Gwen v. Unknown Parties

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Gerald Vaughn Gwen, No. CV-21-02211-PHX-JAT

10 Plaintiff, ORDER

11 v.

12 Unknown Parties, et al.,

13 Defendants. 14 15 Pending before the Court is the Report and Recommendation (“R&R”) of the 16 Magistrate Judge recommending dismissal of Defendants without prejudice due to Plaintiff 17 Gerald Vaughn Gwen’s failure to comply with the Court’s Order compelling discovery. 18 (Doc. 91). Plaintiff filed an Objection to the Report and Recommendation of the Magistrate 19 Judge (“Objection”), (Doc. 92), Defendants filed a Response to Plaintiff’s Objection 20 (“Response”), (Doc. 93), and Plaintiff replied, (Doc. 94). The Court now rules. 21 I. BACKGROUND 22 As Plaintiff states no objection to the procedural background laid out in the R&R, 23 the Court adopts it as set forth therein: Plaintiff commenced this action on December 27, 2021 by filing his 24 original Complaint (Doc. 1). That pleading was dismissed for failure to state 25 a claim with leave to amend (Order 2/16/22, Doc. 6), as was Plaintiff’s First Amended Complaint (Doc. 8) (Order 4/5/22, Doc. 9). Plaintiff filed his 26 Second Amended Complaint on June 13, 2022 (Doc. 15). Answers were 27 ordered from Defendants Caholico and Becky P to Plaintiff’s claims regarding failure to provide medical care, dating from July and November 28 2020. The remaining claims and defendants were dismissed. (Order 7/27/22, 1 Doc. 16.) Defendants filed their Answers (Docs. 26, 27) on November 14, 2022. A Scheduling Order (Doc. 31) was issued November 18, 2022, which, 2 inter alia, required the parties to serve by December 27, 2022 initial 3 disclosure statements under Fed. R. Civ. P. 26(a), notwithstanding the otherwise applicable exemption. The deadline for, inter alia, initial 4 disclosures [was] extended to March 28, 2023. (Order 12/21/22, Doc. 36 5 at 2.) Other deadlines in the schedule were subsequently amended. (Order 8/9/23, Doc. 77.) 6 On February 16, 2023, Defendants served Plaintiff with their 7 discovery requests, including a First Request for Production of Documents and First Set of Non-Uniform Interrogatories. Plaintiff’s response to each set 8 of requests was to argue that he was exempt from discovery pursuant to “Rule 9 26(B)(iv),” presumably a reference to Rule 26(b)(1)(B)(iv) which exempts pro se prisoner cases from the Rule 26(a) initial disclosures requirement. (See 10 Motion, Doc. 83, Exh. 1 (RFP response) and Exh. 2 (interrog. Response).) 11 On April 14, 2023 Defendants filed a Motion to Compel (Doc. 49) seeking an order compelling Plaintiff to serve his Rule 26(a) initial disclosure 12 statement and to respond to Non-Uniform Interrogatories and Requests for 13 Production of Documents. Plaintiff responded (Doc. 55) that, as a pro se prisoner he was exempt from initial disclosures, and that Defendants are 14 improperly seeking his “defense” or evidence he may use at trial. He argued disclosing the information would deny him due process. The Court granted 15 the Motion to Compel, and gave Plaintiff through May 22, 2023 to “serve on 16 Defendants his Rule 26(a) initial disclosures and responses to the Non- Uniform Interrogatories and Requests for Production of Documents 17 propounded on him by Defendants.” (Order 5/11/23, Doc. 58 (emphasis 18 added)). Plaintiff filed an appeal (Doc. 64) of that Order arguing the exemption and unfairness in the proceedings. The Court denied that appeal, 19 finding the order for initial disclosures was permissible, and no unfairness to 20 Plaintiff. (Order 9/25/23, Doc. 89 at 5.) Plaintiff served his Initial Disclosure Statement on May 22, 2023. 21 (Motion, Doc, 83 at Exh. 3 (Init. Discl.).) Plaintiff disclosed the identity of 22 himself and Defendants as parties with discoverable information, and listed three other individuals as anticipated witnesses. Otherwise[,] he identified no 23 documents and referenced Defendants as already possessing the relevant 24 information, and that he had provided a medical records release. At the same time he served discovery responses to the Requests for Production (id. at 25 Exh. 4) All of Plaintiff’s responses were effectively objections, with the 26 exception of RFP 1 (to which Plaintiff asserted his provision of a medical record release (Doc. 83-4 at 2)[)] and Interrogatory No. 8 (to which Plaintiff 27 raised an objection but asserted “there are at this time no computation for witnesses requiring damages at this [sic] times” (Doc. 83-5 at 4)). 