The opinion of the court was delivered by: Hon. William McCurine, Jr. U.S. Magistrate Judge United States District Court
ORDER DENYING PLAINTIFF'S MOTION TO COMPEL [Doc. No. 33], PLAINTIFF'S REQUEST FOR JUDICIAL NOTICE [Doc. 33-1], AND PLAINTIFF'S REQUEST FOR APPOINTMENT OF COUNSEL [Doc. No. 31]
Plaintiff Bryan E. Ransom, an inmate proceeding pro se and in forma pauperis, has filed suit under 42 U.S.C. §1983. Plaintiff has filed a Motion for Appointment of Counsel [Doc. No. 31.]. Plaintiff has also filed a Motion to Compel Discovery [Doc. 33] and further responses to already propounded discovery. Included in Plaintiff's discovery motion is a Request for Judicial Notice. [Doc. No. 33-1]. Defendant has filed an opposition to Plaintiff's discovery motion. [Doc. 27].
Rule 26 authorizes a party to "obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense." FED. R. CIV. PROC. 26(b)(1). However, the right to discovery must be limited when: 1) the information sought is unreasonably cumulative or can be obtained from a less burdensome source; 2) the party seeking discovery has had ample opportunity to obtain it; or 3) the burden outweighs the value. FED. R. CIV. PROC. 26(b)(2)(C).
A. Plaintiff's Motion to Compel as to Plaintiff's RFA Nos. 14 & 16
Plaintiff argues further discovery must be compelled in response to Plaintiff's Request for Admissions Nos. 14 & 16. The Plaintiff's Requests and the Defendant's Responses are as follows:
"Request for Admission No. 14:
Please admit that the CDC 602, dated 12-9-96 and marked as Exhibit D is authentic. Response to Request for Admission No. 14: Unable to admit or deny. Defendant Santiago is informed and believes that Exhibit D is not part of Plaintiff's current prison records, and that prison officials at Donovan purge such records after ten years....
Request for Admission No. 16: Please admit that Plaintiff's 8/12/06 CDC 602 claiming that he had been misdiagnosed with TB exposure was submitted prior to the 4/5/07 discovery of a negative T.B. skin test.
Response to Request for Admission No. 16: Unable to admit or deny. Defendant Santiago is informed and believes that Exhibit E is not part of Plaintiff's current prison records, and that prison officials at Donovan purge such records after ten years." [Doc. 33, Mot. to Compel at 13]
With regards to Request for Admission No. 14, Plaintiff argues further discovery must be compelled since the CDC 602 form bears a stamp showing it was received by the Calipatria State Prison Appeals Office for formal review on March 5, 1997. [Doc. 33; Mot. to Compel at 6]. Plaintiff asserts that when a CDC 602 is accepted for formal review, a copy of it is placed in the inmate's central file, which Defendant has in his possession. [Doc. 33; Mot. to Compel at 6-7]. Finally, Plaintiff asserts authentication of the document is necessary in order to present it as evidence of the medical staff's awareness of Plaintiff's negative reaction to the INH treatment. [Doc. 33; Mot. to Compel at 7].
Defendant notes the CDC 602 form in question does not bear a formal log number and, based on conversations with Appeals Coordinators, concludes the complaint was either resolved informally or not accepted for formal review. [Doc. 27; Opp. Mot. to Compel at 4]. Further, Defendant argues the form was likely purged from prison records pursuant to prison policy to purge records after ten years. [Doc. 27; Opp. Mot. to Compel at 4]. Defendant also asserts a review of Plaintiff's central file revealed the CDC 602 form in question was not recorded in that file. [Doc. 27; Opp. Mot. to Compel at 4]. Consequently, Defendant asserts the response of "unable to admit or deny" was appropriate since Defendant is unable to conclusively verify the authenticity of the document.
In connection with Request for Admission No. 16, Plaintiff argues there is no reason why the particular CDC 602 form was purged. [Doc. 33; Mot. to Compel at 7-8]. Plaintiff argues since any prison record purging policy would be inapplicable to a CDC 602 form less than ten years old, and since authentication is necessary to present the form as evidence of the medical staff's awareness, further discovery must be compelled. [Doc. 33; Mot. to Compel at 8].
Defendant responds by asserting the CDC 602 was likely resolved at the informal level since it was not assigned a log number and the request for formal review section was not filled out. [Doc. 27; Opp. Mot. to Compel at 5]. Defendant asserts the particular form was not found in Plaintiff's central file. [Doc. 27; Opp. Mot. to Compel at 5]. Defendant also acknowledges the section of the response concerning the record purge policy was unnecessary and irrelevant to Defendant's actual response of "unable to admit or deny." [Doc. 27; Opp. Mot. to Compel at 5, fn.3]. However, Defendant asserts its inability to conclusively authenticate the document justifies an answer of "unable ...