1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DARYL HICKS, No. 2:22-cv-0903 TLN CSK P 12 Plaintiff, 13 v. ORDER 14 PLESHCHUK, et al., 15 Defendants. 16 17 Plaintiff is a former state prisoner proceeding pro se. Defendant Powell’s fully briefed 18 motion to compel discovery responses is before the Court. (ECF No. 42.) As discussed below, 19 defendant’s motion is granted. 20 I. PLAINTIFF’S ALLEGATIONS 21 This action proceeds on plaintiff’s second amended complaint against defendants 22 Pleshchuk and Powell, alleging that each defendant was deliberately indifferent to plaintiff’s 23 serious mental health needs in violation of the Eighth Amendment. 24 II. BACKGROUND 25 On November 21, 2024, counsel for defendant Powell filed a motion to compel discovery 26 responses alleging that plaintiff failed to timely respond to two sets of written discovery served on 27 / / / 28 / / / 1 plaintiff on August 8, 2024.1 (ECF No. 42-1 at 1.) Plaintiff filed an opposition on December 30, 2 2024, and defendant Powell filed a reply on January 8, 2025. (ECF Nos. 49, 50.) 3 III. MOTION TO COMPEL 4 A. The Parties’ Positions 5 Defendant Powell seeks to compel responses to defendant Powell’s Special 6 Interrogatories, Set One, and Request for Production of Documents, Set One, both served on 7 plaintiff on August 8, 2024. (ECF No. 42-1 at 2.) Plaintiff did not respond to any of these 8 discovery requests. (Id.) 9 In his opposition, signed December 22, 2024, plaintiff claims he served responses to 10 defendant Powell’s request for admissions on November 4, 2024. (ECF No. 49 at 2.) Plaintiff 11 states he mailed a meet and confer letter to counsel on November 18, 2024, requesting an 12 extension of time until December 31, 2024, to respond to the discovery because plaintiff had 13 twice requested Olson reviews2 for offender records and health records, but no review had yet 14 been scheduled. (Id. at 3.) Plaintiff asks the Court to deny the motion to compel “as 15 unreasonable, premature and in bad faith.” (Id.) Plaintiff claims his request for 45 day extension 16 of time to December 31, 2024 “is reasonable and made in good faith under the circumstances.” 17 (Id.) 18 Defendant Powell replies that plaintiff’s opposition is untimely and should be denied. 19 (ECF No. 50 at 1.) Further, defendant argues that plaintiff’s opposition, which includes 20 conclusory and irrelevant arguments, fails to include any facts or information that would excuse 21 or justify plaintiff’s failure to respond to defendant’s discovery requests. (Id. at 2.) Specifically, 22 defendant contends plaintiff’s argument concerning the request for admissions is not relevant 23 because defendant did not move to compel responses to the request for admissions. (ECF No. 50 24 1 In his reply, defendant Powell withdrew the motion to compel plaintiff to provide the signed 25 Authorization for Release of plaintiff’s Offender Central File and the signed Release of Protected Health Information, both served on plaintiff on October 18, 2024. (ECF No. 50 at 1 n.1, 2.) 26 Therefore, this issue is not addressed here. 27 2 An Olson review refers to the right of California inmates to inspect and copy non-confidential records maintained in their central and medical files, as established by In re Olson (1974) 37 Cal. 28 App. 3d 783, 112 Cal. Rptr. 579. 1 at 2.) As to plaintiff’s failure to respond to defendant Powell’s Special Interrogatories and 2 Request for Production of Documents, defendant argues that over five months have elapsed, and 3 plaintiff has still not responded. Defendant Powell contends that plaintiff’s belated request for 4 extension of time should be denied because he has not responded to the outstanding discovery 5 requests. 