(PC) Clark v. Gutierrez

• Court: District Court, E.D. California
• Decided: April 11, 2023
• Docket: 1:21-cv-01386
• Status: Unknown

Opinion

6 UNITED STATES DISTRICT COURT

7 EASTERN DISTRICT OF CALIFORNIA

9 CHRISTOPHER CHARLES CLARK, Case No. 1:21-cv-01386-JLT-EPG (PC)

10 Plaintiff, ORDER DIRECTING DEFENDANT TO FILE ANSWER WITHIN SEVEN DAYS 11 v. (ECF No. 32) 12 FIDEL GUTIERREZ, et al., ORDER OPENING DISCOVERY ONLY 13 Defendants. ON THE ISSUE OF EXHAUSTION OF AVAILABLE ADMINISTRATIVE 14 REMEDIES

15 16 On March 13, 2023, the Court granted in part Defendants’ second motion for an 17 extension of the responsive pleading deadline, giving Defendants until April 10, 2023, to file 18 their responsive pleading. (ECF No. 32). The Court warned Defendants that no further 19 extensions of this deadline would be granted. (Id. at 2). On April 10, 2023, Defendants filed a 20 motion for summary judgment (ECF No. 33), but they did not file a responsive pleading. 21 While serving a motion pursuant to Federal Rule of Civil Procedure 12(b) can extend 22 the deadline for filing for a responsive pleading, Fed. R. Civ. P. 12(a)(4)(A), filing a motion for 23 summary judgment does not. Accordingly, the Court will require Defendants to file a 24 responsive pleading, and will give them seven days to do so. If Defendants fail to do so, 25 Plaintiff may move for entry of default. 26 Additionally, as Defendants have filed a motion for summary judgment on the issue of 27 exhaustion, the Court will open discovery only on the issue of exhaustion of administrative 28 \\\ 1 remedies.1 2 Accordingly, based on the foregoing, IT IS ORDERED that: 3 1. Defendants have seven days from the date of service of this order to file their 4 responsive pleading. If Defendants fail to file their responsive pleading by this 5 deadline, Plaintiff may move for entry of default. 6 2. If Plaintiff needs additional time to file his opposition to the motion for 7 summary judgment so that he can take discovery, Plaintiff may file a motion for 8 an extension of time. 9 3. Discovery is open only on the issue of exhaustion of administrative remedies. 10 4. The parties may take the following types of discovery from other parties: 11 a. Interrogatories (an interrogatory is a written question or request for 12 information and “may relate to any matter that may be inquired into 13 under Rule 26(b).” Fed. R. Civ. P. 33(a)(2)); 14 b. Requests for Production (a request for production is a written request 15 that the opposing party produce documents or electronically stored 16 information, “including writings, drawings, graphs, charts, photographs, 17 sound recordings, images, and other data or data compilations,” or a 18 written request that the opposing party produce any designated tangible 19 things. Fed. R. Civ. P. 34(a)(1)); 20 c. Requests for Admissions (a request for admission is a written request 21 that the opposing party “admit, for purposes of the pending action only, 22 the truth of any matters within the scope of Rule 26(b)(1)” that relate to 23 “(A) facts, the application of law to fact, or opinions about either; [or] 24 (B) the genuineness of any described documents.” Fed. R. Civ. P. 25 26 36(a)(1)); and

27 1 Defendants have contacted ADR Coordinator Sujean Park to schedule a settlement conference, and, as 28 the Court previously informed the parties, “[i]f the case proceeds to a settlement conference, the Court will not schedule the case until after the settlement conference is held.” (ECF No. 27, p. 2 n.2). 1 d. Depositions (a deposition is where one party (or that party’s counsel) 2 questions someone under oath, and a court reporter is present to record 3 the proceedings).2 4 i. Pursuant to Federal Rule of Civil Procedure 30(a)(2)(B), 5 Defendant(s) may depose any witness confined in a prison on the 6 condition that, at least fourteen (14) days before such a 7 deposition, Defendant(s) serve all parties with the notice required 8 by Federal Rule of Civil Procedure 30(b)(1). Plaintiff’s failure to 9 participate in a properly noticed deposition could result in 10 sanctions against Plaintiff, including monetary sanctions and/or 11 dismissal of this case. Pursuant to Federal Rule of Civil 12 Procedure 30(b)(4), the parties may take any deposition under 13 this section by video conference without a further motion or order 14 of the Court, relieving the court reporter of the requirement to be 15 in the physical presence of the witness under Federal Rule of 16 17 Civil Procedure 28(a)(1) during that deposition. 18 ii. If Plaintiff wishes to take a deposition, Plaintiff must file a 19 motion requesting permission to do so, specifically showing the 20 ability to comply with the applicable Federal Rules of Civil 21 Procedure by providing the name of the person to be deposed, the 22 name and address of the court reporter who will take the 23 deposition, the estimated cost for the court reporter’s time and the 24 recording, and the source of funds for payment of that cost. 25 Plaintiff bears the responsibility to pay the costs of the 26

