1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DARREN HARRIS, No. 1:19-cv-01409 JLT GSA (PC) 12 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ 13 v. MOTION TO COMPEL; DENYING DEFENDANTS’ REQUEST TO DISREGARD 14 BURNES, et al., PLAINTIFF’S OPPOSITION, AND DIRECTING PLAINTIFF TO PROPERLY 15 Defendants. RESPOND TO DEFENDANTS’ DISCOVERY REQUESTS 16 (ECF Nos. 71, 83 at 4) 17 PLAINTIFF’S SERVICE OF DISCOVERY 18 RESPONSES ON DEFENDANTS DUE NOVEMBER 16, 2023 19 ORDER DIRECTING DEFENDANTS TO 20 FILE NOTICE OF RECEIPT OF PLAINTIFF’S DISCOVERY RESPONSES 21
22 Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed this civil 23 rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States 24 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. It is currently in the 25 discovery phase of the proceedings. 26 Before this Court is Defendants’ Motion to Compel Responses to Request for Production 27 of Documents; Request for Monetary Sanctions; Request to Stay Action (“MTC”). ECF No. 71. 28 1 Plaintiff has filed an Opposition and Supplement (ECF Nos. 74, 82), and Defendants have filed a 2 Reply (ECF No. 83). In their Reply, Defendants also request that Plaintiff’s Opposition to the 3 MTC be disregarded as untimely filed. See id. at 4. 4 For the reasons stated below Defendants’ Motion to Compel will be granted and Plaintiff 5 will be ordered to provide proper and complete responses to Defendants’ discovery requests. 6 However, Defendants’ requests for monetary sanctions and for a stay of discovery proceedings 7 will be denied. Additionally, Defendants’ request that Plaintiff’s Opposition be disregarded as 8 late-filed will also be denied. Finally, Defendants will be ordered to inform the Court as soon as 9 it receives Plaintiff’s discovery responses so that it can calendar a due date for Defendants’ 10 exhaustion-based motion for summary judgment. 11 I. BACKGROUND 12 Plaintiff’s First Amended Complaint (“FAC”) names Correctional Sergeant Burnes and 13 Correctional Officers J. Flores and J. Alejo as defendants in this action. See ECF No. 32 at 2-3. 14 Defendants were all employed at California State Prison – Corcoran (“CSP-Corcoran”) in July 15 2019, the month of the incident in question. Plaintiff alleges that over a three-day period in July 16 2019, Defendants violated his Eighth Amendment right to be free from excessive force when they 17 brutally attacked him leaving him with multiple injuries. See id. at 3-7, 19. Defendants are all 18 being sued in their individual capacities. Id. at 2-3. Plaintiff seeks compensatory and punitive 19 damages as well as injunctive relief. Id. at 27-28. 20 II. PROCEDURAL HISTORY 21 On June 28, 2022, an order directing that this matter proceed against Defendants J. Flores, 22 J. Alejo, and Burnes issued. ECF Nos. 35, 52 (findings and recommendations; order adopting 23 same). Thereafter, a service order issued directing Defendants to file a response to Plaintiff’s 24 FAC. ECF No. 53. 25 Defendants filed their Answer to the FAC on December 30, 2022. ECF No. 66. Shortly 26 thereafter, the Court issued its DSO. ECF No. 68. 27 On February 9, 2023, a Declaration Re: Request for Documents (“Declaration”) filed by 28 Plaintiff was docketed. ECF No. 69. On March 3, 2023, Defendants filed the instant Motion to 1 Compel. ECF No. 71. Their Declaration in Lieu of Reply was filed on April 5, 2023. ECF No. 2 72. On April 24, 2023, Plaintiff’s late-filed Opposition1 to Defendants’ Motion to Compel was 3 docketed. ECF No. 74. 4 On May 11, 2023, the Court granted Defendants’ Motion to Stay Merits-Based Discovery, 5 and it vacated the deadlines in the DSO. ECF Nos. 75, 81 (Defendants’ motion; Court’s grant of 6 same). Thereafter, Plaintiff filed a Supplement to his Opposition. ECF No. 82. Defendants filed 7 a Reply to Plaintiff’s Opposition on May 22, 2023. ECF No. 83. Accordingly, the motion is 8 fully briefed and ready for review. 