1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY WILLIAM CORTINAS, Case No. 1:19-cv-00367-JLT-SKO (PC)
12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION TO COMPEL DISCOVERY (Doc. 98) 14 VASQUEZ, et al.,
15 Defendants. ORDER DENYING MISCELLANEOUS RELIEF BY PLAINTIFF (Doc. 99) 16 17 Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 18 42 U.S.C. § 1983. 19 I. INTRODUCTION 20 This matter is scheduled for an evidentiary hearing on April 19, 2022, at 10:30 a.m. 21 (Doc. 84.) The evidentiary hearing involves “material disputes of fact … regarding whether 22 administrative remedies were available to Plaintiff … [and] an evidentiary hearing is necessary to 23 resolve the disputes.” (Doc. 72.) 24 On April 1, 2022, Plaintiff filed a “Motion to Compel Discovery for April 19, 2022 25 Evidentiary Hearing Scheduled for April 19 2022 at 10:30 A.M. [Federal Rule of Civil Procedure 26 37].” (Doc. 98.) On that same date, Plaintiff filed a “Request for Specific Date to the April 19, 27 2022 10:30 A.M. Evidentiary Hearing and Access to the Law Library.” (Doc. 99.) 1 II. MOTION TO COMPEL (Doc. 98) 2 Plaintiff’s motion was filed April 1, 2022. The motion is dated and signed March 20, 3 2022, and the accompanying proof of service is dated and signed March 21, 2022. (Doc. 98.) 4 Plaintiff’s motion seeks the following: (1) “ALL E-MAIL(S) all communications upon the 5 second level administrative appeal;” (2) “ALL RECORDS OF DATES AND TIME spent upon 6 preparation of their second level response;” (3) THE NAMES OF THE PERSON(S) WHO 7 ALLEGEDLY MAILED the notices of exceptional delay and their reasons for these exceptional 8 delays being justified, needed, required;” and (4) The interview(s), persons interviewed, the dates 9 of the interviews, all persons interviewed whether listed in the second level response or not, the 10 dates and time these took place.” (Doc. 98 at 1.) 11 Plaintiff contends he did not receive “any NOTICE OF EXCEPTIONAL DELAY(S) 12 AFTER AUGUST 2018,” or “any RESPONSES to [his] CDCR 22 forms entitled INMATE 13 REQUEST FOR INTERVIEW(S).” (Doc. 98 at 2.) Plaintiff contends the discovery he seeks will 14 establish CDCR intentionally delayed their responses to frustrate Plaintiff or “cause the appeal to 15 be unavailable to” him. (Id.) Plaintiff contends that without this information, both he and the 16 Court “will be at a disadvantage in the search for the TRUTH.” (Id.) 17 Plaintiff also contends that during the recent teleconference with the Court, defense 18 counsel stated to the Court that she mailed the discovery he requested, but Plaintiff has not 19 received the discovery requested, namely “There was NOT TIME, date E-mails, Showing 20 communication over or about the appeal.” (Doc. 90 at 3.) The only document Plaintiff received 21 was a “print-out of alleged dates when exceptional delays were mailed.” (Id.) Plaintiff claims he 22 “KNOW[S] EVIDENCE EXIST[S] WHICH WILL PROVE THAT THEY JUST SET THE 23 ADMINISTRATIVE APPEAL ASIDE FOR 16 months and did nothing until the attorney 24 generals office called.” (Id. at 4.) 25 For the reasons set forth below, Plaintiff’s motion will be denied. 26 A. Analysis 27 As previously detailed in the Court’s March 29, 2022, “order Denying Plaintiff’s Motion 1 Order setting forth discovery procedures and deadlines, including the “deadline for completion of 2 all discovery, including filing motions to compel” on “10/06/2021.” (Doc. 51 at 3, original 3 emphasis.) On August 27, 2021, the Court issued an Order Granting Defendant’s Motion to 4 Modify the Discovery and Scheduling Order and Staying Discovery. (Doc. 59.) The Court 5 extended the deadline to file motions challenging the exhaustion of administrative remedies to 6 “October 5, 2021,” and stayed discovery, “except for discovery pertaining to exhaustion of 7 administrative remedies, until the Court rules on Defendants’ anticipated exhaustion-based 8 motion for summary judgment.” (Doc. 59 at 2, emphasis in original.) 