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Montano v. Solomon

October 18, 2010


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Plaintiff is a state prisoner proceeding without counsel in this civil rights action filed on October 19, 2006, pursuant to 42 U.S.C. § 1983. This action proceeds for all purposes pursuant to the authority of the magistrate judge, see 28 U.S.C. § 636(c) (Dkt. No. 30), and was reassigned to the undersigned magistrate judge on February 9, 2010. (Dkt. Nos. 34, 40.) This order addresses the parties' outstanding discovery and other motions.


The case proceeds on plaintiff's Second Amended Complaint ("SAC"), filed June 4, 2008 (Dkt. No. 19), which the court found may state a potentially cognizable Eighth Amendment claim against sole remaining defendant Dr. Richard Tan, M.D. (Dkt. No. 21). Plaintiff alleges that on May 6, 2005, while allegedly suffering side effects to prescriptions for Naproxen and Chlorpheiramine, plaintiff was seen by defendant Dr. Tan, who was serving as a medical doctor at California State Prison ("CSP")-Solano. (SAC (Dkt. No. 19), at pp. 7-8.) Plaintiff alleges that Dr. Tan observed but did not examine plaintiff, then prescribed Baclofen. (Id.) Plaintiff alleges that he took all three prescribed medications that afternoon, and then developed a rash and itching over his entire body. Plaintiff alleges that, while taking a shower, he lost consciousness and fell, sustaining injuries. Plaintiff alleges that his nose was bandaged, but he did not receive any examination or treatment for this teeth/mouth/gums or back, which he states were also hurting. (Id. at 8-9.) Plaintiff claims that defendant Tan was deliberately indifferent to plaintiff's serious medical needs in violation of the Eighth Amendment. (Id. at 10-11.)

Defendant Tan answered the complaint on October 5, 2009. (Dkt. No. 26.) Thereafter, the former magistrate judge set a discovery deadline of February 5, 2010. (Dkt. No. 27.) On February 16, 2010, at the request of both parties, the undersigned extended the discovery deadline from February 5, 2010, to June 11, 2010, and the dispositive motion deadline from April 30, 2010, to September 10, 2010. (Dkt. Nos. 27, 35.) On February 24, 2010, plaintiff filed a motion for sanctions and to compel defendant's responses to Plaintiff's Request for Production (Set One) served on defendant on January 5, 2010. (Dkt. No. 36.) Defendant filed an opposition to the motion on March 12, 2010 (Dkt. No. 37). By order filed May 13, 2010, this court denied plaintiff's motion for the following reasons (set forth in detail because relevant to the matters currently pending):

Plaintiff's production request was served by mail on January 5, 2010. Defendant states that he, like plaintiff, [thereafter] sought an extension of the discovery deadline upon "realizing that the documents and information inmate Montano was seeking would take longer than what was expected." (Dkt. No. 37, at 2; see also Exh. 1.) On February 25, 2010, after the court had extended the deadline, defendant's counsel "wrote a meet and confer letter to inmate Montano advising him that the process to gather the information he was seeking was taking longer than expected and suggested a two-week extension." (Dkt. No. 37, at 3; see also Exh. 2.) The extension was in part required because the requested information required counsel to contact three different prison facilities. (Id.) Plaintiff responded on March 10, 2010, and, having already filed the instant motion on February 19, 2010, declined to agree to the requested extension. (Id. at Exh. 3.) Thereafter, on March 12, 2010, plaintiff was personally served with defendant's verified responses to the production request, the same date defendant filed his opposition to the instant [plaintiff's former] motion. (Id. at Exh. 4.)

Defendant . . . submitted a detailed memorandum explaining that he produced responsive documents that were both relevant and non-privileged, but declined to disclose documents protected by the official information privilege and the privacy rights of third parties. (Dkt. No. 37.) Plaintiff has not responded to this filing, apparently standing on the rationale of his motion that "having been sent a competent motion within the rules, the defendant was obligated to timely and properly respond within the time limitations specified within the Rules." (Dkt. No. 36, at 2.) The court construes both the content of plaintiff's motion and the absence of his reply to mean that he no longer seeks to compel defendant's production, but only seeks sanctions for the delay in the production.