27 2 “Instead of participating in the oral examination, a party may serve written questions in a sealed 28 envelope on the party noticing the deposition, who must deliver them to the officer. The officer must ask the deponent those questions and record the answers verbatim.” Fed. R. Civ. P. 30(c)(3). 1 deposition, including the cost of copies of deposition 2 transcript(s).3 3 5. A party may serve on any other party no more than 10 interrogatories, 10 4 requests for production of documents, and 10 requests for admission at this time. 5 If a party wishes to serve additional discovery requests, that party may file a 6 motion for additional discovery requests with the Court, explaining why 7 additional discovery requests are necessary. 8 6. Discovery requests and responses should be sent to the opposing part(ies), or 9 their counsel if represented. They should not be filed with the Court. 10 7. Responses to written discovery requests shall be due forty-five (45) days after 11 the request is first served. Boilerplate objections are disfavored and may be 12 summarily overruled by the Court. Responses to document requests shall 13 include all documents within a party’s possession, custody, or control. Fed. R. 14 Civ. P. 34(a)(1). Documents are deemed to be within a party’s possession, 15 custody, or control if the party has actual possession, custody, or control thereof, 16 or the legal right to obtain the property on demand. If Defendant(s) cannot 17 obtain documents from Plaintiff’s institution(s) of confinement, Defendant(s) 18 shall clearly respond that a third party subpoena will be necessary to obtain 19 documents from Plaintiff’s institution(s) of confinement. 20 8. If any party or third party withholds a document on the basis of privilege, that 21 22 party or third party shall provide a privilege log to the requesting party 23 identifying the date, author, recipients, general subject matter, and basis of the 24 privilege within thirty (30) days after the date that responses are due. Failure to 25 provide a privilege log within this time shall result in a waiver of the privilege. 26 Additionally, if a party is claiming a right to withhold witness statements and/or 27 28 3 The Court may request input from Plaintiff’s institution of confinement to determine if the deposition(s) can proceed in a safe and secure manner before ruling on a motion for a deposition. 1 evidence gathered from investigation(s) into the incident(s) at issue in the 2 complaint based on the official information privilege or confidentiality, the 3 withholding party shall submit the withheld witness statements and/or evidence 4 to the Court for in camera review, along with an explanation of why the witness 5 statements and/or evidence should be withheld.4 The witness statements and/or 6 evidence shall be Bates stamped, and mailed to Judge Grosjean at 2500 Tulare 7 Street, Sixth Floor, Fresno, CA 93721. The withholding party shall also file and 8 serve a notice that they have complied with this order. All other claims of 9 privilege may be challenged via a motion to compel. 10 9. If Plaintiff seeks documents from someone who is not a party in this case, 11 Plaintiff must file a request for the issuance of a subpoena duces tecum with the 12 Court. In any request for a subpoena, Plaintiff must: (1) identify the documents 13 sought and from whom; (2) explain why the documents are relevant to the 14 claims in this case; and (3) make a showing in the request that the records are 15 only obtainable through a third party. If the Court approves the request, it may 16 17 issue Plaintiff a subpoena duces tecum, commanding the production of 18 documents from a non-party, and may command service of the subpoena by the 19

20 4 See Woodford v. Ngo, 548 U.S. 81, 94-95 (2006) (“[P]roper exhaustion improves the quality of those 21 prisoner suits that are eventually filed because proper exhaustion often results in the creation of an administrative record that is helpful to the court. When a grievance is filed shortly after the event giving rise to the grievance, 22 witnesses can be identified and questioned while memories are still fresh, and evidence can be gathered and preserved.”). 23 The “common law governmental privilege (encompassing and referred to sometimes as the official or state secret privilege) . . . is only a qualified privilege, contingent upon the competing interests of the requesting 24 litigant and subject to disclosure. . . .” Kerr v. U.S. Dist. Ct. for N. Dist. of Cal., 511 F.2d 192, 198 (9th Cir. 1975) (citations omitted). The Ninth Circuit has since followed Kerr in requiring in camera review and a balancing of 25 interests in ruling on the government’s claim of the official information privilege. See, e.g., Breed v. U.S. Dist. Ct. for N. Dist. of Cal., 542 F.2d 1114, 1116 (9th Cir. 1976) (“[A]s required by Kerr, we recognize ‘that in camera 26 review is a highly appropriate and useful means of dealing with claims of governmental privilege.’”) (quoting Kerr v. U. S. Dist. Ct. for N. Dist. of Cal., 426 U.S. 394, 406 (1976)); Sanchez v. City of Santa Ana, 936 F.2d 1027, 27 1033-34 (9th Cir. 1990), as amended on denial of reh’g (Feb. 27, 1991), as amended on denial of reh’g (May 24, 1991) (“Government personnel files are considered official information. To determine whether the information 28 sought is privileged, courts must weigh the potential benefits of disclosure against the potential disadvantages. If the latter is greater, the privilege bars discovery.”) (citations omitted). 1 United States Marshals Service. Fed. R. Civ. P. 45; 28 U.S.C. § 1915(d). 2 However, the Court will consider granting such a request only if the documents 3 sought from the non-party are not obtainable from Defendant(s) through a Rule 34 request for production of documents. ° 10. The parties are required to act in good faith during the course of discovery and 6 the failure to do so may result in the payment of expenses pursuant to Federal Rule of Civil Procedure 37(a)(5) or other appropriate sanctions authorized by 8 the Federal Rules of Civil Procedure or the Local Rules. 3 11. The parties have permission to file motions to compel further discovery 10 responses. Any such motion should include a copy of the request(s) and any it response to the request(s) at issue. The responding party may file a response to t2 the motion no later than twenty-one days from the date the motion is filed. If, 13 after reviewing the motion(s) and response(s), the Court determines that a 14 hearing will be helpful, the Court will set a hearing on the motion(s) to compel. 15 16 |) IT IS SO ORDERED. "ll Dated: _ April 11, 2023 [sp Py — 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28