28 In the meantime, Defendants sought an award of expenses, including 1 attorneys fees, of $533.00 in bringing the motion to compel. (Doc. 59.) Plaintiff did not respond, and the Court granted the motion and ordered 2 Plaintiff to pay Defendants the $533.00 in expenses. (Order 6/16/23, Doc. 3 70.) On July 14, 2023, Defendants filed a Motion to Enforce Order 4 Granting Motion to Compel (Doc. 72). The Court construed the filing as a 5 (first) Motion for Sanctions, and directed a response. Plaintiff responded (Doc. 74), raising various procedural arguments, and asserting that he had 6 served responses to the discovery ordered (which primarily consisted of 7 objections), and argued that he had the right to mount objections to the requests in his responses. Based on the failure to confer argued by Plaintiff, 8 the Court denied the motion without prejudice, but clarified that Plaintiff had 9 waived any objections to the discovery requests by failure to argue them in response to the Motion to Compel. (Order 8/9/23, Doc. 77.) Plaintiff 10 appealed (Doc. 79) that order to District Judge Teilborg. The appeal was 11 denied, with the Court again advising Plaintiff “Plaintiff waived his new arguments by not raising them in his response to the original Motion to 12 Compel.” (Order 10/13/23, Doc. 90 at 3.) . . . 13 On September 1, 2023 Defendants filed the instant Motion for Sanctions (Doc. 83), avowing that: defense counsel arranged for and 14 conducted a conference call with Plaintiff on August 18, 2023; Plaintiff complained he did not have sufficient notice to gather documents to discuss 15 the discovery disputes, but indicated he would not be supplementing his 16 earlier responses, and that he would not withdraw his objections. (Id. at Exh. 6.) Defendants argue Plaintiff has proceeded in bad faith and willfully 17 refused to comply with the Court’s orders even after an award of expenses, 18 and instruction from the Court that his objections were waived. Defendants seek sanctions “up to and including the dismissal of Plaintiff’s Complaint.” 19 (Doc. 91 at 1–4). Ultimately, the Magistrate Judge determined in the R&R (1) that 20 Defendants “adequately conferred with Plaintiff in good faith” prior to bringing the 21 sanctions motion; and (2) Plaintiff failed to comply with the Court’s order to serve on 22 Defendants his Rule 26(a) initial disclosures and responses to the non-uniform 23 interrogatories and requests for production of documents and instead served largely only 24 objections. 25 The Magistrate Judge explained that it was not necessary for Plaintiff to be given 26 adequate notice to prepare for the conference with Defendants because “[t]he only issue to 27 be resolved was whether and when Plaintiff would comply with the Court’s order.” (Id. 28 at 5). Because Plaintiff indicated that he did not intend to comply with the Court’s order 1 by providing substantive responses to the discovery requests, further discussions were 2 pointless, and Defendants had made a good faith effort to meet and confer with Plaintiff. 3 (Id.) The Magistrate Judge also responded to Plaintiff’s assertion that he has complied with 4 the Court’s order for discovery by stating that the Court already instructed in its August 9, 5 2023, Order—and reaffirmed in an Order on October 13, 2023—that Plaintiff’s objections 6 are not responses to the ordered discovery and any objections have been waived because 7 they should have been raised at the motion to compel stage of proceedings. (Id. at 5–6). 