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James Anthony Guerrero v. S. Mcclure

September 28, 2011

JAMES ANTHONY GUERRERO, PLAINTIFF,
v.
S. MCCLURE, ET AL., DEFENDANT.



ORDER

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Defendant McClure is represented by attorney Matthew Wilson of Williams and Associates. Defendants Ferguson, Fecht, Fox and Montes are represented by Deputy Attorney General Samantha H. Ramsey of the California Attorney General's Office. Before the court are five separate motions to compel discovery filed on behalf of each of the defendants, plaintiff's request for assignment of an inmate legal assistant, and plaintiff's motion for leave to file an amended complaint.

Back on June 29, 2010, the court filed its discovery and scheduling order in this action which set October 22, 2010 as the deadline for conducting discovery and filing motions to compel discovery. Defendants' pending motions to compel discovery were timely filed. By order filed on January 10, 2011, the court's discovery and scheduling order was vacated with respect to the deadline for the filing of dispositive motions and the parties were instructed that a new deadline would be set in that regard, if necessary, following resolution of the pending discovery motions. Below, the court will address each of the parties' pending motions.

I. Defendant McClure's Motion to Compel Responses to Interrogatories Defendant McClure seeks an order compelling plaintiff to provide supplemental responses to the following six interrogatories:

Interrogatory No. 1: If your response to Request for Admission No. 1, served concurrently with these interrogatories, is anything other than an unqualified admission, please state all facts, including the names, addresses and telephone numbers of witnesses, that you claim support your contention that McCLURE subjected you to excessive force.

Interrogatory No. 2: If your response to Request for Admission No. 2, served concurrently with these interrogatories, is anything other than an unqualified admission, please state all facts, including the names, addresses and telephone numbers of witnesses, that you claim support your contention that McCLURE violated your rights under the Eighth Amendment. Interrogatory No. 3: If your response to Request for Admission No. 3, served concurrently with these interrogatories, is anything other than an unqualified admission, please state all facts, including the names, addresses and telephone numbers of witnesses, that you claim support your contention that McCLURE was deliberately indifferent to your medical needs. Interrogatory No. 4: If your response to Request for Admission No. 4 served concurrently with these interrogatories, is anything other than an unqualified admission, please state all facts, including the names, addresses and telephone numbers of witnesses, that you claim support your contention that McCLURE violated your rights under the First Amendment.

Interrogatory No. 5: If your response to Request for Admission No. 5, served concurrently with these interrogatories, is anything other than an unqualified admission, please state all facts, including the names, addresses and telephone numbers of witnesses, that support your contention that McCLURE violated your constitutional rights.

Interrogatory No. 6: If your response to Request for Admission No. 6, served concurrently with these interrogatories, is anything other than an unqualified admission, please state all facts, including the names, addresses and telephone numbers of witnesses, that support your contention that you suffered an injury as a result of the actions of McCLURE.

(Doc. No. 27-3 at 3-5.) In responding to each of defendant's requests for admission referred to in these six interrogatories, plaintiff merely responded, "False." (Id. at 8-9.) In responding to each of the six interrogatories set forth above, plaintiff stated only: "You will be sent documents as soon as availible [sic]. See complaint also." (Id. at 3-5.)

Defendant McClure argues that plaintiff provided evasive responses to these six interrogatories, each of which sought relevant, non-privileged information. Defendant McClure also argues that plaintiff did not object to these interrogatories, but instead has "chosen to provide absolutely no factual basis for his claims[.]" (Doc. No. 27-1 at 3.) In addition to an order requiring supplemental responses to the six interrogatories in question, defendant seeks an order requiring plaintiff to pay $752.50 in attorney's fees in connection with the motion to compel pursuant to Rule 37(a)(5) of the Federal Rules of Civil Procedure. The requested amount is based on the 2.8 hours counsel alleges to have spent in preparing the motion to compel and the

1.5 hours counsel anticipates will be spent to review plaintiff's opposition to the motion to compel. (Doc. No. 27-2 at 2.)

On September 8, 2010, plaintiff filed his opposition to the motion to compel in which he argues that his responses to defendant McClure's interrogatories were not evasive or unresponsive. (Doc. No. 28 at 1.) Plaintiff asserts that he was being truthful when he informed defense counsel that complete addresses would be provided when plaintiff obtained that information since he does not have access to inmate files or the addresses of prison staff. (Id.) In addition, plaintiff asserts that in his discovery responses, he made reference to his complaint because the names of witnesses to the relevant events are listed in his complaint. (Id.) As to defendant's request for attorney fees, plaintiff argues that fees and costs should not be awarded because there was no intention on his part to delay or to refuse to provide answers to the interrogatories posed by defendants. (Id. at 2.) Plaintiff also states that he is willing to meet and confer with defense counsel and that he has signed a consent form allowing the defense to obtain his medical records. (Id.) Finally, plaintiff suggests that "[b]etween the medical file, and the complaint, all Plaintiff's claims are stated." (Id.)

