The opinion of the court was delivered by: Honorable Mikel H. Williams United States Magistrate Judge
REPORT and RECOMMENDATION and ORDER
Currently pending before the Court are Plaintiff's Motion for Discovery (Docket No. 47), Plaintiff's Motion for Court Order or Subpoena (Docket No. 48), Defendants' Motion to Dismiss Action or Claims Based on Plaintiff's Failure to Obey Court Orders (Docket No. 49), Plaintiff's Motion for Appointment of Counsel (Docket No. 50), and Plaintiff's Contemporaneous Objection and Motion for Informal Discovery Compliance (Docket No. 54).
Plaintiff Rafael Ordaz's § 1983 stems from allegations that Defendants O'Brien and Tate were deliberately indifferent to his medical needs. During the course of Plaintiff's deposition on October 7, 2008, he indicated that he was also asserting claims for medical malpractice and discrimination. On September 8, 2009, the Court issued an order denying Defendants' motion to dismiss and ordered the parties to confer in effort to resolve their remaining discovery disputes. The parties talked over the telephone and exchanged lettersin an effort to resolve their discovery disputes. Some matters remain unresolved and motions have been filed in regard to these discovery issues.
Plaintiff has filed several motions seeking discovery (Docket No. 47, 48 & 54). Plaintiff complains that documents from his central and medical files are missing, including medical records, and that Defendants have failed to produce these documents (Docket No. 48). Plaintiff also seeks an order requiring Defendantsto respond to set-one of his interrogatories. (Docket No. 54). Lastly, Plaintiff seeks appointment of counsel, claiming that he suffers from serious mental illnesses and is confined to a wheelchair (Docket No. 50). Defendants have filed a motion to dismiss seeking that either the action in its entirety be dismissed, or at the least, Plaintiff's claims for medical malpractice/negligence and discrimination be dismissed because Plaintiff has failed to comply with the Court's Order (Docket No. 46) and has not produced any documents nor has he exchanged information in support of his claim for discrimination and state law negligence. (Docket No. 49).
A. Plaintiff's Discovery Motions
Plaintiff contends that there are documents missing from the files turned over by Defendants. Plaintiff seeks a court order compelling the production of documents, to which the Defendants respond that they have turned over all the documents they have access to. If Defendants have anything further that they have not produced that is relevant to the claims and issues in the case, then they shall provide it to Plaintiff within 14 days of this order. However, Plaintiff is reminded that a party cannot produce what it does not have. Plaintiff's motions (Docket Nos. 47 & 48) are granted in part and denied in part.
In response to Plaintiff's motion to compel response to interrogatories, Defendants argue that the motion was not filed before the close of discovery on November 23, 2009 and Plaintiff did not timely serve his interrogatories, that is, he did not serve them 45 days before the discovery deadline as required by Court order (Docket No. 30, 46). The Court agrees that Plaintiff's motion was not timely filed and that the interrogatories were not filed within the time set by earlier order. Moreover, the Court has reviewed Plaintiff's interrogatories and finds that they are not reasonably calculated to lead to the discovery of admissible evidence as required by Rule 26 as they are argumentative and conclusory. Plaintiff's motion (Docket No. 54) is denied.
B. Defendants' Motion to Dismiss
Defendants seek dismissal of this case due to Plaintiff's failure to comply with the Court's order to produce documents and exchange information. Defendants claim they have been prejudiced by Plaintiff's continued failure to cooperate with discovery. During the course of the parties "meet and confer," after Defendants produced the central and medical files in their possession, Plaintiff stated that he had some medical documents in his possession that were not in the files produced by Defendants. Plaintiff has not provided these documents to Defendants. Defendants also submit that Plaintiff had previously represented that he had no documents in his possession and now claims that he has medical documents relevant to his claims.
Dismissal of an action is an available sanction if a party fails to obey an order to provide discovery. Fed. R. Civ. P. 37(b)(2)(A)(v). However, "dismissal is authorized only in extreme circumstances and only where the violation is due to willfulness, bad faith, or fault of the party." In re Exxon Valdez, 102 F.3d 429, 432 (9th Cir. 1996) (internal citations and punctuation omitted).
Plaintiff shall be given 14 days from date of this Order to provide to Defendants any documents that he has in his possession that have not been turned over to Defendants and to provide any additional information regarding his negligence and discrimination claims. Plaintiff shall indicate to defense counsel whether he is unable to make copies of the documents in his possession. In that situation, Plaintiff and defense counsel should arrange for defense counsel to obtain these documents from Plaintiff in order to make copies. If these documents are not provided to Defendants, Plaintiff will be ...