9 III. DEFENDANTS’ MOTION TO COMPEL 10 A. Plaintiff’s Declaration Re: Request for Documents 11 On February 9, 2023, after discovery had begun, the aforementioned Declaration filed by 12 Plaintiff was docketed. ECF No. 69. The Declaration states in relevant part: 13 I, Darren L. Harris, Plaintiff in above entitle [sic] case, has read the Attorney 14 General’s “REQUEST for DOCUMENTS.” The documents being requested are in 15 [my] C-File / E-File, (SOMS) Strategic Offender’s Management System, and are available to them (the defendants and/or their representatives) at any time. 16 The documents requested are used at my classification hearing every year. The docs can be viewed using the aforementioned Computer System, Same for 17 Interrogatories. . . . . 18 Also, I do not believe sending my “originals”, document [sic] through the 19 mail would be wise for me. The correctional officers have created a pattern & practice to violate my mailing (to & From) the court(s) & attorneys. These 20 violations are ongoing. 21 22 ECF No. 69 at 1-2 (brackets added) (errors in original). 23 B. Defendants’ Motion to Compel 24 Defendants’ motion asks the Court to compel Plaintiff to produce documents and respond 25 to special interrogatories related to whether he exhausted administrative remedies prior to 26
27 1 Although Plaintiff has labeled the document an “Objection to Defendants’ Motion to Compel” (see ECF No. 74 at 1), it is, in fact, an Opposition to Defendants’ MTC. Accordingly, in order to 28 avoid confusion, the Court will refer to the filing as Plaintiff’s Opposition throughout this order. 1 bringing this case. See generally ECF No. 71 at 3-6. They contend that instead of Plaintiff timely 2 filing responses to their discovery requests, he filed the above-referenced Declaration with the 3 Court in which he directed them to his C-File/E-File/SOMS2 and classification documents.3 Id. at 4 3-6; ECF No. 71-1 at 1, ¶ 2 (Decl. of Deputy Attorney General (“DAG”) A.R. Sloan). They 5 further contend that because Plaintiff’s prison file is 7,500 pages in length, and because during the 6 period in question Plaintiff submitted over forty inmate grievances, his response in the 7 Declaration is entirely inadequate. ECF No. 71 at 4; 71-1 at 17-23 (Exh. D - List of Plaintiff’s 8 appeals during relevant period). In addition, Defendants state that Plaintiff has not responded to 9 their efforts in February 2023 to meet and confer about his inadequate discovery responses. ECF 10 No. 71 at 3, 5-6; ECF No. 71-1 at 14-16 (Exh. C - Defendants’ meet and confer letter, dated 11 February 10, 2023). 12 Defendants argue that a party may not refuse to respond to a discovery request on the 13 ground that the requested information is in the possession of the requesting party, or on the basis 14 that information is more readily available to the requesting party. ECF No. 71 at 4 (citation 15 omitted). They further argue that Plaintiff’s refusal to participate in their exhaustion-based 16 discovery prejudices their ability to adequately defend against his substantive claims. Id. at 3. 17 They contend that Plaintiff is in the best position to identify and provide the inmate grievances 18 that are relevant to the claims in his case and that they are in his possession, custody and control. 19 Id. at 4-5. “[T]he grounds for objecting to an interrogatory must be stated with specificity,” 20 Defendants assert. Id. at 5 (citations omitted). Plaintiff’s failure to identify the specific appeals, 21 they argue, constitutes a breach of his discovery obligations. Id. Defendants also assert that 22 access to the specific appeals that are relevant to the claim Plaintiff has raised in this action will 23 serve to streamline analysis both for them and for the Court. Id. 24 25
2 Plaintiff states that “SOMS” stands for “Strategic Offender’s Management System.” See ECF 26 No. 69 at 1. 27 3 Defendants contend that Plaintiff’s referral to his classification documents is irrelevant and insufficient. ECF No. 71 at 5. Appeal documents, they assert, are not contained in classification 28 hearing documents. Id. at 5-6. 1 Finally, Defendants argue that Plaintiff’s inaction has delayed their ability to prepare and 2 file an exhaustion-based motion for summary judgment and has required that they spend time and 3 resources drafting the instant MTC. See ECF No. 71 at 3, 5-6. For these reasons, they contend, 4 their motion should be granted; a discovery order compelling Plaintiff to respond to their 5 discovery requests should issue, and Plaintiff should be ordered to pay monetary sanctions in the 6 amount of $880.00, which is the amount of time and cost it took defense counsel to prepare the 7 instant motion. Id. at 1, 3-4, 6-7. 