Counsel for defendant McClure has filed a reply to plaintiff's opposition. (Doc. No. 29.) Therein defense counsel reasserts that plaintiff's responses to the six interrogatories at issue are evasive and non-responsive. Counsel notes that those interrogatories required plaintiff to provide "'all facts'" supporting his claims against defendant McClure and that plaintiff failed to meaningfully respond. (Id. at 2.) As to plaintiff's statement that he is willing to meet and confer, counsel for defendant McClure asserts that he is not required to meet with plaintiff in order to obtain adequate responses to the interrogatories.*fn1 (Id.) Because plaintiff has failed to provide justification for his failure to respond to the interrogatories, counsel reasserts that an order requiring the payment of defendant McClure's attorney fees in connection with the motion to compel in the amount of $752.50 is appropriate. (Id. at 3.)

Having considered the arguments of the parties, the court will order plaintiff to provide supplemental responses to the six interrogatories set out above. Plaintiff is cautioned that he must provide the names, addresses and telephone numbers of his witnesses. If he is not in possession of the requested information, he should so state in his response to that particular interrogatory. In addition, plaintiff must make a good faith effort to provide the facts which he claims support his claims where requested by defendant's interrogatories. Plaintiff is advised that simply responding to such interrogatories by stating, "see complaint" is not sufficient. See Hickman v. Taylor, 329 U.S. 495, 507 (1947) ("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.").*fn2

However, the court will at this time deny defendant McClure's request for an order requiring plaintiff to pay defendant's attorney fees incurred in connection with the motion to compel. Under Rule 37(a)(5) the court is to order a party to pay the moving party's reasonable expenses for making a successful motion to compel unless, among other circumstances, the "circumstances made an award of expenses unjust." Fed. R. Civ. P. 37(a)(5)(iii). Here, the court is unpersuaded that plaintiff, a prisoner who is proceeding pro se and who did not ignore or completely fail to respond to the discovery requests, acted in bad faith and/or intended his answers to the interrogatories in question to be evasive or non-responsive. Under these circumstances an award of the requested $752.50 in attorneys fees would be unjust. See Becker v. Dahl, No. CIV S-10-0519 FCD EFB P, 2011 WL 121697, at *4 (E.D. Cal. Jan. 13, 2011). However, plaintiff is cautioned that should he fail to provide the supplemental responses as ordered by the court, the court will entertain a renewed motion to compel with a request for the award of expenses.

II. Motions to Compel By Defendants Fecht, Ferguson, Fox and Montes On September 24, 2010, counsel on behalf of defendants Fecht, Ferguson, Fox and Montes filed four separate motions to compel further responses to requests for admissions and interrogatories. On October 5, 2010, plaintiff filed a single opposition in response to those motions. (Doc. No. 35.) On October 11, 2010, counsel on behalf of these four defendants filed a single reply. (Doc. No. 36.)

A. Defendant Fecht's Motion to Compel (Doc. No. 31)

Defendant Fecht seeks to compel further responses to his three interrogatories and request number 3 of his request for admissions. Those discovery requests and responses are as follows:

Request for Admission No. 3: Other than the retaliation and due process claims referred to in Request No. 1 and Request No. 2 of this document, you are asserting no additional claims against Defendant Fecht.

Response: No, this is false. I reserve the right to state my claims as they arise. There is no answer to this statement of yours. [sic] If you would like to know something specific, let me know and I will answer you specific questions.

Interrogatory No. 1: For each and every response to Defendant Fecht's Requests for Admission that is not an unequivocal, unqualified admission, please state each and every fact, including dates, supporting your response.

Response: See complaint. Also, I am not sure what it is you are saying, is this a question, or a statement. [sic]

Interrogatory No. 2: For each and every response to Defendant Fecht's Requests for Admission that is not an unequivocal, unqualified admission, please identify each and every person by name and address who has knowledge of any facts supporting your response. (For inmate witnesses, include their CDCR number.) Response: Any name or address that is not listed in the complaint will be given to you as soon as it becomes available. Interrogatory No. 3: For each and every response to Defendant Fecht's Requests for Admission that is not an unequivocal, unqualified admission, please identify each and every document on which you base your response.

Response: See complaint. Any document you seek will have to be stated with specificity. I am not sure what it is you are requesting.

