1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JUAN CARLOS GARCIA AYALA, No. 2:21-cv-2186-DJC-CKD P 12 Plaintiff, 13 v. ORDER VACATING FINDINGS AND RECOMMENDATIONS AND GRANTING 14 GARY REDMAN, et al., DEFENDANTS’ MOTION TO COMPEL 15 Defendants. 16 17 Plaintiff filed this civil rights action under 42 U.S.C. § 1983 while confined in the 18 Amador County Jail. Plaintiff is no longer in custody. He proceeds without counsel and in forma 19 pauperis. By this order, the undersigned vacates the June 2, 2025, recommendation for 20 terminating sanctions against plaintiff and instead grants defendants’ motion to compel. Plaintiff 21 must respond further to defendants’ discovery requests. Plaintiff must meet his discovery 22 obligations to avoid a recommendation that this case be dismissed for failure to comply with the 23 court’s orders and the applicable rules. 24 I. Relevant Background 25 Plaintiff proceeds on his third amended complaint under 42 U.S.C. § 1983 asserting 26 excessive force claims against defendants Creach, LaBarbera, and Owens. (ECF No. 68; see also 27 ECF No. 70.) In an Amended Discovery and Scheduling Order filed on November 18, 2024, the 28 court ordered discovery could be conducted until March 18, 2025, on which date any motions 1 necessary to compel discovery were to be filed. (ECF 77 at 6.) All requests for discovery were to 2 be served no later than January 17, 2025. (Id.) All responses to written discovery requests were 3 ordered due forty-five days after service of the request. (Id. at 5.) 4 On December 13, 2024, defendant Creach served plaintiff with Interrogatories (Set One) 5 under Rule 33 of the Federal Rules of Civil Procedure, Requests for Production of Documents 6 (Set One) under Rule 34, and Requests for Admission (Set One) under Rule 36. (ECF No. 78-1 at 7 5-22.) After receiving no responses, defense counsel met and conferred with plaintiff over the 8 phone on several occasions and agreed to an extension of time for plaintiff’s responses. (Id. at 2.) 9 According to defense counsel, on March 1, 2025, plaintiff emailed defendant a document 10 appearing to be an incomplete attempted response to the Requests for Admission, and on March 11 10, 2025, plaintiff emailed four sets of documents to defendant appearing to be an attempt to 12 respond to the Request for Production of Documents. However, plaintiff did not provide any 13 information regarding which documents responded to which request. In addition, many of the 14 documents were not legible, and plaintiff did not provide any attempted response to the 15 Interrogatories. Counsel requested plaintiff to provide complete responses by March 18, 2025. 16 Plaintiff has not provided further responses. (ECF No. 78-1 at 2-3.) 17 On March 18, 2025, defendants filed a motion seeking to compel plaintiff’s discovery 18 responses and seeking sanctions up to and including dismissal of this action. Defendants argued 19 plaintiff failed to provide responses to the Interrogatories, Requests for Production of Documents, 20 and Requests for Admission. (ECF No. 78.) Plaintiff did not timely oppose the motion. By order 21 dated April 23, 2025, the court warned plaintiff that failure to file an opposition to the motion for 22 sanctions within 14 days would result in a recommendation that this case be dismissed. (ECF No. 23 79.) Plaintiff did not timely respond to the order. On June 2, 2025, the undersigned recommended 24 defendants’ request for terminating sanctions be granted. (ECF No. 81.) On August 14, 2025, 25 plaintiff filed late objections to the findings and recommendations and requested appointment of 26 counsel. (ECF No. 83.) 27 //// 28 //// 1 II. Plaintiff’s Failure to Comply with Discovery Obligations 2 In objections to the findings and recommendations for this case to be dismissed for 3 plaintiff’s failure to prosecute, plaintiff states he is not refusing to provide discovery because the 4 medical records defendants seek are unavailable to him. (ECF No. 83 at 1.) Plaintiff states he 5 contacted the hospital with the records and the hospital refused to provide the records. (Id.) 6 Plaintiff’s explanation does not suffice to justify his failure to respond properly to 7 defendants’ written discovery requests. First, the outstanding discovery is not limited to plaintiff’s 8 medical records. Second, even as to the medical records, plaintiff’s vague and bare explanation 9 does not excuse his failure to properly respond. 