiff’s failure to do so is fatal to his motion to compel. 19 The Court also observes that Defendant, in his response to Plaintiff’s motion to compel, 20 represents that Plaintiff has been provided complete responses to the referenced discovery, 21 despite the fact that many of Plaintiff’s discovery requests were objectionable. (See dkt. # 63 at 22 2.) Plaintiff’s mere submission of the motion to compel suggests that he does not believe this to 23
TO COMPEL DISCOVERY AND TO DEFER 1 be the case, but the fact that Plaintiff may believe he received incomplete discovery does not 2 make it so. Notably, these are the types of disputes and/or misunderstandings that can typically 3 be resolved by way of the discovery conference mandated by Fed. R. Civ. P. 37(a)(1) and
4 LCR37(a)(1), the step Plaintiff did not complete. For these reasons, Plaintiff’s motion to compel 5 must be denied. 6 B. Motion to Defer Ruling on Defendant’s Summary Judgement Motion 7 Plaintiff, in his motion to defer judgment, asks that the Court defer consideration of 8 Defendant’s pending motion for summary judgment, under Fed. R. Civ. P. 56(d), on the grounds 9 that Defendant’s motion is premature and additional discovery is necessary to oppose summary 10 judgment. (See dkt. # 55.) Plaintiff first explains that through discovery directed to the lone 11 Defendant in this action, Dr. Balderrama, he determined that NaphCare, a medical service 12 company contracted to provide medical services at the Jail, was a potential defendant in this 13 case. (See id. at 1-2.) Plaintiff further explains that if he is permitted to add NaphCare as a
14 defendant, as he recently sought to do, additional discovery will be required. (Id. at 2.) 15 Plaintiff goes on to assert that Defendant’s motion for summary judgment is factually 16 misleading and that additional discovery is required “to debunk the many misrepresentations 17 made in Defendant’s motion[.]” (Dkt. # 55 at 2.) Plaintiff next identifies various ways in which 18 he believes Defendant’s motion for summary judgment is “wrong on the merits.” (Id. at 2-3.) 19 Finally, Plaintiff asserts that a substantial portion of Defendant’s motion for summary judgment 20 is based on “NaphCare information,” and he argues that he “has not had opportunity to acquire 21 discovery from NaphCare or complete discovery from Defendants.” (Id. at 3.) 22 23
TO COMPEL DISCOVERY AND TO DEFER 1 Rule 56(d) “provides a device for litigants to avoid summary judgment when they have 2 not had sufficient time to develop affirmative evidence.” United States v. Kitsap Physicians 3 Serv., 314 F.3d 995, 1000 (9th Cir. 2002). Under Rule 56(d), if the nonmoving party “shows by
4 affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its 5 opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain 6 affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” Fed. R. 7 Civ. P. 56(d). 8 A party requesting a continuance, denial, or other order under Fed. R. Civ. P. 56(d), must 9 show: (1) it has set forth in affidavit form the specific facts it hopes to elicit from further 10 discovery; (2) the facts sought exist; and (3) the sought-after facts are essential to oppose 11 summary judgment. See Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 12 F.3d 822, 827 (9th Cir. 2008) (citing California ex rel. Cal. Dep’t of Toxic Substances Control v. 13 Campbell, 138 F.3d 772, 779 (9th Cir. 1998)). Failure to comply with these requirements “is a
14 proper ground for denying discovery and proceeding to summary judgment.” Id. (quoting Brae 15 Transp., Inc. v. Coopers & Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986)). 16 Plaintiff has submitted in support of his motion to defer consideration of Defendant’s 17 summary judgment motion the declaration required by Rule 56(d). (See dkt. # 56.) However, 18 Plaintiff’s declaration does not establish that he is entitled to a continuance of Defendant’s 19 motion. Plaintiff asserts in his declaration that Defendant’s motion for summary judgment relies 20 on selective events, presented out of context, “to promote a factually misleading picture of events 21 to suggest Plaintiff suffered no civil rights violations.” (Id. at 1.) Plaintiff claims that other facts 22 exist that “are necessary to establish a correct order of factual events that demonstrate civil rights 23
TO COMPEL DISCOVERY AND TO DEFER 1 violations.” (Id.) Plaintiff suggests that such facts can be found in materials that Defendant 2 intentionally withheld during discovery and in records possessed by NaphCare. (See id. at 1-3.) 3 The Court first notes that Defendant filed his summary judgment motion on May 11,