8 II. STANDARD OF REVIEW 9 This Court “may accept, reject, or modify, in whole or in part, the findings or 10 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The district judge 11 must review the findings and recommendations of the Magistrate Judge de novo only if 12 there is an objection from one or both parties, not otherwise. United States v. Reyna-Tapia, 13 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc); Schmidt v. Johnstone, 263 F. Supp. 2d 14 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that de novo 15 review of factual and legal issues is required if objections are made, ‘but not otherwise.’”); 16 Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th 17 Cir. 2009) (the district court “must review de novo the portions of the [Magistrate Judge’s] 18 recommendations to which the parties object.”). District courts are not obligated to perform 19 any review of any issue to which no party has objected. Thomas v. Arn, 474 U.S. 140, 149 20 (1985); see also 28 U.S.C. § 636(b)(1) (“the court shall make a de novo determination of 21 those portions of the [report and recommendation] to which objection is made.”). 22 III. DISCUSSION 23 The Court will now address Plaintiff’s Objection to the R&R of the Magistrate 24 Judge. 25 A. Objection 1 26 First, in his Objection, Plaintiff asserts that the “2003 Amendment to rule 26 27 Advisory Note, provides ‘[i]ncluding prisoner’s civil rights cases such as this one, from 28 requirement of discovery plans, disclosures, etc…’ The word excreta [sic] is used to 1 emphasize or highlight the various discovery devices such as interrogatories . . . .” (Doc. 2 92 at 3). 3 The Court has been unable to identify the source of Plaintiff’s quotation. There was 4 no 2003 amendment to Rule 26 or any accompanying advisory note. Plaintiff appears to 5 continue to argue that the Magistrate Judge and this Court have misinterpreted Rule 26 and 6 the Advisory Committee Note to the 2000 Amendments to Rule 26, which states that even 7 in a case excluded by subdivision (a)(1)(B) “the court can order exchange of similar 8 information in managing the action under Rule 16.” This Court has already rejected 9 Plaintiff’s argument. (See Doc. 89 at 4). Plaintiff does not reference any “well-settled 10 federal court rules,” (see id.), that supersede the Court’s interpretation of Rule 26, and the 11 Court has not identified any. The Magistrate Judge properly used Rule 16 to require 12 Plaintiff to provide initial and continuing disclosure as required by rule 26(a) and (e) in the 13 Court’s Scheduling Order. (Doc. 31 at 3). 14 B. Objection 2 15 Second, Plaintiff states that the “[M]agistrate [J]udge’s conduct has deprived him 16 of his right to fundamental fairness” because “twice the [M]agistrate [J]udge denied 17 plaintiff’s motion for [an] order compelling that defendants comply with plaintiff’s 18 discovery requests. . . . but failed to apply [the] same standard to defendants[’] motion to 19 compel (doc 49) which was granted without compliance with rule 37.1(a) . . . .” (Doc. 92 20 at 4). 21 The Court has reviewed the three motions to compel and the accompanying 22 responsive orders by the Magistrate Judge referred to by Plaintiff in his Objection. Plaintiff 23 is correct in stating that Defendants’ Motion to Compel, (Doc. 49), does not fully comply 24 with Local Rule 37.1(a). Defendants did not list the non-uniform interrogatory questions 25 they complain Plaintiff did not comply with in distinct, numbered paragraphs as required 26 by the rule. However, Local Rule 37.1(b) provides an exception to compliance “where 27 there has been a complete and total failure to respond to a discovery request or set of 28 discovery requests.” Defendants did provide the response Plaintiff gave to the requested 1 discovery in which he is entirely unresponsive except to state that he is exempt from 2 interrogatories and initial disclosures under Rule 26(B)(iv). (See Doc. 49, Exh. 2). 