8 C. Defendants’ Declaration in Lieu of Reply 9 On April 5, 2023, after Plaintiff did not file a response to Defendants’ MTC within the 10 required time period under the Local Rules, counsel for Defendants filed a Declaration In Lieu of 11 Reply, consistent with Local Rule 230(l). See ECF No. 72. In it, DAG A.R. Sloan states that 12 Plaintiff’s last day to file an opposition to Defendants’ MTC was March 27, 2023. Id. at 2. 13 Counsel also states that when Defendants filed the MTC, Plaintiff was provided with the time 14 requirements for opposing their motion, and he was told that his failure to timely oppose it might 15 be deemed a waiver of any opposition to their motion being granted and might result in the 16 imposition of sanctions. Id. As a result, DAG A.R. Sloan asserts, Defendants’ MTC should be 17 deemed submitted unopposed. Id. 18 D. Plaintiff’s Opposition 19 On April 24, 2023, Plaintiff’s Opposition to Defendants’ MTC was docketed. ECF No. 20 74. It was signed by Plaintiff on April 18, 2023. Id. at 3. In it, Plaintiff states that despite his 21 many requests, he is not in possession of his legal documents, legal work-product, and other 22 documents. Id. at 1. He contends that CDCR officials appear to be refusing to return them to him 23 despite the fact that he has requested them multiple times.4 Id. 24 25
4 Plaintiff also states that he did not receive the Court’s scheduling order until April 13, 2023, 26 and that this was well after the April 3, 2023, deadline to amend his pleading. ECF No. 74 at 1. 27 Because the issue in the instant MTC is related to discovery and not to a leave to amend to which Plaintiff may or may not have been entitled, the Court does not address herein leave to amend 28 concerns Plaintiff may be intending to raise. 1 Plaintiff further asserts that at the time the instant Opposition was filed in April 2023, his 2 facility was on lockdown due to the stabbing of a prison lieutenant. ECF No. 74 at 2. He states 3 the lockdown began on April 12, 2023. Id. As a result, he has not had access to anything – not 4 legal work, not the law library – nothing.5 Id. Plaintiff also claims that he filed an earlier 5 Opposition, and he speculates that the reason it was not received by the Court is because prison 6 officials at Folsom State Prison6 (“FSP”) stole it from the mail. Id. 7 In the Opposition, Plaintiff also states that eleven boxes of legal documents of his are 8 missing and/or are being withheld from him, and that he needs to go through them. ECF No. 74 9 at 2. He further states that he told defense counsel that she would be able to review the 10 documents needed through SOMS.7 Id. He states that he is not trying to vex the Court or defense 11 counsel, and he argues that he should not be responsible for state officials’ misconduct. ECF No. 12 74 at 2-3. For these reasons, Plaintiff states, he opposes Defendants’ MTC. Id. at 3. 13 E. Plaintiff’s Supplement to Opposition 14 On May 18, 2023, a Supplement Plaintiff filed to his Opposition was docketed. ECF No. 15 82. The Supplement asserts that on April 25, 2023, Plaintiff received the bulk of his property that 16 was being held by CDCR officials. Id. at 1. However, he states, two or more boxes of his legal 17 documents are still missing. Id. Plaintiff attaches six exhaustion related documents to the 18 Supplement. See ECF No. 82 at 3-164. He states that he has provided the documents to show 19