9 Defendants filed their motion for summary judgment on October 5, 2021 (Doc. 63), 10 Plaintiff filed an opposition (Doc. 62, 67) and Defendants filed a reply (Doc. 71). 11 On December 1, 2021, the Court issued an Order Setting Evidentiary Hearing on 12 Exhaustion of Administrative Remedies and Order Granting Plaintiff’s Motion for Leave to 13 Conduct Limited Discovery. (Doc. 72.) Specifically, the Court ordered in relevant part: 14 Plaintiff’s motion for leave to conduct limited discovery (Doc. 69) is GRANTED. Between the date of this order and February 18, 2022, 15 the parties may conduct discovery on the issue of whether the appeals office of California State Prison, Corcoran, provided Plaintiff with 16 notice(s) of the delay in processing his administrative appeal (Log. No. CSPC-7-18-02210) at the second level of review. 17 18 (Doc. 73 at 3, ¶ 6, emphasis in original.) 19 Following a teleconference held March 7, 2022, and at Plaintiff’s request, the evidentiary 20 hearing previously set for March 17, 2022, was continued to April 19, 2022, at 10:30 a.m. (Doc. 21 84.) During those proceedings, Plaintiff’s access to the law library was discussed and the parties 22 referenced certain discovery materials relevant to the evidentiary hearing in the form of further 23 documentation from the Appeals Office at California State Prison, Corcoran. 24 Plaintiff again moves to compel discovery he claims is relevant to the forthcoming 25 evidentiary hearing. 26 1. Timeliness 27 Plaintiff’s motion, like his previous motion, is untimely. The parties were permitted to 1 original discovery deadline, relating to the exhaustion of administrative remedies. (See Doc. 73.) 2 Plaintiff did not seek to extend the limited discovery deadline beyond February 18, 2022, and he 3 may not do so now. Despite his pro se status, Plaintiff must still follow Court orders and the 4 applicable rules of procedure. See Local Rule 183(a). Plaintiff makes no effort in this motion to 5 explain why he has not complied with the discovery deadlines and applicable rules. See, e.g., 6 Harris v. City of Seattle, 315 F.Supp.2d 1112, 1118-1119 (W.D. Wash. 2004) (Plaintiff was not 7 entitled to compel discovery of nine depositions and documents, where plaintiff had over one year 8 to conduct discovery and noticed the depositions and requested documents on day of discovery 9 deadline.) 10 As noted in this Court’s previous order denying the motion to compel, Plaintiff did not 11 propound any written discovery to Defendants. The time for doing so has passed and Plaintiff 12 may not now seek an order of this Court to compel Defendants to produce discovery not formally 13 sought by Plaintiff. Plaintiff’s citation to Federal Rule of Civil Procedure 37 does not aid his 14 position. That rules provides, in relevant part, as follows: 15 (a) Motion for an Order Compelling Disclosure or Discovery. 16 (1) In General. On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The 17 motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to 18 make disclosure or discovery in an effort to obtain it without court action. 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 (3) Specific Motions. 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 (B) To Compel a Discovery Response.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY WILLIAM CORTINAS, Case No. 1:19-cv-00367-JLT-SKO (PC)
12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION TO COMPEL DISCOVERY (Doc. 98) 14 VASQUEZ, et al.,