10 Plaintiff’s pro se status does not excuse him from responding to discovery requests. See 11 American Ass’n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1108 (9th Cir. 2000) 12 (pro se litigants are expected to know and comply with the rules of civil procedure). Lack of a 13 lawyer does not excuse intentional noncompliance with discovery rules and court orders. See 14 Lindstedt v. City of Granby, 238 F.3d 933, 937 (8th Cir. 2000) (per curiam) (affirming sanction 15 of dismissal and holding that “[a] pro se litigant is bound by the litigation rules as is a lawyer, 16 particularly here with the fulfilling of simple requirements of discovery”). 17 Plaintiff “cannot be required to produce the impossible” but must produce documents in 18 his possession, custody, or control. Berger v. Home Depot USA, Inc., No.SACV-10-678S-JOP- 19 LAX, 2010 WL 11558000, at *7 (C.D. Cal. Oct. 7, 2010) (quoting Zervos v. S. S. Sam Houston, 20 79 F.R.D. 593, 595 (S.D.N.Y. 1978) and LaChemise Lacoste v. Alligator Co., 60 F.R.D. 164, 172 21 (D. Del. 1973)). Plaintiff’s vague and bare statement that the hospital refuses to provide his 22 medical records does not allow the court to determine whether plaintiff made a reasonable inquiry 23 and exercised due diligence. See London Wallace v. City of Fresno, No. 1:19-CV-01199-AW- 24 ISAB, 2021 WL 916244, at *5 (E.D. Cal. Mar. 10, 2021) (“In responding to document requests a 25 party must make a reasonable inquiry to determine whether responsive documents exist, and if 26 they do not, the party should so state with sufficient specificity to allow the Court to determine 27 whether the party made a reasonable inquiry and exercised due diligence.”) (cleaned up) (quoting 28 Rogers v. Giurbino, 288 F.R.D. 469, 485 (S.D. Cal. 2012)). 1 For example, plaintiff has not submitted his sworn declaration or any other evidence 2 showing that any conditions outside his own control prevent him from obtaining his own medical 3 records or otherwise responding to discovery requests. Plaintiff has not set forth the specific steps 4 he took to attempt to obtain the medical records. Plaintiff simply claims without any details or 5 evidence in the form of a sworn declaration that the hospital will not provide the records. 6 Moreover, plaintiff’s outstanding discovery responses are not limited to production of 7 plaintiff’s medical records. Plaintiff has not properly responded to defendant’s Interrogatories 8 (Set One), Requests for Production of Documents (Set One), or Requests for Admission (Set 9 One). The court cannot excuse plaintiff’s noncompliance with discovery rules based on plaintiff’s 10 pro se status or his unsubstantiated assertion that the hospital refuses to provide his medical 11 records. See Wilson v. Ochoa, No. CV 21-8359-PSG (JPR), 2023 WL 8153595, at *4 (C.D. Cal. 12 Sept.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JUAN CARLOS GARCIA AYALA, No. 2:21-cv-2186-DJC-CKD P 12 Plaintiff, 13 v. ORDER VACATING FINDINGS AND RECOMMENDATIONS AND GRANTING 14 GARY REDMAN, et al., DEFENDANTS’ MOTION TO COMPEL 15 Defendants. 16 17 Plaintiff filed this civil rights action under 42 U.S.C. § 1983 while confined in the 18 Amador County Jail. Plaintiff is no longer in custody. He proceeds without counsel and in forma 19 pauperis. By this order, the undersigned vacates the June 2, 2025, recommendation for 20 terminating sanctions against plaintiff and instead grants defendants’ motion to compel. Plaintiff 21 must respond further to defendants’ discovery requests. Plaintiff must meet his discovery 22 obligations to avoid a recommendation that this case be dismissed for failure to comply with the 23 court’s orders and the applicable rules. 