20 5 Plaintiff does state that he believed the lockdown was scheduled to end on April 26, 2023. ECF No. 74 at 2. Given that it is now October 2023, the Court presumes that the lockdown which 21 Plaintiff states impeded his ability to respond to discovery is now over. 6 It appears that when Defendants filed the instant Motion to Compel on March 3, 2023 (see ECF 22 No. 71), Plaintiff was still housed at FSP. See ECF No. 83-1 at 2, ¶ 5 (Decl. of D. Avalos stating 23 Plaintiff arrived at SVSP on March 15, 2023). Because FSP officials are not defendants in this action, the Court does not address matters 24 related to mail issues Plaintiff either currently has, or may have had with them. See U.S. Const. art. III § 2 (stating jurisdictional case or controversy requirement). The same must be said for 25 similar allegations Plaintiff has made against non-defendant employees at SVSP. See ECF No. 84 (Plaintiff’s Notice (“Ex Parte Communication”) of Mishandling of Legal Mail by SVSP 26 employees). 27 7 The previously referenced February 2023 Declaration Plaintiff filed with the Court, which preceded Defendants’ filing of the MTC, confirms this. See ECF No. 69 (Decl. of Plaintiff 28 stating referral of defense counsel to SOMS). 1 that defense counsel’s assertions are false and that he has, in fact, exhausted his administrative 2 remedies. Id. at 2. He further states that he will try to send counsel a copy of the Supplement, 3 and that if required to submit other documents, he will search through the legal documents that 4 have been given to him and send what he finds.8 See id. 5 F. Defendants’ Reply to Plaintiff’s Opposition 6 On May 22, 2023, Defendants filed a Reply to Plaintiff’s Opposition. ECF No. 83. In it, 7 Defendants argue that their MTC should be granted because Plaintiff’s Opposition fails to provide 8 any legally supported arguments as to why he failed to appropriately respond to their discovery 9 requests. Id. at 1-2. In addition, they argue that: (1) they served Plaintiff with their discovery 10 requests on January 5, 2023, while he was still in possession of his legal property and well before 11 he was transferred to a different facility on March 15, 2023; (2) Plaintiff’s responses to their 12 discovery requests were due before Plaintiff was transferred; (3) Plaintiff was transferred with his 13 excess legal property on March 15, 2023, but he failed to make a request for it until April 12, 14 2023, and (4) Plaintiff is once again in possession of all his legal property. Id. at 2-4. Defendants 15 have provided declarations from former SVSP Receiving and Release Sergeant D. Avalos and 16 SVSP Correctional Sergeant A. Villafuerte in support of their assertions regarding when Plaintiff 17 arrived at SVSP; when his excess legal property arrived; and when Plaintiff informed prison 18 officials that he had an active legal case and that he was missing some of his legal property. See 19 ECF Nos. 83-1, 83-2 (Decls. of D. Avalos and A. Villafuerte, respectively). 20 Defendants argue that because Plaintiff failed to adequately and timely respond to their 21 document and interrogatory requests, the Court should compel Plaintiff to respond to them within 22 thirty days without objection and sanction Plaintiff in the amount of $880.00. ECF No. 83 at 4. 23 In addition, they contend that because Plaintiff’s Opposition is untimely by approximately one 24 month, the court should disregard it. Id. 25 26 27 8 Plaintiff states that he will need to make copies, and that he only has access once a week to the 28 material he needs to access to the courts. ECF No. 82 at 2. 1 IV. APPLICABLE LAW 2 A. Motion to Compel 3 The scope of discovery in federal cases is governed by Federal Rule of Civil Procedure 4 26(b)(1). The current Rule states:
5 (b) Discovery Scope and Limits. 6 (1) Scope in General. Unless otherwise limited by court order, the scope of 7 discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs 8 of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the 9 parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely 10 benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. 11
12 Fed. R. Civ. P. 26(b)(1). 13 In addition, Federal Rule of Civil Procedure 37(a)(3)(B)(iii)-(iv) authorizes motions to 14 compel. It states: 15 (a) Motion for an Order Compelling Disclosure or Discovery. 16 . . . . (3) Specific Motions. 17 (B) To Compel a Discovery Response. A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This 18 motion may be made if: 19 . . . . (iii) a party fails to answer an interrogatory submitted under Rule 33, or 20 (iv) a party fails to produce documents . . . .
