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Joseph R. Pulliam v. M. Lozano


January 31, 2011


The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge


Plaintiff Joseph A. Pulliam ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Before the Court are: (1) Plaintiff's Motion to Compel (ECF No. 40); (2) Plaintiff's Motion to Postpone (ECF No. 44); (3) Defendants' Motion to Compel and for Sanctions (ECF No. 41); and (4) Defendants' Request for Extension of Discovery Deadline (ECF No. 41). Each of these motions will be addressed in turn below.


Plaintiff moves to compel Defendants to provide additional responses to his initial request for production, specifically various CDCR reports, decisions on inmate appeals, and disciplinary records. (ECF No. 40.) Defendants contend that they have produced all documents within their custody, control or possession and have thereby satisfied their obligation under the discovery rules. (ECF No. 43.)

If Defendants seek to avoid production by contending that they are not in possession, custody or control of the requested documents, their objection is denied. The specific facts of this action render such an objection unfounded. By virtue of their employment with non-party CDCR, individual defendants are represented by the Attorney General's Office. It is this Court's experience that either individual defendants who are employed by CDCR and/or the Attorney General can generally obtain documents, such as the ones at issue here, from CDCR by requesting them. They have constructive control over the requested documents, and the documents must be produced. See, e.g., Mitchell v. Adams, 2009 U.S. Dist. LEXIS 24289, *24-25, 2009 WL 674348, *9 (E.D. Cal. Mar. 6, 2009) (even though defendant warden was sued in his individual capacity, he had constructive control over requested documents because he had authority to obtain the requested documents from third party CDCR); see also Gray v. Faulkner, 148 F.R.D. 220, 223-24 (N.D. Ind. 1992) (requiring certification that responding parties "have conducted a search for the information reasonably available to them through their agents, attorneys, or others subject to their control and have determined that the information requested either does not exist or that it has been produced.").

If Defendants choose to stand on this objection, they must provide factual support for their assertion that, in spite of their relationship with CDCR, they do not have possession, custody or control of the requested documents. (Defendants should also be mindful of the fact that maintenance of such an objection may preclude them from using the requested documents, or any documents of this kind, as evidence in support of summary judgment, in opposition to any of Plaintiff's positions, and in any way during trial.

See Fed. R. Civ. P. 37(c)(1). Should Defendants stand on this objection and subsequently seek to use the requested documents or like documents, they must-at minimum-supplement their responses and explain the method by which they obtained the documents. Id. They will also be required to demonstrate that the prior objection was in good faith given that they now have and seek to use the requested documents. Fed. R. Civ. P. 26(e)(1).

Accordingly, Plaintiff's Motion to Compel further response to his request for production of documents is granted. Defendants are to provide further response within thirty days from the date of service of this order.


Defendants noticed Plaintiff's deposition for December 20, 2010. Both parties appeared on that date, along with a court reporter, but Plaintiff refused to answer any questions about the case. Plaintiff's refusal was based on the fact that he claimed to have filed a motion for the appointment of counsel and would not be deposed until such motion was resolved by the Court.

It appears Plaintiff may have been referring to the "Motion to Postpone" that he signed on December 6, 2010; it was not received and processed by the Court until December 27, 2010. (ECF No. 42.) In his Motion, Plaintiff acknowledges that Defendants noticed his deposition for December 20, 2010 and asks the Court to "postpone" the taking of his deposition. Plaintiff states that he intends to ask the Court to reconsider its denial of his motion for the appointment of counsel. (Id.) Plaintiff has yet to file such a motion.

Because the Court did not receive Plaintiff's Motion to Postpone until after December 20, 2010, the Motion is moot. Additionally, had Plaintiff sought reconsideration of his motion to appoint counsel, it would have been denied. Plaintiff has not shown that his case meets the "exceptional circumstances" standard. See Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997). Thus far, Plaintiff has represented himself diligently and ably; the Court has no doubt that such performance will continue.

For the reasons stated above, Plaintiff's Motion to Postpone is DENIED as moot.


Because Plaintiff refused to answer any questions during the December 20, 2010 meeting, Defendants have yet to conduct his deposition. Defendants now move for an order compelling Plaintiff's deposition and ask the Court to award costs associated with the filing of this motion.

A. Motion to Compel Deposition

In opposition to the Motion to Compel, Plaintiff argues that Defendants should simply review the allegations in his Complaint to obtain information about his claims, the evidence he intends to produce at trial, and any available witnesses. (ECF No. 44.) Plaintiff claims that his reluctance to being deposed is "prudent" because he does not want to give Defendants' counsel any sworn testimony that could be used against him in these proceedings. Plaintiff denies that his refusal to participate in his deposition caused or will cause any harm or prejudice to Defendants.