6 B. Governing Rules 7 A motion to compel may be made if “a party fails to answer an interrogatory submitted 8 under Rule 33; or a party fails to produce documents or fails to respond that inspection will be 9 permitted . . . as requested under Rule 34.” Fed. R. Civ. P. 37(a)(3)(B)(iii)-(iv). Rules 33 and 34 10 require that a responding party serve its answers and any objections to interrogatory requests and 11 respond in writing to any production requests within 30 days after being served with the requests, 12 unless a different timeframe is stipulated to or ordered by the court. See Fed. R. Civ. P. 33(b)(2); 13 Fed. R. Civ. P. 34(b)(2)(A). Unless the court orders otherwise, to serve a party that is represented 14 by an attorney, service must be made to the attorney. See Fed. R. Civ. P. 5(b)(1) and (b)(2)(A)- 15 (F). 16 C. Discussion 17 First, defendant is correct that plaintiff’s opposition is untimely. Under Local Rule 230(l), 18 plaintiff was required to file his opposition 21 days after defendant Powell served the motion to 19 compel discovery responses. L.R. 230(l). The motion to compel discovery responses was served 20 on November 21, 2024; thus, plaintiff’s opposition was due on or before December 12, 2024. 21 Although plaintiff’s proof of service is dated December 15, 2024, plaintiff signed the opposition 22 on December 22, 2024. (ECF No. 49 at 4, 5.) Plaintiff could not have signed the opposition after 23 he mailed it. Thus, the Court considers December 22, 2024 as the filed date under the mailbox 24 rule. 3 Plaintiff’s opposition was untimely because it was filed 11 days after the deadline.
25 3 Under the prison mailbox rule, a pleading filed by a pro se prisoner is deemed to be filed as of the date the prison delivered it to prison authorities for mailing. See Houston v. Lack, 487 U.S. 26 266, 270 (1988). When a pro se prisoner gives prison authorities a pleading to mail to court, the 27 court may deem the pleading constructively filed on the date it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) (citation omitted). 28 1 However, because plaintiff is a prisoner proceeding pro se, the Court will consider his untimely 2 opposition. 3 Second, defendants are correct that plaintiff’s argument concerning the request for 4 admissions is not relevant to the instant motion to compel discovery responses. 5 Third, plaintiff claims he sent a meet and confer letter to counsel on November 18, 2024, 6 requesting a 45 day extension of time to respond based on his inability to obtain an Olson review. 7 (ECF No. 49 at 2.) But the outstanding discovery requests were propounded to plaintiff on 8 August 8, 2024. Plaintiff provides no explanation for his three month delay in seeking such 9 extension. In addition, plaintiff did not provide a copy of the letter he sent counsel, and did not 10 provide a copy of his two requests for Olson reviews. Plaintiff does not set forth any other steps 11 he took to inquire why the Olson requests were not granted, or to demonstrate his diligence in 12 obtaining the discovery responses. In addition, some of the discovery requests sought 13 information that should be known to plaintiff because he brought this lawsuit against defendant 14 Powell. For example, some interrogatories sought “all facts” plaintiff contends support the 15 allegations in Claims 1 and 2, any injuries plaintiff contends defendant Powell’s actions caused, 16 facts supporting plaintiff’s claims for damages and what steps plaintiff took, if any, to mitigate his 17 damages. (ECF No. 43 at 4-6.) Answering such interrogatories would not require review of 18 plaintiff’s offender records or CDCR health records.