21 Fed. R. Civ. P. 37(a)(3)(B)(iii)-(iv). 22 A party seeking to compel discovery has the initial burden to establish that its request is 23 proper under Rule 26(b)(1). If the request is proper, the party resisting discovery has the burden 24 of showing why discovery was denied; they must clarify and support their objections. 25 Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir.1975). General or boilerplate objections, 26 without explanation, are not prohibited but are insufficient as a sole basis for an objection or 27
28 1 privilege claim. Burlington Northern & Santa Fe Ry. v. United States Dist. Court, 408 F.3d 1142, 2 1149 (9th Cir.2005). 3 B. Sanctions 4 With respect to sanctions, Rules 37(a)(5)(A)(i)-(iii); (b)(2)(A)(i)-(vii), and (b)(2)(C), 5 provide multiple examples in which their imposition is warranted. See id. However, as discussed 6 below, each of these Rules also has a discretionary element and/or requires consideration of 7 whether the imposition of sanctions is just. 8 V. DISCUSSION 9 A. Request to Disregard Opposition as Untimely Will Be Denied 10 Defendants’ request in their Reply that the Court disregard Plaintiff’s Opposition to its 11 MTC because it was filed a month late (see ECF No. 83 at 4) will be denied. The MTC was filed 12 in this Court and mailed to Plaintiff at Folsom State Prison on March 3, 2023. See ECF No. 71 at 13 9 (Defendants’ service declaration re: MTC). This gave Plaintiff twenty-one days, plus three – 14 or, until March 27, 2023 – to file an opposition to Defendants’ motion. See Fed. R. Civ. P. 6(d); 15 L.R. 230(1) (mail and filing requirements); see also ECF No. 72 at 2, ¶ 6 (Decl. of DAG A.R. 16 Sloan acknowledging same). 17 Thereafter, on March 15, 2023, Plaintiff was transferred to SVSP. See ECF No. 83 at 3; 18 83-1 at 2, ¶ 6 (Decl. of SVSP Correctional Sergeant D. Avalos,). Ten boxes of Plaintiff’s legal 19 documents later arrived at SVSP on March 23, 2023, and on March 28, 2023. ECF No. 83-1 at 2, 20 ¶ 7 (Decl. of D. Avalos). Importantly, March 28, 2023, was after Plaintiff’s response to 21 Defendants’ MTC was due in this Court. Because Plaintiff’s legal boxes were identified by 22 SVSP as “excess” when they arrived, they were not given to Plaintiff. Instead, they were stored 23 in SVSP’s Receiving and Release. This required Plaintiff to file a request in order to gain access 24 to them. See id. at 2, ¶¶ 3-7 (Decl. of D. Avalos). 25 On April 12, 2023, Plaintiff’s unit at SVSP was placed on lockdown. ECF No. 74 at 2 26 (Plaintiff’s Opposition). The lockdown was scheduled to end on April 26, 2023. Id. Plaintiff’s 27 Opposition was signed and deemed filed on April 18, 2023 (Mailbox rule). See ECF No. 74 at 3 28 (signature date on Plaintiff’s Opposition). 1 Given these facts, it is somewhat understandable that Plaintiff did not file and serve a 2 response to Defendants’ MTC by March 27, 2023, as federal and local rules required. 3 Importantly here, the filing of Plaintiff’s Declaration in February 2023, which appears to be a 4 response (albeit, an improper one) to Defendants’ discovery requests (see ECF No. 69); coupled 5 with the Opposition Plaintiff filed shortly after Defendants filed their Declaration in Lieu of 6 Reply (see ECF No. 74), generally indicate that Plaintiff did not intend to thwart discovery or 7 waive opposition to a grant of Defendants’ MTC. Consequently, Defendants’ request that 8 Plaintiff’s Opposition to their MTC be disregarded will be denied. 