While Plaintiff may prefer to keep his evidence private until trial, the Federal Rules of Civil Procedure do not allow him to do so. One of the purposes of the civil discovery rules is to "take the sporting element out of litigation, partly by affording each party full access to evidence in the control of his opponent." Martin v. Reyonolds Metals Corp., 297 F.2d 49, 56 (9th Cir. 1961). As the Supreme Court has held: "Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession. The deposition-discovery procedure simply advances the stage at which the discovery can be compelled from the time of trial to the period proceeding it, thus reducing the possibility of surprise." Hickman v. Taylor, 329 U.S. 495, 507 (1947).

Rule 26(b)(1) give a party the right to discover "any non-privileged matter that is relevant to any party's claim or defense." This includes the right to take the opposing party's deposition, so long as that deposition is properly noticed. Fed. R. Civ. P. 30. The Court's April 28, 2010 Discovery and Scheduling Order stated: "Pursuant to Federal Rule of Civil Procedure 30(a), defendants may depose plaintiff and any other witness confined in a prison upon condition that, at least fourteen (14) days before such a deposition, defendants serve all parties with the notice required by Federal Rule of Civil Procedure 30(b)(1)." (ECF No. 35.)

Under both Local and Federal Rules, Defendants are entitled to depose Plaintiff and Plaintiff is required to provide all non-privileged facts within his possession. This includes, at a minimum, answering questions posed by Defendants' counsel in a deposition. It is undisputed that Defendants properly noticed Plaintiff's deposition for December 20, 2010 and that Plaintiff refused to answer any of the questions posed by Defendants. In so doing, Plaintiff clearly violated both the Federal Rules of Civil Procedure and the Court's Discovery and Scheduling Order.

While the Court understands Plaintiff might prefer to be represented at his deposition, he has elected not to retain counsel and he is not entitled to appointed representation in this civil proceeding. Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). With or without counsel, Plaintiff must obey all applicable procedural rules if he wishes to prosecute this action,. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1986 ("Pro se litigants must follow the same rules of procedure that govern other litigants.") Accordingly, Defendants' Motion to Compel is granted. Defendants are entitled to notice Plaintiff's deposition and Plaintiff is hereby ordered to participate in such deposition. Plaintiff is warned that failure to participated fully and completely in his deposition may result in sanctions, up to an including dismissal of this action. See Fed. R. Civ. P. 37(b)(2).

B. Request for Costs

Defendants also move for an award of the costs and fees associated with the attempted December 20, 2010 deposition and the filing of the instant Motion to Compel. Defendants seek a total of $1,125 - $275 for the court reporter and $850 for attorney's fees incurred researching and preparing the instant Motion. (ECF No. 41 at 4.)

Federal Rule of Civil Procedure 37 provides "If [a motion to compel] is granted . . . the court shall, after affording an opportunity to be heard, require the party . . . whose conduct necessitated the motion . . . to pay to the moving party the reasonable expenses incurred . . . unless the court finds that . . . circumstances make an award of expenses unjust." Fed. R. Civ P. 37(a)(2)(a).

It is inappropriate and unfair for Defendants to have had to incur otherwise unnecessary expense because of Plaintiff's refusal to participate in a properly noticed deposition. However, that refusal followed a pre-deposition request to delay the deposition and resulted from Plaintiff's reasonable desire to have legal counsel present, not an intent to frustrate discovery or delay this action. Moreover, as noted above, Defendants have in their own way contributed to the current discovery stalemate.

Accordingly, the Court will refrain for the present from imposing monetary sanctions on Plaintiff for his failure to participate in a properly noticed deposition but reserves to Defendants the right to re-submit the request in the event of further discovery obstruction by Plaintiff. Defendant's request for such costs and fees is denied at this time without prejudice to Defendant's right to re-file such motion in the event there is further inappropriate delay or failure to participate by Plaintiff.


Defendants move for an extension of the Court's previously imposed discovery deadline. (ECF No. 41 at 5.) The Court's April 28, 2010 Discovery and Scheduling Order set the deadline for completion of all discovery as December 28, 2010.

As that date has passed and the Court has ordered both parties to provide additional discovery, an extension of the discovery deadline is appropriate and Defendants' Request is granted. The parties' discovery deadline is extended to March 31, 2011. The deadline for filing pre-trial dispositive motions is extended to June 30, 2011.


For the reasons stated above, the Court hereby ORDERS the following:

1. Plaintiff's Motion to Compel is GRANTED. Defendants shall file supplemental discovery responses not later than February 25, 2011;

2. Plaintiff's Motion to Postpone his deposition is DENIED as moot;

3. Defendants' Motion to Compel is GRANTED in part and DENIED in part. Defendants are entitled to re-notice Plaintiff's deposition and Plaintiff is ordered to participate fully in compliance with his obligations under the Federal Rules of Civil Procedure. Plaintiff is on notice that failure to participate in his deposition may result in sanctions, up to and including dismissal of this action as well as monetary sanctions for past and/or future frustration of legitimate discovery. For now, Defendants' request for costs and fees is DENIED without prejudice;

4. The Court's April 28, 2010 Discovery and Scheduling Order is AMENDED as follows: The parties' discovery deadline is March 31, 2011 and all pre-trial dispositive motions must be filed by June 30, 2011.



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