15 Defendants. ORDER DENYING MISCELLANEOUS RELIEF BY PLAINTIFF (Doc. 99) 16 17 Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 18 42 U.S.C. § 1983. 19 I. INTRODUCTION 20 This matter is scheduled for an evidentiary hearing on April 19, 2022, at 10:30 a.m. 21 (Doc. 84.) The evidentiary hearing involves “material disputes of fact … regarding whether 22 administrative remedies were available to Plaintiff … [and] an evidentiary hearing is necessary to 23 resolve the disputes.” (Doc. 72.) 24 On April 1, 2022, Plaintiff filed a “Motion to Compel Discovery for April 19, 2022 25 Evidentiary Hearing Scheduled for April 19 2022 at 10:30 A.M. [Federal Rule of Civil Procedure 26 37].” (Doc. 98.) On that same date, Plaintiff filed a “Request for Specific Date to the April 19, 27 2022 10:30 A.M. Evidentiary Hearing and Access to the Law Library.” (Doc. 99.) 1 II. MOTION TO COMPEL (Doc. 98) 2 Plaintiff’s motion was filed April 1, 2022. The motion is dated and signed March 20, 3 2022, and the accompanying proof of service is dated and signed March 21, 2022. (Doc. 98.) 4 Plaintiff’s motion seeks the following: (1) “ALL E-MAIL(S) all communications upon the 5 second level administrative appeal;” (2) “ALL RECORDS OF DATES AND TIME spent upon 6 preparation of their second level response;” (3) THE NAMES OF THE PERSON(S) WHO 7 ALLEGEDLY MAILED the notices of exceptional delay and their reasons for these exceptional 8 delays being justified, needed, required;” and (4) The interview(s), persons interviewed, the dates 9 of the interviews, all persons interviewed whether listed in the second level response or not, the 10 dates and time these took place.” (Doc. 98 at 1.) 11 Plaintiff contends he did not receive “any NOTICE OF EXCEPTIONAL DELAY(S) 12 AFTER AUGUST 2018,” or “any RESPONSES to [his] CDCR 22 forms entitled INMATE 13 REQUEST FOR INTERVIEW(S).” (Doc. 98 at 2.) Plaintiff contends the discovery he seeks will 14 establish CDCR intentionally delayed their responses to frustrate Plaintiff or “cause the appeal to 15 be unavailable to” him. (Id.) Plaintiff contends that without this information, both he and the 16 Court “will be at a disadvantage in the search for the TRUTH.” (Id.) 17 Plaintiff also contends that during the recent teleconference with the Court, defense 18 counsel stated to the Court that she mailed the discovery he requested, but Plaintiff has not 19 received the discovery requested, namely “There was NOT TIME, date E-mails, Showing 20 communication over or about the appeal.” (Doc. 90 at 3.) The only document Plaintiff received 21 was a “print-out of alleged dates when exceptional delays were mailed.” (Id.) Plaintiff claims he 22 “KNOW[S] EVIDENCE EXIST[S] WHICH WILL PROVE THAT THEY JUST SET THE 23 ADMINISTRATIVE APPEAL ASIDE FOR 16 months and did nothing until the attorney 24 generals office called.” (Id. at 4.) 25 For the reasons set forth below, Plaintiff’s motion will be denied. 26 A. Analysis 27 As previously detailed in the Court’s March 29, 2022, “order Denying Plaintiff’s Motion 1 Order setting forth discovery procedures and deadlines, including the “deadline for completion of 2 all discovery, including filing motions to compel” on “10/06/2021.” (Doc. 51 at 3, original 3 emphasis.) On August 27, 2021, the Court issued an Order Granting Defendant’s Motion to 4 Modify the Discovery and Scheduling Order and Staying Discovery. (Doc. 59.) The Court 5 extended the deadline to file motions challenging the exhaustion of administrative remedies to 6 “October 5, 2021,” and stayed discovery, “except for discovery pertaining to exhaustion of 7 administrative remedies, until the Court rules on Defendants’ anticipated exhaustion-based 8 motion for summary judgment.” (Doc. 59 at 2, emphasis in original.) 9 Defendants filed their motion for summary judgment on October 5, 2021 (Doc. 63), 10 Plaintiff filed an opposition (Doc. 62, 67) and Defendants filed a reply (Doc. 71). 11 On December 1, 2021, the Court issued an Order Setting Evidentiary Hearing on 12 Exhaustion of Administrative Remedies and Order Granting Plaintiff’s Motion for Leave to 13 Conduct Limited Discovery. (Doc. 72.) Specifically, the Court ordered in relevant part: 14 Plaintiff’s motion for leave to conduct limited discovery (Doc. 69) is GRANTED. Between the date of this order and February 18, 2022, 15 the parties may conduct discovery on the issue of whether the appeals office of California State Prison, Corcoran, provided Plaintiff with 16 notice(s) of the delay in processing his administrative appeal (Log. No. CSPC-7-18-02210) at the second level of review. 