24 I. Relevant Background 25 Plaintiff proceeds on his third amended complaint under 42 U.S.C. § 1983 asserting 26 excessive force claims against defendants Creach, LaBarbera, and Owens. (ECF No. 68; see also 27 ECF No. 70.) In an Amended Discovery and Scheduling Order filed on November 18, 2024, the 28 court ordered discovery could be conducted until March 18, 2025, on which date any motions 1 necessary to compel discovery were to be filed. (ECF 77 at 6.) All requests for discovery were to 2 be served no later than January 17, 2025. (Id.) All responses to written discovery requests were 3 ordered due forty-five days after service of the request. (Id. at 5.) 4 On December 13, 2024, defendant Creach served plaintiff with Interrogatories (Set One) 5 under Rule 33 of the Federal Rules of Civil Procedure, Requests for Production of Documents 6 (Set One) under Rule 34, and Requests for Admission (Set One) under Rule 36. (ECF No. 78-1 at 7 5-22.) After receiving no responses, defense counsel met and conferred with plaintiff over the 8 phone on several occasions and agreed to an extension of time for plaintiff’s responses. (Id. at 2.) 9 According to defense counsel, on March 1, 2025, plaintiff emailed defendant a document 10 appearing to be an incomplete attempted response to the Requests for Admission, and on March 11 10, 2025, plaintiff emailed four sets of documents to defendant appearing to be an attempt to 12 respond to the Request for Production of Documents. However, plaintiff did not provide any 13 information regarding which documents responded to which request. In addition, many of the 14 documents were not legible, and plaintiff did not provide any attempted response to the 15 Interrogatories. Counsel requested plaintiff to provide complete responses by March 18, 2025. 16 Plaintiff has not provided further responses. (ECF No. 78-1 at 2-3.) 17 On March 18, 2025, defendants filed a motion seeking to compel plaintiff’s discovery 18 responses and seeking sanctions up to and including dismissal of this action. Defendants argued 19 plaintiff failed to provide responses to the Interrogatories, Requests for Production of Documents, 20 and Requests for Admission. (ECF No. 78.) Plaintiff did not timely oppose the motion. By order 21 dated April 23, 2025, the court warned plaintiff that failure to file an opposition to the motion for 22 sanctions within 14 days would result in a recommendation that this case be dismissed. (ECF No. 23 79.) Plaintiff did not timely respond to the order. On June 2, 2025, the undersigned recommended 24 defendants’ request for terminating sanctions be granted. (ECF No. 81.) On August 14, 2025, 25 plaintiff filed late objections to the findings and recommendations and requested appointment of 26 counsel. (ECF No. 83.) 27 //// 28 //// 1 II. Plaintiff’s Failure to Comply with Discovery Obligations 2 In objections to the findings and recommendations for this case to be dismissed for 3 plaintiff’s failure to prosecute, plaintiff states he is not refusing to provide discovery because the 4 medical records defendants seek are unavailable to him. (ECF No. 83 at 1.) Plaintiff states he 5 contacted the hospital with the records and the hospital refused to provide the records. (Id.) 6 Plaintiff’s explanation does not suffice to justify his failure to respond properly to 7 defendants’ written discovery requests. First, the outstanding discovery is not limited to plaintiff’s 8 medical records. Second, even as to the medical records, plaintiff’s vague and bare explanation 9 does not excuse his failure to properly respond. 10 Plaintiff’s pro se status does not excuse him from responding to discovery requests. See 11 American Ass’n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1108 (9th Cir. 2000) 12 (pro se litigants are expected to know and comply with the rules of civil procedure). Lack of a 13 lawyer does not excuse intentional noncompliance with discovery rules and court orders. See 14 Lindstedt v. City of Granby, 238 F.3d 933, 937 (8th Cir. 2000) (per curiam) (affirming sanction 15 of dismissal and holding that “[a] pro se litigant is bound by the litigation rules as is a lawyer, 16 particularly here with the fulfilling of simple requirements of discovery”). 