9 B. Motion to Compel Must Be Granted 10 Defendants’ Motion to Compel must be granted. Defendants have stated that the primary 11 issue in this case is whether Plaintiff exhausted his administrative remedies prior to bringing suit 12 in this Court. Specifically, defense counsel attests that Plaintiff filed suit in this court days after 13 the incident is alleged to have occurred. ECF No. 71-1 at 2, ¶ 5 (Decl. of DAG A.R. Sloan). 14 Implicit in this assertion is that Plaintiff could not have exhausted his administrative remedies 15 prior to filing the instant action in this Court. As a result, counsel intends to file an exhaustion- 16 based motion for summary judgment on behalf of Defendants, and she will need Plaintiff’s 17 discovery responses in order to do so given the large size of his prison file. Id. 18 To that end, Defendant Burnes’ First Set of Request for Production of Documents 19 propounded by Defendants makes four requests. See ECF No. 71-1 at 5, 7 (Production of 20 Documents cover page; document requests). All of them relate to appeal/grievance forms and 21 correspondence Plaintiff has that relate to the July 2019 Eighth Amendment excessive force claim 22 he has alleged against Defendants and that are relevant to his FAC. See id. In addition, 23 Defendant Burnes’ First Set of Interrogatories makes two inquiries, See ECF No. 71-1 at 10, 12 24 (interrogatories cover page; interrogatories), which ask for log numbers for the appeals / 25 grievances that Plaintiff alleges exhaust his July 2019 excessive force claims against Defendants, 26 as well as log numbers for any other appeals/grievances Plaintiff believes are relevant to the 27 allegations in his FAC. See id. at 12. 28 Defendants’ document and interrogatory requests are relevant to their defense that 1 Plaintiff may not have exhausted his administrative remedies prior to filing suit in this court. See 2 Fed. R. Civ. P. 26(b)(1) (relevance of discovery requirement). As a result, Plaintiff is required to 3 produce them and he will be ordered to do so.9 4 C. Request For Sanctions Will Be Denied 5 Defendants’ request for sanctions against Plaintiff will also be denied. They argue that 6 monetary sanctions against Plaintiff in the amount of $880.00 are warranted under Rules 7 37(a)(5)(A); (b)(2)(A), and (b)(2)(C) because he failed to provide adequate responses to their 8 discovery requests after they had attempted to meet and confer with him on February 10, 2023. 9 ECF No. 71 at 3, 6-7. This, they assert, has led to a delay in their ability to prepare and file an 10 exhaustion-based motion for summary judgment and has led to spending additional time and 11 resources to create the instant MTC. Id. at 6. 