4 2023, which was the deadline established by the Court for such submissions. (See dkt. ## 45, 5 52.) All discovery was to have been completed well in advance of that deadline and, thus, it 6 cannot be said that Defendant’s motion was premature. (See id.) The Court next notes that it 7 recently rejected Plaintiff’s attempt to add NaphCare and three NaphCare employees as 8 Defendants to this action, along with Plaintiff’s associated request to extend the discovery 9 deadline. (See dkt. # 59.) Thus, to the extent Plaintiff bases his motion to continue Defendant’s 10 summary judgment motion on his need to obtain discovery from anticipated new defendants, his 11 motion identifies no viable basis for relief. 12 To the extent Plaintiff bases his motion on his suspicion that Defendant Balderamma 13 intentionally withheld discoverable material and/or relied upon NaphCare information that he did
14 not have access to, his motion likewise identifies no viable basis for relief. Plaintiff makes no 15 showing that Defendant Balderamma withheld discoverable material, nor does he make any 16 showing that additional facts exist relevant to his claims against Defendant Balderamma. 17 Plaintiff’s allegations in this regard are vague, conclusory, and insufficient to entitle him to the 18 relief he seeks. 19 The Court also observes that Plaintiff’s NaphCare medical records appear to have been 20 produced by Defendant Balderamma in response to Plaintiff’s discovery requests, and it is those 21 records that Defendant relies upon to support his summary judgment motion. (See dkt. # 53, Exs. 22 B-C.) Plaintiff’s suggestion that Defendant relied upon records to support his summary judgment 23
TO COMPEL DISCOVERY AND TO DEFER 1 motion that Plaintiff did not have access to is belied by the record. Finally, the Court observes 2 that after Plaintiff filed his motion to defer consideration of Defendant’s summary judgment 3 motion, he filed his response to Defendant’s motion, together with supporting exhibits,
4 suggesting that Plaintiff was, indeed, able to respond Defendant’s motion without additional 5 delay. For these reasons, the Court concludes that Plaintiff has not met the requirements under 6 Rule 56(d) to delay consideration of Defendant’s summary judgment motion and, thus, 7 Plaintiff’s request is denied. 8 3. Defendant’s Summary Judgment Motion 9 Defendant filed his summary judgment motion on May 11, 2023, and noted the motion 10 for consideration on June 2, 2023. (Dkt. # 52.) As noted above, Plaintiff filed a response to 11 Defendant’s summary judgment motion together with supporting materials, but the response was 12 not filed until June 2, 2023, shortly after Plaintiff filed his motions to compel discovery and to 13 delay consideration of Defendant’s summary judgment motion. (See dkt. #60.) Defendant filed a
14 reply brief in support of his summary judgment motion on June 2, 2023, and noted therein that 15 Plaintiff had not formally responded to his motion nor had he submitted any evidentiary material. 16 (See dkt. # 62.) 17 It is apparent that Defendant did not see Plaintiff’s response prior to filing his reply brief. 18 While Plaintiff’s response to Defendant’s motion was unquestionably late, it was not egregiously 19 so. Plaintiff signed his responsive brief on May 31, 2023, two days after the filing deadline, and 20 the document was electronically filed two days after that. (Dkt. # 60 at 15.) Under these 21 circumstances, the Court deems it appropriate to accept Plaintiff’s late filed brief and provide 22 Defendant an opportunity to file a supplemental reply addressing the arguments raised by 23
TO COMPEL DISCOVERY AND TO DEFER 1 Plaintiff in his response. Accordingly, the Court will set forth below a deadline by which 2 Defendant may submit a supplemental reply and will re-note Defendant’s summary judgment 3 motion.
4 III. CONCLUSION 5 Based on the foregoing, the Court hereby ORDERS as follows: 6 (1) Plaintiff’s motion to compel discovery (dkt. # 57), and his motion to defer 7 consideration of Defendant’s pending summary judgment motion (dkt. # 55), are DENIED. 8 (2) Defendant may file a supplemental reply to Plaintiff’s response to Defendant’s 9 summary judgment motion not later than July 7, 2023, and Defendant’s motion for summary 10 judgment (dkt. # 52) is RENOTED on the Court’s calendar for consideration on the same date. 11 (3) The Clerk is directed to send copies of this Order to Plaintiff, to counsel for 12 Defendant, and to the Honorable John H. Chun. 13 Dated this 29th day of June, 2023.
14 A 15
MICHELLE L. PETERSON 16 United States Magistrate Judge
17 18 19 20 21 22 23
TO COMPEL DISCOVERY AND TO DEFER