1 2 3 4 5 6 7 10 11 LEON HAWKINS, No. 2:19-cv-02295-CKD P 12 Plaintiff, 13 v. ORDER 14 A. SHEARER, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights 18 action filed pursuant to 42 U.S.C. § 1983. Currently pending before the court are plaintiff’s eight 19 separate motions to compel discovery responses from defendants. ECF Nos. 42-48, 51. Plaintiff 20 has also filed a motion for an extension of time to reserve his first set of requests for admissions 21 on defendant Sharp. ECF No. 39. Defendants have filed an opposition to the pending motions. 22 ECF Nos. 49, 53-54, 57. For the reasons explained below, the court will deny plaintiff’s motions 23 and reset the dispositive motions deadline governing this case. 24 This case is proceeding on plaintiff’s complaint alleging an Eighth Amendment excessive 25 force claim against defendants Shearer, Sharp, and Deitchman. See ECF No. 13 (screening 26 order). A discovery and scheduling order was issued on January 11, 2021 and modified by order 27 of March 8, 2021. ECF Nos. 33, 38. The court extended the discovery cut-off date to June 24, 28 2021, by which time all motions necessary to compel discovery were required to be filed. See 1 ECF No. 38. Discovery is currently closed in this action. 2 I. Plaintiff’s Motions to Compel 3 A. Interrogatories 4 In his motions to compel further responses to his interrogatories to each defendant, 5 plaintiff challenges the objections made to his requests concerning all disciplinary actions, 6 inmates appeals, and citizen complaints made against them. ECF Nos. 42-44. Plaintiff does not 7 explain how any of defendants’ objections are not justified, especially considering that the 8 interrogatories include the entire time in which defendants have been employed as correctional 9 officers. Plaintiff simply complains that defendants did not respond to these interrogatories after 10 objecting to them. 11 B. Requests for Production of Documents 12 In separate motions to compel further responses to his requests for production of 13 documents to each defendant, plaintiff challenges defendants’ failure to produce photos and 14 measurements of various items and/or locations. ECF Nos. 45-48.1 Plaintiff also challenges 15 defendants’ objections to his requests for the identifying information of individuals who filed 602 16 appeals, civil suits, personnel reprimands, and citizen complaints against defendants. For the first 17 time, plaintiff attempts to demonstrate why defendants’ responses are inadequate and why the 18 documents requested are discoverable, although he does so in a general and conclusory fashion 19 rather than by addressing each of defendants’ specific objections. Plaintiff contends that the 20 documents requested are “relevant to [the] past or present mistreatment of inmates” by 21 defendants. ECF No. 45 at 4. In his motion to compel defendant Shearer to respond to plaintiff’s 22 second set of requests for production of documents, plaintiff asserts that video surveillance 23 footage of the sexual assault of another inmate is relevant to demonstrate defendant’s “proof of 24 motive, opportunity, intent, preparation, plan, knowledge[,] identify, or absence of mistakes or 25 accidents….” ECF No. 48 at 6. 26 1 The court notes that plaintiff’s Exhibit A attached to his motion for an order compelling 27 discovery against defendant R. Sharp is missing the even numbered pages. See ECF No. 47 at 8- 14. The court assumes, without deciding, that this is due to problems related to prison 28 photocopying services for which plaintiff is not at fault. 1 C. Request for Admissions 2 In a separate motion, plaintiff requests an extension of time to reserve a complete set of 3 his requests for admissions to defendant Sharp because several pages of the original set were 4 missing. ECF No. 39. Although plaintiff indicates that a full and complete set was originally 5 served on defendant Sharp, the response indicates that the “First Set of Requests for Admissions 6 to Defendant Sharp skips from Request No. 7 to Request No. 23.” ECF No. 39 at 14, n. 1. In a 7 subsequently filed motion to compel, plaintiff attached a complete set of the Requests for 8 Admissions. See ECF No. 51 at 7-12. The court notes that the missing requests seek admissions, 9 inter alia, that defendant Sharp used excessive force against plaintiff, that he heard plaintiff state 10 “I got you,” and, that he wrote a narrative report concerning the events at issue in the present 11 case. See ECF No. 51 at 9-11. 