12 Rule 37 allows for the imposition of sanctions regardless of whether the actor upon whom 13 they are being imposed has acted in bad faith. See generally Fed. R. Civ. P. 37; see also Hyde & 14 Drath v. Baker, 24 F.3d 1162, 1171 (9th Cir. 1994) (stating court has not required finding of bad 15 faith on part of attorney prior to imposing Rule 37 sanctions); Nationstar Mortgage, LLC v. 16 Flamingo Trails No. 7 Landscape Maintenance Ass’n, 316 F.R.D. 327, 335 (D. Nevada 2016) 17 (citing Hyde). However, the presence or lack of good faith on the part of a party is relevant to 18 whether sanctions should be issued and to what level of severity. See Hyde, 24 F.3d at 1171 19 (stating good or bad faith may be a consideration in determining whether imposition of sanctions 20 would be unjust). Furthermore, the Ninth Circuit gives district courts “particularly wide latitude” 21 when determining whether sanctions are appropriate. Ollier v. Sweetwater Union High School 22 District, 768 F.3d 843, 859 (9th Cir. 2014) (citing Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 23 259 F.3d 1101, 1106 (9th Cir. 2001) (citation omitted); Jeff D. v. Otter, 643 F.3d 278, 289 (9th 24 9 In the Supplement to Plaintiff’s Objections, Plaintiff states that he has attached exhibits that are 25 responsive to Defendants’ discovery requests and which establish that he exhausted his administrative remedies prior to filing this action. See ECF No. 82 at 1-2. The filing of 26 discovery responses with the Court is improper unless directed to do so. See Local Rules 27 250.2(c); 250.3(c); 250.4(c) (generally stating discovery responses shall not be filed in court unless at issue). Therefore, Plaintiff will be required to serve any responsive discovery on 28 Defendants directly. 1 Cir. 2011) (citation omitted) (“[A] district court has wide discretion in controlling discovery.”). 2 The Court agrees with Defendants’ assertion that based on Plaintiff’s statements in his 3 Declaration filed with the Court in February 2023, it appears that Plaintiff had the documents they 4 were requesting in his possession at that time, which was prior to their filing of the MTC in 5 March 2023. See ECF No. 71 at 4 (Defendants’ MTC referencing Plaintiff’s Declaration and 6 stating same). However, Plaintiff’s Declaration also states that he believed prison officials had 7 “created a pattern [and] practice to violate [his] mail,” and that as a result, he did not feel 8 comfortable sending his original documents through the mail. See ECF No. 69 at 1-2 (brackets 9 added). Subsequent statements made by Plaintiff related to prison officials mishandling his mail 10 and legal property are consistent with this assertion. See generally ECF Nos. 74, 82, 84 11 (Plaintiff’s Opposition, Supplement and Notice (“Ex Parte Communication”) of Mishandling of 12 Legal Mail, respectively). 13 Plaintiff’s belief about prison officials’ mishandling of his mail – whether accurate or not 14 – does not excuse his failure to properly respond to Defendants’ discovery requests.10 At the 15 same time however, his failure to provide his original copies of discovery to Defendants, while 16 problematic, does not appear to have been done in bad faith. In addition, Plaintiff’s referral of 17 Defendants to his C-File/E-File/SOMS in the February 2023 Declaration, while also an 18 inappropriate response, arguably constituted a good faith effort on his part to respond to 19 Defendants’ discovery requests given his mistrust of the prison mail system. 20 Sanctions for not obeying a discovery order are discretionary. See Fed. R. Civ. P.