(Doc. No. 31-2 at 3-4 and 10.)

As to his third request for admissions, defendant Fecht argues that plaintiff's response is ambiguous and non-responsive because plaintiff neither admits nor denies that his claims are limited to those for retaliation and a violation of due process. (Id. at 31-1 at 3.)

Counsel for defendant Fecht represents that she arranged for a meet-and confer session with plaintiff by video-conferencing but that plaintiff at that time offered no clarification of his responses, but rather merely repeated his response that everything defendant Fecht seeks though discovery is in his complaint. (Id.) Furthermore, counsel argues that plaintiff's statement that he reserves the right to "state [his] claims as they arise" is inaccurate because plaintiff may allege additional claims only if the court were to grant him leave to file an amended complaint. (Id.)

As to plaintiff's responses to defendant Fecht's interrogatories, counsel argues that plaintiff failed to respond to each interrogatory separately and fully as required by Rule 33(b)(3) of the Federal Rules of Civil Procedure. (Id. at 3-5.) Defendant Fecht also argues that plaintiff has delayed this litigation, has not acted in good faith and caused defendant to incur unnecessary costs in scheduling, preparing for and conducting the meet-and-confer videoconferencing on September 3, 2010. (Id. at 5.) Accordingly, defendant Fecht seeks an order requiring plaintiff to pay $850 in expenses incurred by defendant in bringing this motion to compel. (Id. at 6.) Defendant also requests an order staying discovery and the deadlines set in the court's June 29, 2010 scheduling order, pending resolution of this motion to compel in order to avoid incurring the cost of deposing plaintiff in the event that further responses to the discovery requests render a deposition unnecessary. (Id.)

In his opposition, plaintiff does not refer specifically to defendant Fecht's motion to compel. Instead, plaintiff makes a general statement that he is "being as truthful and forthcoming as possible. The plaintiff does not possess any of the documents, or, [sic] facts that are being asked for by the four defendants in this case." (Opp'n at 1.) Plaintiff asserts that he attempted to have further discussion with defense counsel after the meet and confer. (Id. at 2.) Plaintiff emphasizes that he is proceeding pro se and "is not a sophisticated litigant[,]" that he is not attempting to evade responding to the defendants' discovery requests, and that he should not "be expected to proceed according to every rule of law, or rule of court." (Id.) According to plaintiff, when he has referred to his complaint in responding to discovery requests, "this is his attempt to say, all of the beliefs and claims stated by the plaintiff are written in his complaint." (Id.) As to defendants' request for the award of monetary sanctions, plaintiff explains that when he attended the meet and confer conference with counsel, he believed that "any statement would be used against him if he was incorrect or answered without proper evidence of which he did not possess at the meet and confer." (Id. at 3.) Finally, plaintiff states that he has "a legal assistant willing to help the plaintiff in this matter [and who] is waiting for an order by this court[.]" (Id.) According to plaintiff, this person is willing to provide him with free legal assistance. (Id.)

Defendants have filed a joint reply, arguing that plaintiff's opposition to the motion to compel should be stricken because plaintiff failed to identify which defendant's motion he was addressing therein. (Doc. No. 36 at 2.) Defendant Fecht also contends that plaintiff is not being forthcoming when he argues that he does not possess documents or facts being requested by defendants. (Id.) Defendants clarify that they have not requested the actual production of documents but only that plaintiff identify the documents that he believes support his claims. (Id.) In addition, defendants contend that if plaintiff does not possess any of the facts requested by defendants he is essentially conceding that he does not know what his claims are. (Id.) As to plaintiff's assertion that he tried to reopen communication with defense counsel following the meet-and-confer, defendants argue that they should not be required to expend further time and resources attempting to schedule a video conference or teleconference with plaintiff, especially since such conferencing is not easily arranged due to lack of resources caused by the current state budget crisis. (Id. at 2-3.)*fn3 Lastly, defendants acknowledge that plaintiff's pro per status requires the granting of some latitude with respect to his pleadings and his litigation of this action in general, but they argue that through their discovery requests they have only asked plaintiff to identify, clarify and support his claims. (Id. at 3.) Defendants contend they will be prejudiced if plaintiff's conduct in failing to provide that information goes unsanctioned. (Id.)

Defendants are correct that plaintiff was to file opposition to each of the defendants' motions to compel. However, in the interest of justice, the court will accept plaintiff's single opposition as his opposition to the four separate, but very similar, motions to compel brought on behalf of defendants Fecht, Ferguson, Fox and Montes.

As to defendant Fecht's motion to compel the court will order plaintiff to provide supplemental responses to the three interrogatories at issue but deny the motion ...


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