12 Defendants’ oppositions to these motions to compel emphasize that plaintiff failed to meet 13 and confer prior to seeking court intervention in the discovery disputes. See ECF Nos. 49, 53-54, 14 57. Additionally, defendants assert that plaintiff failed to specify why their objections are not 15 justified and how his requested discovery is relevant to the excessive force claims at issue in the 16 present case. 17 In lieu of filing a reply to any of defendants’ oppositions to his motions to compel, 18 plaintiff filed a request for a settlement conference. ECF No. 59. However, a review of the 19 docket in this case indicates that a settlement conference was held on January 7, 2021 and that the 20 case did not settle. ECF No. 32. Neither the procedural posture of this case nor plaintiff’s request 21 provide any indication that this case is capable of settlement at this juncture. Therefore, the court 22 will deny plaintiff’s request to schedule a second settlement conference in this matter. 23 II. Legal Standards 24 The Federal Rules of Civil Procedure permit discovery of “any nonprivileged matter that 25 is relevant to any party's claim or defense and proportional to the needs of the case, considering 26 the importance of the issues at stake in the action, the amount in controversy, the parties’ relative 27 access to relevant information, the parties’ resources, the importance of the discovery in resolving 28 the issues, and whether the burden or expense of the proposed discovery outweighs its likely 1 benefit.” Fed. R. Civ. P. 26(b)(1). Such discoverable information need not be admissible at the 2 trial if the discovery appears reasonably calculated to lead to the discovery of admissible 3 evidence. Id. The court may limit discovery if it is “unreasonably cumulative or duplicative, or 4 can be obtained from some other source that is more convenient, less burdensome, or less 5 expensive;” or if the party who seeks discovery “has had ample opportunity to obtain the 6 information by discovery;” or if “the proposed discovery is outside the scope permitted by Rule 7 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C). In a motion to compel, the moving party bears the burden 8 of showing why the other party's responses are inadequate or their objections unjustified. See 9 Williams v. Cate, 2011 WL 6217378 at *1 (E.D. Cal. Dec.14, 2011), citing Ellis v. Cambra, 2008 10 WL 860523 at *4 (E.D. Cal. Mar.27, 2008). 11 III. Analysis 12 Here, the court will deny plaintiff’s motions to compel. First and foremost, plaintiff failed 13 to meet and confer with defendants concerning the discovery disputes before he filed his 14 numerous motions to compel. See ECF No. 33 at 5 (requiring the parties to comply with Rule 37 15 of the Federal Rules of Civil Procedure “[i]f disputes arise about the parties’ obligations to 16 respond to requests for discovery….”).
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1 2 3 4 5 6 7 10 11 LEON HAWKINS, No. 2:19-cv-02295-CKD P 12 Plaintiff, 13 v. ORDER 14 A. SHEARER, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights 18 action filed pursuant to 42 U.S.C. § 1983. Currently pending before the court are plaintiff’s eight 19 separate motions to compel discovery responses from defendants. ECF Nos. 42-48, 51. Plaintiff 20 has also filed a motion for an extension of time to reserve his first set of requests for admissions 21 on defendant Sharp. ECF No. 39. Defendants have filed an opposition to the pending motions. 22 ECF Nos. 49, 53-54, 57. For the reasons explained below, the court will deny plaintiff’s motions 23 and reset the dispositive motions deadline governing this case. 24 This case is proceeding on plaintiff’s complaint alleging an Eighth Amendment excessive 25 force claim against defendants Shearer, Sharp, and Deitchman. See ECF No. 13 (screening 26 order). A discovery and scheduling order was issued on January 11, 2021 and modified by order 27 of March 8, 2021. ECF Nos. 33, 38. The court extended the discovery cut-off date to June 24, 28 2021, by which time all motions necessary to compel discovery were required to be filed. See 1 ECF No. 38. Discovery is currently closed in this action. 