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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 DARYL HICKS, No. 2:22-cv-0903 TLN CSK P 12 Plaintiff, 13 v. ORDER 14 PLESHCHUK, et al., 15 Defendants. 16 17 Plaintiff is a former state prisoner proceeding pro se. Defendant Powell’s fully briefed 18 motion to compel discovery responses is before the Court. (ECF No. 42.) As discussed below, 19 defendant’s motion is granted. 20 I. PLAINTIFF’S ALLEGATIONS 21 This action proceeds on plaintiff’s second amended complaint against defendants 22 Pleshchuk and Powell, alleging that each defendant was deliberately indifferent to plaintiff’s 23 serious mental health needs in violation of the Eighth Amendment. 24 II. BACKGROUND 25 On November 21, 2024, counsel for defendant Powell filed a motion to compel discovery 26 responses alleging that plaintiff failed to timely respond to two sets of written discovery served on 27 / / / 28 / / / 1 plaintiff on August 8, 2024.1 (ECF No. 42-1 at 1.) Plaintiff filed an opposition on December 30, 2 2024, and defendant Powell filed a reply on January 8, 2025. (ECF Nos. 49, 50.) 3 III. MOTION TO COMPEL 4 A. The Parties’ Positions 5 Defendant Powell seeks to compel responses to defendant Powell’s Special 6 Interrogatories, Set One, and Request for Production of Documents, Set One, both served on 7 plaintiff on August 8, 2024. (ECF No. 42-1 at 2.) Plaintiff did not respond to any of these 8 discovery requests. (Id.) 9 In his opposition, signed December 22, 2024, plaintiff claims he served responses to 10 defendant Powell’s request for admissions on November 4, 2024. (ECF No. 49 at 2.) Plaintiff 11 states he mailed a meet and confer letter to counsel on November 18, 2024, requesting an 12 extension of time until December 31, 2024, to respond to the discovery because plaintiff had 13 twice requested Olson reviews2 for offender records and health records, but no review had yet 14 been scheduled. (Id. at 3.) Plaintiff asks the Court to deny the motion to compel “as 15 unreasonable, premature and in bad faith.” (Id.) Plaintiff claims his request for 45 day extension 16 of time to December 31, 2024 “is reasonable and made in good faith under the circumstances.” 17 (Id.) 18 Defendant Powell replies that plaintiff’s opposition is untimely and should be denied. 19 (ECF No. 50 at 1.) Further, defendant argues that plaintiff’s opposition, which includes 20 conclusory and irrelevant arguments, fails to include any facts or information that would excuse 21 or justify plaintiff’s failure to respond to defendant’s discovery requests. (Id. at 2.) Specifically, 22 defendant contends plaintiff’s argument concerning the request for admissions is not relevant 23 because defendant did not move to compel responses to the request for admissions. (ECF No. 50 24 1 In his reply, defendant Powell withdrew the motion to compel plaintiff to provide the signed 25 Authorization for Release of plaintiff’s Offender Central File and the signed Release of Protected Health Information, both served on plaintiff on October 18, 2024. (ECF No. 50 at 1 n.1, 2.) 26 Therefore, this issue is not addressed here. 27 2 An Olson review refers to the right of California inmates to inspect and copy non-confidential records maintained in their central and medical files, as established by In re Olson (1974) 37 Cal. 28 App. 3d 783, 112 Cal. Rptr. 579. 1 at 2.) As to plaintiff’s failure to respond to defendant Powell’s Special Interrogatories and 2 Request for Production of Documents, defendant argues that over five months have elapsed, and 3 plaintiff has still not responded. Defendant Powell contends that plaintiff’s belated request for 4 extension of time should be denied because he has not responded to the outstanding discovery 5 requests. 6 B. Governing Rules 7 A motion to compel may be made if “a party fails to answer an interrogatory submitted 8 under Rule 33; or a party fails to produce documents or fails to respond that inspection will be 9 permitted . . . as requested under Rule 34.” Fed. R. Civ. P. 37(a)(3)(B)(iii)-(iv). Rules 33 and 34 10 require that a responding party serve its answers and any objections to interrogatory requests and 11 respond in writing to any production requests within 30 days after being served with the requests, 12 unless a different timeframe is stipulated to or ordered by the court. See Fed. R. Civ. P. 33(b)(2); 13 Fed. R. Civ. P. 34(b)(2)(A). Unless the court orders otherwise, to serve a party that is represented 14 by an attorney, service must be made to the attorney. See Fed. R. Civ. P. 5(b)(1) and (b)(2)(A)- 15 (F). 16 C. Discussion 17 First, defendant is correct that plaintiff’s opposition is untimely. Under Local Rule 230(l), 18 plaintiff was required to file his opposition 21 days after defendant Powell served the motion to 19 compel discovery responses. L.R. 230(l). The motion to compel discovery responses was served 20 on November 21, 2024; thus, plaintiff’s opposition was due on or before December 12, 2024. 21 Although plaintiff’s proof of service is dated December 15, 2024, plaintiff signed the opposition 22 on December 22, 2024. (ECF No. 49 at 4, 5.) Plaintiff could not have signed the opposition after 23 he mailed it. Thus, the Court considers December 22, 2024 as the filed date under the mailbox 24 rule. 3 Plaintiff’s opposition was untimely because it was filed 11 days after the deadline.