17 Plaintiff “cannot be required to produce the impossible” but must produce documents in 18 his possession, custody, or control. Berger v. Home Depot USA, Inc., No.SACV-10-678S-JOP- 19 LAX, 2010 WL 11558000, at *7 (C.D. Cal. Oct. 7, 2010) (quoting Zervos v. S. S. Sam Houston, 20 79 F.R.D. 593, 595 (S.D.N.Y. 1978) and LaChemise Lacoste v. Alligator Co., 60 F.R.D. 164, 172 21 (D. Del. 1973)). Plaintiff’s vague and bare statement that the hospital refuses to provide his 22 medical records does not allow the court to determine whether plaintiff made a reasonable inquiry 23 and exercised due diligence. See London Wallace v. City of Fresno, No. 1:19-CV-01199-AW- 24 ISAB, 2021 WL 916244, at *5 (E.D. Cal. Mar. 10, 2021) (“In responding to document requests a 25 party must make a reasonable inquiry to determine whether responsive documents exist, and if 26 they do not, the party should so state with sufficient specificity to allow the Court to determine 27 whether the party made a reasonable inquiry and exercised due diligence.”) (cleaned up) (quoting 28 Rogers v. Giurbino, 288 F.R.D. 469, 485 (S.D. Cal. 2012)). 1 For example, plaintiff has not submitted his sworn declaration or any other evidence 2 showing that any conditions outside his own control prevent him from obtaining his own medical 3 records or otherwise responding to discovery requests. Plaintiff has not set forth the specific steps 4 he took to attempt to obtain the medical records. Plaintiff simply claims without any details or 5 evidence in the form of a sworn declaration that the hospital will not provide the records. 6 Moreover, plaintiff’s outstanding discovery responses are not limited to production of 7 plaintiff’s medical records. Plaintiff has not properly responded to defendant’s Interrogatories 8 (Set One), Requests for Production of Documents (Set One), or Requests for Admission (Set 9 One). The court cannot excuse plaintiff’s noncompliance with discovery rules based on plaintiff’s 10 pro se status or his unsubstantiated assertion that the hospital refuses to provide his medical 11 records. See Wilson v. Ochoa, No. CV 21-8359-PSG (JPR), 2023 WL 8153595, at *4 (C.D. Cal. 12 Sept. 25, 2023) (claims unsupported by statements under penalty of perjury or other supporting 13 evidence do not excuse non-compliance with discovery), report and recommendation adopted, 14 No. CV 21-8359-PSG (JPR), 2023 WL 8374723 (C.D. Cal. Dec. 1, 2023). 15 Plaintiff must respond to defendant’s discovery requests, without objections, to the best of 16 plaintiff’s ability. See Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th 17 Cir. 1992) (“It is well established that a failure to object to discovery requests within the time 18 required constitutes a waiver of any objection”). Within 21 days of the date of this order, plaintiff 19 shall serve defendant with written responses, without objections, to defendant’s Interrogatories 20 (Set One) and Requests for Production of Documents (Set One) and must produce any responsive 21 documents in his possession or control including medical records unless plaintiff demonstrates 22 that conditions outside his own control prevent him from obtaining the records. 23 As to the Requests for Admission (Set One), plaintiff has presented no justification that 24 would excuse his non-response and, therefore, each matter is deemed admitted. Fed. R. Civ. P. 25 36(a)(3) (when a party fails to timely respond to a request for admission, the matter is 26 automatically deemed admitted). The court may permit withdrawal or amendment upon a motion 27 by the party if it would promote the presentation of the merits of the action and the requesting 28 party would not be prejudiced. See Fed. R. Civ. P. 36(b); see also Sonoda v. Cabrera, 255 F.3d 1 1035, 1039 (9th Cir. 2001) (upon a motion to withdraw admission, the party who obtained the 2 admission has the burden of proving that allowing withdrawal of the admission would prejudice 3 its case). If plaintiff provides responses to defendant’s Request for Admissions, Set One within 4 the time frame provided for his other written discovery responses, plaintiff may move the court to 5 withdraw the matters deemed admitted based on untimely responses. 