2 I. Plaintiff’s Motions to Compel 3 A. Interrogatories 4 In his motions to compel further responses to his interrogatories to each defendant, 5 plaintiff challenges the objections made to his requests concerning all disciplinary actions, 6 inmates appeals, and citizen complaints made against them. ECF Nos. 42-44. Plaintiff does not 7 explain how any of defendants’ objections are not justified, especially considering that the 8 interrogatories include the entire time in which defendants have been employed as correctional 9 officers. Plaintiff simply complains that defendants did not respond to these interrogatories after 10 objecting to them. 11 B. Requests for Production of Documents 12 In separate motions to compel further responses to his requests for production of 13 documents to each defendant, plaintiff challenges defendants’ failure to produce photos and 14 measurements of various items and/or locations. ECF Nos. 45-48.1 Plaintiff also challenges 15 defendants’ objections to his requests for the identifying information of individuals who filed 602 16 appeals, civil suits, personnel reprimands, and citizen complaints against defendants. For the first 17 time, plaintiff attempts to demonstrate why defendants’ responses are inadequate and why the 18 documents requested are discoverable, although he does so in a general and conclusory fashion 19 rather than by addressing each of defendants’ specific objections. Plaintiff contends that the 20 documents requested are “relevant to [the] past or present mistreatment of inmates” by 21 defendants. ECF No. 45 at 4. In his motion to compel defendant Shearer to respond to plaintiff’s 22 second set of requests for production of documents, plaintiff asserts that video surveillance 23 footage of the sexual assault of another inmate is relevant to demonstrate defendant’s “proof of 24 motive, opportunity, intent, preparation, plan, knowledge[,] identify, or absence of mistakes or 25 accidents….” ECF No. 48 at 6. 26 1 The court notes that plaintiff’s Exhibit A attached to his motion for an order compelling 27 discovery against defendant R. Sharp is missing the even numbered pages. See ECF No. 47 at 8- 14. The court assumes, without deciding, that this is due to problems related to prison 28 photocopying services for which plaintiff is not at fault. 1 C. Request for Admissions 2 In a separate motion, plaintiff requests an extension of time to reserve a complete set of 3 his requests for admissions to defendant Sharp because several pages of the original set were 4 missing. ECF No. 39. Although plaintiff indicates that a full and complete set was originally 5 served on defendant Sharp, the response indicates that the “First Set of Requests for Admissions 6 to Defendant Sharp skips from Request No. 7 to Request No. 23.” ECF No. 39 at 14, n. 1. In a 7 subsequently filed motion to compel, plaintiff attached a complete set of the Requests for 8 Admissions. See ECF No. 51 at 7-12. The court notes that the missing requests seek admissions, 9 inter alia, that defendant Sharp used excessive force against plaintiff, that he heard plaintiff state 10 “I got you,” and, that he wrote a narrative report concerning the events at issue in the present 11 case. See ECF No. 51 at 9-11. 12 Defendants’ oppositions to these motions to compel emphasize that plaintiff failed to meet 13 and confer prior to seeking court intervention in the discovery disputes. See ECF Nos. 49, 53-54, 14 57. Additionally, defendants assert that plaintiff failed to specify why their objections are not 15 justified and how his requested discovery is relevant to the excessive force claims at issue in the 16 present case. 17 In lieu of filing a reply to any of defendants’ oppositions to his motions to compel, 18 plaintiff filed a request for a settlement conference. ECF No. 59. However, a review of the 19 docket in this case indicates that a settlement conference was held on January 7, 2021 and that the 20 case did not settle. ECF No. 32. Neither the procedural posture of this case nor plaintiff’s request 21 provide any indication that this case is capable of settlement at this juncture. Therefore, the court 22 will deny plaintiff’s request to schedule a second settlement conference in this matter. 