25 3 Under the prison mailbox rule, a pleading filed by a pro se prisoner is deemed to be filed as of the date the prison delivered it to prison authorities for mailing. See Houston v. Lack, 487 U.S. 26 266, 270 (1988). When a pro se prisoner gives prison authorities a pleading to mail to court, the 27 court may deem the pleading constructively filed on the date it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) (citation omitted). 28 1 However, because plaintiff is a prisoner proceeding pro se, the Court will consider his untimely 2 opposition. 3 Second, defendants are correct that plaintiff’s argument concerning the request for 4 admissions is not relevant to the instant motion to compel discovery responses. 5 Third, plaintiff claims he sent a meet and confer letter to counsel on November 18, 2024, 6 requesting a 45 day extension of time to respond based on his inability to obtain an Olson review. 7 (ECF No. 49 at 2.) But the outstanding discovery requests were propounded to plaintiff on 8 August 8, 2024. Plaintiff provides no explanation for his three month delay in seeking such 9 extension. In addition, plaintiff did not provide a copy of the letter he sent counsel, and did not 10 provide a copy of his two requests for Olson reviews. Plaintiff does not set forth any other steps 11 he took to inquire why the Olson requests were not granted, or to demonstrate his diligence in 12 obtaining the discovery responses. In addition, some of the discovery requests sought 13 information that should be known to plaintiff because he brought this lawsuit against defendant 14 Powell. For example, some interrogatories sought “all facts” plaintiff contends support the 15 allegations in Claims 1 and 2, any injuries plaintiff contends defendant Powell’s actions caused, 16 facts supporting plaintiff’s claims for damages and what steps plaintiff took, if any, to mitigate his 17 damages. (ECF No. 43 at 4-6.) Answering such interrogatories would not require review of 18 plaintiff’s offender records or CDCR health records. Similarly, documents responsive to 19 defendant Powell’s requests Nos. 9 and 10, seeking documents plaintiff has sent or received 20 would also not be in plaintiff’s offender or health records. (ECF No. 43 at 12.) Plaintiff was 21 required to make a good faith effort to respond to the discovery requests, but fails to demonstrate 22 he took such efforts. In addition, plaintiff failed to articulate any specific, legally valid objection 23 to a particular discovery request, and wholly failed to respond to the discovery sought. Therefore, 24 defendant Powell’s motion to compel discovery responses is granted. Within thirty days from the 25 date of this order, plaintiff shall provide responses to defendant Powell’s Special Interrogatories, 26 Set One, and Request for Production of Documents, Set One, without objection. 27 Finally, plaintiff is cautioned that he is required to cooperate in discovery. Failure to 28 cooperate in discovery may result in the imposition of sanctions, including, but not limited to, a 1 || recommendation that this action be dismissed. See Fed. R. Civ. P. 37(b)(2)(A) (sanctions may be 2 || imposed for failure to comply with a discovery order); Fed. R. Civ. P. 37(d)(3) (sanctions may be 3 || imposed for failure to serve answers to interrogatories or to respond to request for production of 4 || documents). 5 | IV. CONCLUSION 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. Defendant Powell’s motion to compel discovery responses (ECF No. 42) is granted; 8 | and 9 2. Within thirty days from the date of this order, plaintiff shall serve plaintiffs responses 10 || to defendant Powell’s Special Interrogatories, Set One, and Request for Production of 11 || Documents, Set One, without objection. Failure to comply with this order may result in the 12 | imposition of sanctions, including a recommendation that this action be dismissed. 13 14 Dated: May 23, 2025 YY 2 Chan Spo 15 CHI SOO KIM 16 /1/hick0903.mte.42 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28