The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Plaintiff, a state prisoner proceeding pro se, seeks relief under 42 U.S.C. § 1983. Pending before the court is defendants' motion to compel discovery responses, filed on August 10, 2009, to which plaintiff initially failed to file any opposition. The court, on December 8, 2009, ordered plaintiff to show cause within fourteen days for his failure to oppose the motion and to file any opposition to the motion. Plaintiff responded to the show cause order in two filings on December 21, 2009. The court will find that plaintiff has discharged the show cause order although it is not entirely convincing that the alleged interruption of plaintiff's "psychological medication" forestalled his ability to file an opposition at the appropriate time.*fn1
Defendants filed their reply on December 29, 2009. Plaintiff filed a putative "counter claim" to the reply, on January 27, 2010, which will not be considered as it is not an apposite filing in the context of a motion to compel.
In reviewing the motion, the court determined that defendants had erroneously omitted the exhibits identified as their discovery requests and plaintiff's responses which were referenced in the deputy attorney general's declaration supporting the motion. By Order, filed on February 17, 2010, the court gave defendants five days to (belatedly) submit the exhibits, which defendants did on February 19, 2010. Also pending before the court is plaintiff's "motion for preliminary injunction and or temporary restraining order," filed on January 29, 2010. This motion is not yet submitted. By Order, filed on February 17, 2010, defendants have been given fourteen days to respond to the motion.
Plaintiff's claims have been previously set forth in Findings and Recommendations, filed on February 9, 2009, pp. 1-2, adopted by Order, filed on March 12, 2009. This action, filed on 4/12/06, now proceeds on plaintiff's second amended complaint, filed on 6/13/07, as modified by the order, filed on 6/27/08, dismissing several defendants and all claims except for an Eighth Amendment claim against defendants Dr. Hunt and Dr. Peterson for their alleged failure to provide adequate medical care for plaintiff, i.e., in the form of a medical chrono permitting plaintiff not to wear newly issued clothing which has large painted lettering that caused plaintiff to break out in rashes.
Specifically, plaintiff alleges that, on 1/14/04, while he was incarcerated at R.J. Donovan (RJD), all inmates were ordered to exchange their state-issued pants and shirts for new-styled pants and shirts that had large stenciled lettering. On 1/16/04, plaintiff began to itch where the large lettering was located and submitted a health care request for a chrono that would permit plaintiff to wear the old-style pants. On 1/22/04, plaintiff showed defendant Hunt his leg and back rashes. Defendant Hunt gave plaintiff skin cream but, stating that the new clothing was a custody issue, refused to provide a chrono for plaintiff not to be required to wear the new clothing. Second Amended Complaint (SAC), p. 3.
Following his appeal of the issue, filed on 2/17/04, plaintiff was seen, on 2/25/05, by defendant Peterson, a dermatologist, who, evidently without accessing plaintiff's medical history with regard to rashes, also stated that he could not provide plaintiff with a chrono (per a Dr. Ritter, not a defendant), but did give plaintiff skin cream. The actions by these defendants violated plaintiff's Eighth Amendment rights. SAC, p. 4.
Plaintiff has since been transferred from RJD to California Men's Colony (CMCE) to California Medical Facility-Vacaville (CMF).*fn2 Plaintiff's subsequent prison appeals have evidently been denied, and plaintiff has been subjected to pain and suffering in the form of "itching and scratching," as a result of not being excepted from wearing the newer clothing with the large stenciled lettering. Plaintiff seeks declaratory and injunctive relief, as well as money damages. SAC, pp. 4-7.
Defendants move for an order compelling plaintiff to further respond to defendant Hunt's Interrogatories nos. 1, 10, 13, 15, 17, 19 and 22, directed to plaintiff, and to nos. 1 and 2 of the defendants' requests for admission; defendants also seek an order to compel plaintiff to respond to set one of the defendants' requests for production of documents. Notice of Motion, p. 1. Defendants further move for an order modifying the scheduling order to allow discovery to continue for an additional period to permit defendants to file another motion to compel, if necessary, and to prepare and file a dispositive motion after receiving plaintiff's complete discovery responses. Id., at 1-2. This request has essentially previously been granted in an Order, filed on December 15, 2009, insofar as defendants Hunt and Peterson have been granted a forty-five day extension of time from the date the court rules on the pending motion to compel further discovery responses and plaintiff serves any such responses if any portion of the motion is granted. There will be no further extension of the discovery deadline, however, beyond the twenty-eight days plaintiff has been directed to serve some amended responses. (See below).
The scope of discovery under Fed. R. Civ. P. 26(b)(1) is broad. Discovery may be obtained as to any unprivileged matter "relevant to any party's claim or defense...." Id. Discovery may be sought of relevant information not admissible at trial "if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id. The court, however, may limit discovery if it "....is unreasonably cumulative or duplicative," or can be obtained from another source "that is more convenient, less burdensome, or less expensive"; or if the party who seeks discovery "has had ample opportunity to obtain the information by discovery...."; or if the proposed discovery is overly burdensome. Fed. R. Civ. P. 26(b)(2) (C)(i)(ii) and (iii).
The following of plaintiff's responses to the specific interrogatories propounded by defendant Hunt*fn3 set forth below are at issue:
No. 1: State each and every fact to support your claim that the PRISON CLOTHING caused rashes on your body. [See Docket No. 56-2, p.8]
Response: Plaintiff response to each and every fact to support claim PRISON CLOTHING caused rash, is in FACTS of second amended complaint, which verified complaint may be used as opposing affidavit under Rule 56 McElyea v. Babbitt, 833 F.2d 196-997-98 (9th Cir. 1987)[.] To function as an opposing affidavit[,] however, the verified complaint must be based on personal knowledge and set forth specific "facts" admissible in evidence. Lew v. Kona Hosp., 754 F.2d 1420, 1423 (9th Cir. 1985)[.] Plaintiff Wilson's 'FACTS' in complaint are not based pur[el]y on belief. Columbia Pictures Indus., Inc., v. Professional Real Estate Investors Inc., 944 F.2d 1525, 1529 (9th Cir. 1991).
Plaintiff Wilson has stated 'FACTS' to the best of his ability and in certified complaint, and in the RESPONSE to Defendant Hunt's Interrogatory ...