23 II. Legal Standards 24 The Federal Rules of Civil Procedure permit discovery of “any nonprivileged matter that 25 is relevant to any party's claim or defense and proportional to the needs of the case, considering 26 the importance of the issues at stake in the action, the amount in controversy, the parties’ relative 27 access to relevant information, the parties’ resources, the importance of the discovery in resolving 28 the issues, and whether the burden or expense of the proposed discovery outweighs its likely 1 benefit.” Fed. R. Civ. P. 26(b)(1). Such discoverable information need not be admissible at the 2 trial if the discovery appears reasonably calculated to lead to the discovery of admissible 3 evidence. Id. The court may limit discovery if it is “unreasonably cumulative or duplicative, or 4 can be obtained from some other source that is more convenient, less burdensome, or less 5 expensive;” or if the party who seeks discovery “has had ample opportunity to obtain the 6 information by discovery;” or if “the proposed discovery is outside the scope permitted by Rule 7 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C). In a motion to compel, the moving party bears the burden 8 of showing why the other party's responses are inadequate or their objections unjustified. See 9 Williams v. Cate, 2011 WL 6217378 at *1 (E.D. Cal. Dec.14, 2011), citing Ellis v. Cambra, 2008 10 WL 860523 at *4 (E.D. Cal. Mar.27, 2008). 11 III. Analysis 12 Here, the court will deny plaintiff’s motions to compel. First and foremost, plaintiff failed 13 to meet and confer with defendants concerning the discovery disputes before he filed his 14 numerous motions to compel. See ECF No. 33 at 5 (requiring the parties to comply with Rule 37 15 of the Federal Rules of Civil Procedure “[i]f disputes arise about the parties’ obligations to 16 respond to requests for discovery….”). Even when defense counsel reached out in an effort to 17 meet and confer, plaintiff refused to narrow or otherwise modify the scope of the discovery that 18 he was seeking. See ECF No. 54-1 at 2 (Declaration of Andrew Whisnand). Secondly, plaintiff 19 has not met his burden of demonstrating how the requested discovery is relevant to his claims 20 against defendants or how each of their objections is not justified. As noted above, in a motion to 21 compel, the moving party bears the burden of showing why the other party's responses are 22 inadequate or their objections unjustified. See Williams, 2011 WL 6217378 at *1 (“Plaintiff 23 bears the burden of informing the Court ... for each disputed response, why Defendant's objection 24 is not justified.... Plaintiff may not simply assert that he has served discovery responses, that he is 25 dissatisfied, and that he wants an order compelling further responses.”), citing Ellis v. Cambra, 26 2008 WL 860523 at *4 (E.D.Cal. Mar.27, 2008). Defendants’ past or present mistreatment of 27 other inmates is not relevant in determining whether they used excessive force against plaintiff on 28 March 18, 2019, especially considering that plaintiff’s complaint does not involve a sexual 1 | assault. For these reasons, plaintiff's motions to compel will be denied. 2 With respect to plaintiffs motion for an extension of time to reserve his requests for 3 || admissions to defendant Sharp, the court will deny the motion. In doing so, the court first notes 4 || that the requests for admissions concerning the contents of defendant Sharp’s incident report are 5 || duplicative of the report itself. Fed. R. Civ. P. 26(b)(2)(C). The remaining requests for 6 || admissions were covered in additional discovery requests to defendant Sharp and were also the 7 || subject of plaintiffs other motions to compel. See ECF Nos. 43, 47. Because the court has 8 | denied those motions to compel, the court finds that plaintiff has not demonstrated the relevance 9 || of the additional missing requests for admissions. See Fed. R. Civ. P. 26(b)(2)(C)(iii)._ For all 10 || these reasons, the court will deny plaintiff's motion for an extension of time to reserve the 11 || requests for admissions on defendant Sharp. 12 While these motions to compel were pending, the dispositive motions deadline, set by 13 || order of March 8, 2021, passed. In light of this ruling, the court will further amend the discovery 14 | and scheduling order by extending the pretrial motions deadline governing this case. 15 Accordingly, IT IS HEREBY ORDERED that: 16 1. Plaintiff's motion for an extension of time to reserve the Request for Admissions, Set 17 One on defendant Sharp (ECF No. 39) is denied. 18 2. Plaintiff's motions to compel (ECF Nos. 42-48, 51) are denied for the reasons stated 19 herein. 20 3. The court sua sponte amends the discovery and scheduling order in this case by 21 extending the pretrial motions deadline to February 22, 2022. 22 4. Pretrial conference and trial dates will be set, as appropriate, following adjudication of 23 any dispositive motion, or the expiration of time for filing such a motion. 24 | Dated: November 19, 2021 / ae / 4 [iy ai 25 CAROLYNK. DELANEY 2% UNITED STATES MAGISTRATE JUDGE 27 28 12/hawk2295.m2compel.docx