3 However, Plaintiff had already been informed that he is not exempt from initial disclosures 4 or discovery in the Court’s Scheduling Order: Application of Disclosure and Pretrial Management Rules 5 - Rule 26(a)(1)(B), Federal Rules of Civil Procedure exempts various 6 proceedings, including prisoner’s civil rights cases such as this one, from the requirements of discovery plans, disclosures, etc. However, as noted in the 7 Advisory Committee Note to the 2000 Amendments to Rule 26, “[e]ven in a 8 case excluded by subdivision (a)(1)(B) . . . the court can order exchange of similar information in managing the action under Rule 16.” The Advisory 9 Committee Note also relates that the exemptions were created because “there 10 is likely to be little or no discovery in most such cases.” The Court finds that there is a substantial likelihood that, in light of the nature of Plaintiff’s claims 11 for medical care and resulting injuries, there will be significant discovery 12 between the parties. The Court also finds that continuing to require the parties to comply with the provisions of Rule 26(a) will benefit the parties to this 13 action by allowing the early identification of factual, legal, discovery, and 14 evidentiary issues. . . . 1. DISCLOSURES REQUIRED: Notwithstanding the exemptions 15 otherwise applicable, the parties will provide initial and continuing disclosure as required by Rule 26(a) and (e), Federal Rules of Civil 16 Procedure. 17 * * * 2.1 Initial Disclosures: The parties must serve initial disclosures pursuant to 18 Rule 26(a), Federal Rules of Civil Procedure by December 27, 2022. 19 (Doc. 31 at 1–3). Plaintiff’s revived argument that he did not have to comply with 20 discovery after that issue had already been resolved by the Court’s Scheduling Order 21 combined with the lack of any other response to Defendants’ discovery request constituted 22 a “complete and total failure to respond” to Defendants’ discovery request. Thus, 23 Defendants’ lack of compliance with Local Rule 37.1(a) falls under the Rule 37.1(b) 24 exception. 25 In contrast, Plaintiff’s Motion to Compel, (Doc. 56), did not identify the specific 26 discovery requests that Plaintiff wished to compel a response, and made no argument as to 27 why Defendants’ responses were deficient. Plaintiff’s motion clearly did not comply with 28 Rule 37.1(a) and did not meet the exception in 37.1(b) because Defendants did respond, 1 Plaintiff just felt their response was insufficient. Likewise, Plaintiff’s second Motion to 2 Compel, (Doc. 62), contained some description of the discovery Plaintiff wished to compel 3 but did not include Defendants’ actual response to Plaintiff’s request for production and 4 instead included Defendants’ “Rule 26.1 Supplemental Disclosure Statement” identifying 5 certain redacted job descriptions as relevant. (See Doc. 56 at 7–13). Like Plaintiff’s first 6 motion to compel, this motion did not comply with Local Rule 37.1(a) and does not fall 7 under the 37.1(b) exception because there’s no indication that Defendants failed to respond 8 to Plaintiff’s discovery request. Thus, the Court finds that the Magistrate Judge’s rulings 9 did not deprive “him of his right to fundamental fairness” because there is no indication of 10 an uneven application of the rules. 11 Plaintiff also argues in his second objection that the Court’s lack of a Rule 11 12 sanction for Defendants filing their Motion to Compel using an unauthorized signature in 13 violation of Local Rule 5.5(g) amounted to bias in favor of Defendants. (Doc. 92 at 5–6). 14 This Court already addressed this issue in a previous Order. (See Doc. 89 (finding no clear 15 errors of fact or anything contrary to law in Magistrate Judge’s Order denying Rule 11 16 sanctions)). An attorney’s use of another person’s ECF log-in credentials has nothing to do 17 with any of the claims or defenses of any of the parties and thus the Magistrate Judge had 18 authority to rule on the Rule 11 sanctions. Maisonville v. F2 America, Inc., 902 F.2d 746, 19 747 (9th Cir. 1990). Plaintiff pointed to no violations of Rule 11(b) and did not provide 20 Defendants with the required twenty-one days to correct any Rule 11 error. Thus, a denial 21 of Rule 11 sanctions was appropriate, and the Magistrate Judge did not err. 22 Finally, Plaintiff asserts in his second objection that the Magistrate Judge erred in 23 determining that Defendants “complied with [the] mandatory requirement to confer before 24 filing [their] motion to compel” because they did not give him adequate