17 18 (Doc. 73 at 3, ¶ 6, emphasis in original.) 19 Following a teleconference held March 7, 2022, and at Plaintiff’s request, the evidentiary 20 hearing previously set for March 17, 2022, was continued to April 19, 2022, at 10:30 a.m. (Doc. 21 84.) During those proceedings, Plaintiff’s access to the law library was discussed and the parties 22 referenced certain discovery materials relevant to the evidentiary hearing in the form of further 23 documentation from the Appeals Office at California State Prison, Corcoran. 24 Plaintiff again moves to compel discovery he claims is relevant to the forthcoming 25 evidentiary hearing. 26 1. Timeliness 27 Plaintiff’s motion, like his previous motion, is untimely. The parties were permitted to 1 original discovery deadline, relating to the exhaustion of administrative remedies. (See Doc. 73.) 2 Plaintiff did not seek to extend the limited discovery deadline beyond February 18, 2022, and he 3 may not do so now. Despite his pro se status, Plaintiff must still follow Court orders and the 4 applicable rules of procedure. See Local Rule 183(a). Plaintiff makes no effort in this motion to 5 explain why he has not complied with the discovery deadlines and applicable rules. See, e.g., 6 Harris v. City of Seattle, 315 F.Supp.2d 1112, 1118-1119 (W.D. Wash. 2004) (Plaintiff was not 7 entitled to compel discovery of nine depositions and documents, where plaintiff had over one year 8 to conduct discovery and noticed the depositions and requested documents on day of discovery 9 deadline.) 10 As noted in this Court’s previous order denying the motion to compel, Plaintiff did not 11 propound any written discovery to Defendants. The time for doing so has passed and Plaintiff 12 may not now seek an order of this Court to compel Defendants to produce discovery not formally 13 sought by Plaintiff. Plaintiff’s citation to Federal Rule of Civil Procedure 37 does not aid his 14 position. That rules provides, in relevant part, as follows: 15 (a) Motion for an Order Compelling Disclosure or Discovery. 16 (1) In General. On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The 17 motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to 18 make disclosure or discovery in an effort to obtain it without court action. 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 (3) Specific Motions. 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 (B) To Compel a Discovery Response. A party seeking 23 discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be 24 made if: 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 (iv) a party fails to produce documents or fails to respond that inspection will be permitted -- or fails to 27 permit inspection -- as requested under Rule 34. 1 provides for the potential of sanctions for such failures. The rule does not apply in this case as 2 Plaintiff did not engage in proper discovery. 3 Plaintiff did not propound written requests for production of documents to Defendants. 4 See Fed. R. Civ. P. 34; see also James v. Wash Depot Holdings, Inc., 240 F.R.D. 693, 694-95 5 (S.D. Fla. Nov. 8, 2006) (District court would not compel plaintiff to produce documents where 6 defense counsel merely requests the records informally without a formal discovery request for 7 production); Aguilar v. Immigration and Customs Enforcement Div. of U.S. Dept. of Homeland 8 Sec., 255 F.R.D. 350, 359-60 (S.D.N.Y. Nov. 21, 2008) (Civil rights plaintiff who had not make 9 formal request for discovery of metadata when they initially sought discovery of defendant 10 federal agency’s responsive electronic mail messages, and had delayed making such request until 11 agency’s process of harvesting e-mails was largely complete, were not entitled to compelled 12 retransmittal of responsive emails); Schwartz v. Marketing