(Dkt. No. 38, at 2.) Concluding that plaintiff sought only sanctions, the court denied plaintiff's motion based on the finding that defendant had now responded to plaintiff's production request and his failure earlier to respond had been substantially justified. The court reasoned (id. at 3):

While defendant's response was more than a month late, it was personally served only two days after plaintiff denied defendant's request to stipulate to an extension of time. By this time, the court had extended the discovery deadline, thus rendering de minimis any prejudice plaintiff may otherwise have experienced. Plaintiff also has sought and obtained extensions of filing deadlines (see Dkt. Nos. 13 and 14, 17 and 18), and the court finds that defendant is entitled to the same deference. Thus, the court finds no basis for awarding sanctions.

Plaintiff responded by filing, on June 7, 2010, an "appeal" and "motion for reconsideration" of the court's May 13, 2010 order, and a request to withdraw his consent to the jurisdiction of the magistrate judge. (Dkt. No. 39.) By order filed June 11, 2010, this court denied plaintiff's appeal, motion and request, but extended the discovery deadline for a period of 21 days solely for the purpose of permitting plaintiff the opportunity to properly file his discovery motion. (Dkt. No. 40.) The court stated (id. at 4):

The court . . . turns to the substance of plaintiff's challenge to the court's discovery ruling. Plaintiff still fails to specify the responses he challenges or the documents he seeks. Therefore, in deference to plaintiff's pro se status, the court will extend the discovery deadline for the limited purpose of permitting plaintiff to file a substantive motion relative to the disputed production request, and to allow defendant time to respond.

Significantly, plaintiff did not file a revised motion to compel discovery, but instead, on July 1, 2010, sought an extension of the June 11, 2010 discovery deadline in order to respond to defendant's discovery requests served on plaintiff on June 11, 2010. (Dkt. No. 42.) The discovery was a request for production of documents and fifty-three interrogatories. Noting that the number of interrogatories was excessive,*fn1 and that the extended discovery deadline had not only expired on June 11, 2010, but the deadline for serving discovery had expired 60 days earlier,*fn2 the court directed defendant to "explain the reasons for the delay and the necessity of the discovery, including the excessive number of interrogatories." (Dkt. No. 44, at 2.)

Defendant responded that he "does not oppose Plaintiff['s] . . . request to extend the discovery deadline so that he can respond to defendants' discovery" (Dkt. No. 45, at 1), and explained:

Defendant misread the Court amended discovery and scheduling order believing that discovery cut-off date was on September 10, 2010 and not June 11, 2010. As for the number of interrogatories, defendant intended to seek leave from the court to serve the additional interrogatories but the request was never filed because defense counsel was distracted by the disappearance of his minor son.

(Dkt. No. 45, at 2, fn. omitted.) Defendant's counsel filed a declaration stating that he was "embroiled in a horrific divorce" that included his wife taking their minor son out of the country.*fn3 Counsel thus contends that his failure to timely propound discovery was due to his excusable neglect, citing Federal Rule of Civil Procedure 6(b),*fn4 and asserts that the information sought by defendant's interrogatories is central to this litigation and permissible under Federal Rules of Civil Procedure 33(a)(1) (authorizing interrogatories in excess of 25 "to the extent consistent with Rule 26(b)(2)"), and Federal Rule of Civil Procedure 26(b)(2)(c), particularly subdivision (iii) (requiring the court to consider whether "the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues").*fn5

While these matters were pending, plaintiff filed, on August 3, 2010, a "Second Motion to Compel Production of Documents" (Dkt. No. 46), again seeking defendant's further responses to plaintiff's Request for Production (Set One), and another Request for Sanctions (Dkt. No. 47). Defendant filed oppositions to both motions. (Dkt. Nos. 48, 49.) Plaintiff then filed a ...

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