21 10 Furthermore, Plaintiff’s complaint in his Opposition that he did not receive the DSO until April 13, 2023 (see ECF No. 74 at 1) and that this was well after the deadline of April 3, 2023, to 22 amend his pleading garners no sympathy. Plaintiff repeatedly states that on more than one 23 occasion he has returned documents that this Court has mailed to him because prison officials had opened them. See id. at 1-3 (Plaintiff’s Opposition); ECF No. 84 at 1 (Plaintiff’s Notice (“Ex 24 Parte Communication”) of Mishandling of Legal Mail). Three entries on the Court’s docket also indicate that in January 2023, Plaintiff refused the DSO the Court mailed to him, and that in May 25 and June 2023, he twice refused the mailed order granting Defendants’ Motion to Stay Merits- Based Discovery. Documents sent to Plaintiff from this Court are not legal mail. Keenan v. Hall, 26 83 F.3d 1083, 1094 (9th Cir. 1996), opinion amended on denial of reh’g, 135 F.3d 1318 (9th Cir. 27 1998). Therefore, court mailings are not subject the same handling as legal mail would be. Accordingly, any deadlines Plaintiff missed because he improperly refused and returned 28 documents from this Court will not be extended. 1 37(b)(2)(A) (stating court may issue further just orders if party fails to obey order to provide 2 discovery). The aforementioned facts, coupled with the fact that Plaintiff is indigent, would make 3 an award of $880.00 in sanctions against him unjust. See Fed. R. Civ. P. 37(a)(5)(A)(iii) (stating 4 court must not order payment of expenses if circumstances make award unjust); see also Fed. R. 5 Civ. P. 37(b)(2)(C) (stating same). Therefore, Defendants’ request for monetary sanctions will be 6 denied. However, Plaintiff is cautioned that he is to comply with all court orders as well as with 7 all federal and local rules. He is further cautioned that his failure to do so in the future may 8 result in the ultimate sanction, namely, in a recommendation that this matter be dismissed. 9 D. Request to Stay These Proceedings Will Be Denied 10 Defendants’ request that these proceedings be stayed pending resolution of the instant 11 MTC must be denied as moot. On April 26, 2023, Defendants filed a second separate Motion to 12 Stay Merits-Based Discovery. See ECF No. 75. On May 11, 2023, the Court granted the motion. 13 See ECF No. 81. Therefore, the stay request in the instant MTC is moot and will be denied as 14 such. 15 VI. CONCLUSION 16 For the reasons previously stated, Defendants’ Motion to Compel Responses to Request 17 for Production of Documents; Request for Monetary Sanctions; Request to Stay Action will be 18 granted in part and denied in part. Defendants’ Motion to Compel will be granted. However, 19 Defendants’ request for sanctions and request to stay this action will both be denied. Likewise 20 Defendants’ request in their Reply that Plaintiff’s Opposition be disregarded will also be denied. 21 Plaintiff will be ordered to serve complete responses to Defendants’ MTC and to do so 22 within thirty days. In addition, Defendants will be ordered to inform the Court when it receives 23 discovery responses from Plaintiff so that a due date for Defendants’ exhaustion-related motion 24 for summary judgment can be calendared. 25 Accordingly, IT IS HEREBY ORDERED that: 26 1. Defendants’ Motion to Compel Responses to Request for Production of Documents; 27 Request for Monetary Sanctions; Request to Stay Action (ECF No. 71) is GRANTED IN PART 28 AND DENIED IN PART as follows: 1 a. GRANTED to the extent that it requests that Plaintiff be required to serve 2 complete responses to Defendants’ production of documents and interrogatory discovery 3 requests; 4 b. DENIED to the extent that it requests that Plaintiff be sanctioned $880.00 for costs 5 Defendants incurred drafting and filing the instant Motion to Compel, and 6 c. DENIED as moot to the extent that it requests that this matter be stayed pending 7 the resolution of the instant Motion to Compel. 8 2. Defendants’ request in its Reply that Plaintiffs Opposition be disregarded as untimely 9 (see ECF No. 83 at 4) is DENIED, and 10 3. Plaintiff shall serve Defendants with proper, complete responses to their Request for 11 Production of Documents and Requests for Interrogatories by November 16, 2023. 12 Plaintiff is cautioned that failure to timely serve Defendants with proper responses to 13 their production of documents and interrogatory requests may result in a recommendation 14 that this matter be dismissed for failure to obey a court order, and 15 16 4. Upon receipt of Plaintiff’s response to Defendants’ discovery requests, Defendants 17 shall file a notice with the Court informing it of as much so that the Court can then calendar a due 18 date for Defendants’ exhaustion-based motion for summary judgment. 19 IT IS SO ORDERED. 20
21 Dated: October 16, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 22
27 28