Pub. Co., 153 F.R.D. 16, 21 (D. Conn. 13 Jan. 21, 1994) (Plaintiff not entitled to order to compel production of documents where 14 documents were not requested pursuant to discovery rules); Grissom v. N.L.R.B., 364 F.Supp. 15 1151, 1153-54 (M.D. La. Oct. 15, 1973) (Federal district court would not entertain employer’s 16 motion to compel production of documents from the NLRB until such time as employer made a 17 request for such documents pursuant to Fed. R. Civ. P. 34 and was improperly refused). Thus, 18 Defendants cannot be said to have failed to produce documents sought by Plaintiff, and Plaintiff 19 may not properly seek an order compelling Defendants to do so. Moreover, Rule 37 sanctions are 20 inapplicable where this Court has not found Defendants committed a discovery violation. See, 21 e.g., Sokos v. Hilton Hotels, Corp., 283 F.Supp.2d 42, 55 (D.D.C. 2003). 22 As previously noted in this Court’s Order denying the previous motion to compel, 23 Plaintiff’s contentions concerning the relevance of the information he seeks are unavailing. 24 Plaintiff could have conducted discovery as early as May 2021, and as late as February 18, 2022. 25 Although Plaintiff seeks information from the Corcoran Appeals Office, he failed to propound 26 written requests for production of the documents to Defendants within the applicable discovery 27 period. 1 assuming it even exists–because Plaintiff has complied with neither the Court’s orders concerning 2 the applicable discovery deadlines, nor the applicable discovery rules of the Federal Rules of 3 Civil Procedure. 4 III. REQUEST FOR LIBRARY ACCESS 5 Plaintiff has also filed a “Request for Specific Date to the April 19, 2022 10:30 A.M. 6 Evidentiary Hearing and Access to the Law Library.” (Doc. 99.) This request, like Plaintiff’s 7 request filed on March 21, 2022 (Doc. 94), seeks an order from the Court specifically referencing 8 the April 19, 2022, evidentiary hearing, emailed “to the PRISON LITIGATIONS OFFICE” 9 directing that Plaintiff be allowed Priority Library User (PLU) status through April 19, 2022. 10 (Doc. 99 at 1-2.) Plaintiff’s request will be denied. 11 On March 24, 2022, this Court issued an Order Denying Without Prejudice Plaintiff’s “Ex 12 Parte” Request. (See Doc. 95.) Plaintiff now makes the same request. He again seeks written 13 proof of the evidentiary hearing set for April 19, 2022, at 10:30 a.m., and an order from this Court 14 directing the prison to provide him with PLU law library access. 15 As noted in the Court’s previous order, the Court has issued a number of orders that 16 reference the fact this matter is set for an evidentiary hearing on April 19, 2022. (See Docs. 84, 17 91, 92, 93, 95, 97.) Plaintiff has been served with the documentation, and in one instance, the 18 prison litigation coordinator was served via email with the Writ of Habeas Corpus ad 19 Testificandum (Doc. 92) requiring Plaintiff’s presence at the April 19, 2022, evidentiary hearing. 20 The previous order also advised Plaintiff that he was required to “establish he has complied with 21 the required procedure for obtaining or extending PLU status and has been denied PLU status by 22 the institution.” (Doc. 95 at 3.) Plaintiff fails to establish that he complied with the institution’s 23 procedure to obtain or extend PLU status and that his request was denied. The Court will not 24 issue an order directing the prison to take any action without such a showing. 25 IV. CONCLUSION AND ORDER 26 For the reasons set forth above, the Court HEREBY ORDERS that: 27 1. Plaintiff’s “Motion to Compel Discovery for April 19, 2022 Evidentiary Hearing 1 (Doc. 98) is DENIED; and 2 2. Plaintiff’s “Request for Specific Date to the April 19, 2022 10:30 A.M. Evidentiary 3 Hearing and Access to the Law Library” (Doc. 99) is DENIED. 4 IT IS SO ORDERED. 5
6 Dated: April 4, 2022 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 7
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