6 Plaintiff is hereby informed and cautioned that all parties have an obligation in litigation 7 to respond to properly served discovery requests. If a party chooses to ignore that obligation, the 8 court has the authority to impose a variety of sanctions, including dismissal. See Fed. R. Civ. P. 9 37(d)(1)(A), (d)(3); Sanchez v. Rodriguez, 298 F.R.D. 460, 470-73 (C.D. Cal. 2014) (dismissing 10 pro se prisoner’s action for failure to respond to discovery and failure to comply with three court 11 orders to respond to discovery). In addition, plaintiff is cautioned that the court will look with 12 disfavor upon any further requests for extensions of time to comply with this order unless the 13 request demonstrates good cause based on circumstance outside of plaintiff’s control. 14 III. Appointment of Counsel 15 Plaintiff requests that the court appoint counsel. District courts lack authority to require 16 counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. 17 Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney 18 to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 19 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 20 When determining whether “exceptional circumstances” exist, the court must consider plaintiff’s 21 likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro 22 se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 23 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The 24 burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common 25 to most prisoners, such as lack of legal education and limited law library access, do not establish 26 exceptional circumstances that warrant a request for voluntary assistance of counsel. 27 Here, the allegations in the complaint are not complicated. In addition, plaintiff was able 28 to articulate his claims pro se. He has not demonstrated he is likely to succeed on the merits. 1 | Having considered the factors under Palmer, the court finds plaintiff does not meet his burden to 2 || demonstrate exceptional circumstances warrant the appointment of counsel at this time. 3 For the reasons set forth above, IT IS ORDERED as follows: 4 1. The court VACATES the findings and recommendations filed on June 2, 2025 (ECF 5 No. 81) recommending that this case be dismissed for failure to prosecute and denying 6 defendants’ motion to compel as moot. 7 2. The court GRANTS defendants’ motion to compel (ECF No. 78). 8 3. Defendants’ Request for Admissions, Set One, are deemed admitted. If plaintiff 9 provides responses within 21 days of the date of this order, plaintiff may also move 10 the court to withdraw the matters deemed admitted; any such motion must be filed 11 within 21 days of the date of this order. 12 4. Within 21 days of service of this order, plaintiff shall serve complete and verified 13 responses, without objections, to defendant’s Interrogatories (Set One) and Request 14 for Production of Documents (Set One) and shall produce any responsive documents 15 in his possession or control. 16 5. The pretrial scheduling order is amended to extend the discovery deadline to 35 days 17 from the date of this order solely for the purpose of plaintiff providing discovery 18 responses and defendants filing any further motion to compel; a new deadline for other 19 pretrial motions including dispositive motions will be set at a later date 20 6. Plaintiffs failure to comply with this order and/or failure to comply with his discovery 21 obligations for this case will result in a recommendation that this case be dismissed. 22 7. Defendants’ alternate request for terminating sanctions is denied without prejudice to 23 renewal if plaintiff does not meet his discovery obligations. 24 8. Plaintiff's motion for the appointment of counsel (ECF No. 83) is DENIED without 25 prejudice. 26 | Dated: August 26, 2025 □□ I / dle ae 27 8, ayal218.vacfi.mte CAROLYN K DELANEY 28 UNITED STATES MAGISTRATE JUDGE