time to prepare for 25 the meeting. (Doc. 92 at 6). Having reviewed Defendant’s Motion to Compel and the 26 accompanying exhibits, the Court agrees with the Magistrate Judge that Plaintiff did not 27 point to what preparation was necessary for the conference since the only issue to be 28 resolved was whether Plaintiff would comply with the Court’s Order to provide the 1 requested discovery. Plaintiff continues to assert that he is not subject to interrogatories 2 because he is exempt under Rule 26, and thus the Court accepts the sworn statement of 3 Defendants’ attorney stating that Plaintiff told Defendants at their conference that he would 4 not comply with the Court’s Order to produce the requested discovery. (See Doc. 83, Exh. 5 6). Because Plaintiff refused to comply with the Court’s order—or asserted that he already 6 had done so—the Court agrees with the Magistrate Judge that further discussions were 7 pointless, and Defendants had conferred in good faith. 8 C. Objection 3 9 Third, and lastly, Plaintiff objects to the R&R “on the ground that he did, in all 10 respects, comply with [the] [C]ourt [O]rder to provide initial disclosure and respond to 11 discovery requests. (Doc. 92 at 7). Plaintiff seems to believe that he was only ordered to 12 produce initial disclosures in the Court’s Order, (Doc. 58), granting Defendants’ Motion to 13 Compel. However, in that Order, the Magistrate Judge specifically stated “[e]ven if the 14 exemption for initial disclosure was being applied in this case, such exemption would apply 15 only to “initial disclosure” mandated by Rule 26(a)(1). Fed. R. Civ. P. 26(a)(1)(B). That 16 Rule does not provide for exemptions from responding to discovery.” (Doc. 58 at 2). This 17 statement makes it clear that Plaintiff was not exempt from responding to interrogatories— 18 a key part of discovery in a case. Plaintiff’s compelled responses are objections. (See Doc. 19 83-5). As stated in this Court’s previous Order, (Doc. 90), the Magistrate Judge properly 20 ruled that Plaintiff did not timely raise objections to the discovery requests. See Richmark 21 Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992) (“It is well 22 established that a failure to object to discovery requests within the time required constitutes 23 a waiver of any objection.”); Fed. R. Civ. P. 33(b)(4) (“The grounds for objecting to an 24 interrogatory must be stated with specificity. Any ground not stated in a timely objection 25 is waived unless the court, for good cause, excuses the failure.”). Plaintiff did not raise his 26 objections in his response to the original Motion to Compel and thus they were waived. 27 Plaintiff has yet to respond to Defendants’ discovery requests and has not given good cause 28 for his failure. IV. CONCLUSION 2 In conclusion, the Court finds the Magistrate Judge committed no error. Plaintiff || has failed to comply with discovery requests for eight months and has continually ignored 4|| the orders of the Magistrate Judge and this Court. Thus, having reviewed the record as it || relates to Plaintiff's Objection to the Magistrate Judge’s R&R, the Court accepts the R&R 6 || in its entirety. 7 Based on the foregoing, 8 IT IS ORDERED that Plaintiff Gerald Vaughn Gwen’s “Objection to the Report |; and Recommendation” (Doc. 92) is OVERRULED. 10 IT IS FURTHER ORDERED that the Report and Recommendation of Magistrate 11 || Judge James F. Metcalf (Doc. 91) is ACCEPTED and ADOPTED. 12 IT IS FURTHER ORDERED that Defendants’ Motion for Sanctions (Doc. 83) is GRANTED. 14 IT IS FURTHER ORDERED dismissing Defendants Leon Caholico and Becky 15 || P. without prejudice. 16 IT IS FURTHER ORDERED that, because Defendants Caholico and Becky P. || were the last remaining Defendants, the Clerk of the Court shall enter judgment against 18 || Plaintiff by dismissing Defendants Leon Caholico, Becky P., Yavapai County Jail Medical □□ Providers (Doc. 16), and Jail Commander Captain Newnun (Doc. 16) consistent with this 20 || Order and Doc. 16. 21 Dated this 23rd day of January, 2024. 22 23 i C 24 95 James A. Teil Org Senior United States District Judge 26 27 28

-9-