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Edward Thomas v. M. Beutler

October 10, 2012

EDWARD THOMAS, PLAINTIFF,
v.
M. BEUTLER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

ORDER

Plaintiff, a state prisoner, proceeds pro se with a civil rights complaint pursuant to 42 U.S.C. § 1983. Plaintiff asserts claims against defendants Beutler and Neiman for the use of excessive force in violation of the Eighth Amendment, claims against defendants Beutler, Nieman, Ginder, Albonico, and Betti in connection with an alleged false and retaliatory disciplinary report, and related claims under state law. Plaintiff's May 30, 2012 motion to compel discovery (Dkt. No. 38), memorandum in support thereof (Dkt. No. 40) and defendants' opposition (Dkt. No. 44) are before the court. Plaintiff has also filed a second motion to compel (Dkt. No. 49) with memorandum (Dkt. No. 50) and a third motion for recusal (Dkt. No. 60).

I. Motions to Compel

Discovery deadlines were imposed in this action as follows: "The parties may conduct discovery until April 13, 2012. Any motions necessary to compel discovery shall be filed by that date. All requests for discovery pursuant to Fed. R. Civ. P. 31, 33, 34 or 36 shall be served not later than 60 days prior to that date." (Dkt. No. 24.) On May 29, 2012, plaintiff's request to revise the scheduling order was granted and the discovery deadline extended to July 1, 2012. (Dkt. No. 36.)

On May 30, 2012, plaintiff filed a motion to compel discovery. (Dkt. No. 38.) On June 6, 2012 he filed a document entitled "Brief in Support of Motion to Compel Discovery with Cited Memorandum of Laws." (Dkt. Nos. 40.) Defendants filed their opposition to plaintiff's motion to compel on July 5, 2012. (Dkt. No. 44.) These filings are all properly before the court and will be considered in ruling on plaintiff's motion to compel at docket 38.

On July 27, 2012, plaintiff filed a document entitled "Secondary Addendum Motion for Court Order Compelling Discovery Request with Attached Exhibits" and an accompanying document entitled "Brief in Support of Motion to Compel Discovery with Cited Memorandum of Laws." (Dkt. Nos. 49, 50). In these confusing filings, plaintiff addresses further the same discovery requests which were the subject of his pending motion to compel at docket 38, and, in addition, addresses a second set of discovery requests which were apparently served on defendants and to which defendants apparently objected as untimely. Defendants have not responded to plaintiff's second motion to compel, which was filed after the deadline for motions necessary to compel discovery expired on July 1, 2012. The court finds that plaintiff's second motion to compel at docket 49 is untimely under the applicable scheduling orders; accordingly, it will be denied.

A. Interrogatories

Pursuant to Rule 33 of the Federal Rules of Civil Procedure, plaintiff served each defendant with an identical set of 25 interrogatories. Defendants responded with identical objections and answers. Plaintiff moves to compel each defendant to "answer fully" the following interrogatories: Nos. 2, 4, 7-8, 10-14, 19-22, 24 and 25.

Under the Federal Rules of Civil Procedure, a party is obligated to respond to interrogatories to the fullest extent possible and state any objections with specificity. Fed. R. Civ. P. 33(b)(3), (b)(4). While extensive research is not required, a reasonable effort to respond must be made. L.H. v. Schwarzenegger, No. S-06-2042 LKK GGH, 2007 WL 2781132, *2 (E.D. Cal. Sep. 21, 2007).

In a motion to compel, the moving party bears the burden of showing why the other party's responses are inadequate or their objections unjustified. See Williams v. Cate, 2011 WL 6217378 at *1 (E.D. Cal. Dec. 14, 2011) ("Plaintiff bears the burden of informing the Court... for each disputed response, why Defendant's objection is not justified.... Plaintiff may not simply assert that he has served discovery responses, that he is dissatisfied, and that he wants an order compelling further responses."), citing Ellis v. Cambra, 2008 WL 860523 at *4 (E.D. Cal. Mar. 27, 2008).

To begin, defendants responded fully to interrogatory Nos. 4, 13, 14, 19 and 20 without objection. (Dkt. No. 38 at 16, 19-20.*fn1 ) In interrogatory Nos. 4 and 20, plaintiff seeks information about the existence of various documents and defendants responded that there are no relevant documents to identify. In interrogatory No. 19, plaintiff asks defendants to "[i]dentify [ ] persons... whom you contend contributed to the occurrence of the incident or the injuries or damages claimed by Plaintiff"; defendants responded "None." Interrogatory No. 13 asks a yes or no question to which defendants responded "Yes." Interrogatory No. 14 asks defendants to identify persons with knowledge of facts stated in response to Interrogatory No. 13 and defendants responded by identifying three individuals. Plaintiff does not explain why he believes any of these responses to be insufficient. Nor does he allege there is any further information which should have been divulged. Plaintiff's motion to compel will be denied as to interrogatory Nos. 4, 13, 14, 19 and 20.

As to interrogatory Nos. 2 and 24, defendants asserted objections, but nevertheless, without waiving the objections, gave responses. (Dkt. No. 38 at 15, 22.) Plaintiff does not address the sufficiency of defendants' objections or the sufficiency of the responses. The fact that there were "no documents to identify" in response to No. 2,*fn2 for example, and the fact that defendants have "not had training regarding the specific subject matter described in the interrogatory" in response to No. 24, does not make the responses insufficient or incomplete. Plaintiff's motion to compel will be denied as to interrogatory Nos. 2 and 24.

In response to interrogatory Nos. 21, 22, and 25, defendants made objections, but without waiving the objections, referred plaintiff to business records being produced to plaintiff subject to his other requests. (Dkt. No 38 at 20-21, 23.) Under the federal rules of civil procedure, where information sought by an interrogatory may be obtained by examining the responding party's business records, the responding party may answer by specifying the records from which the answer may be obtained and making the records available for inspection. Fed. R. Civ. P. 33(d). Plaintiff makes no argument, nor is it apparent, why the production of business records in response to these interrogatories was insufficient. For these reasons, plaintiff's motion to compel will be denied as to interrogatory Nos. 21, 22, and 25.

The remaining interrogatories, Nos. 7-8 and 10-12 will now be set forth and addressed. In regard to these interrogatories, plaintiff defined "you" or "your" as used therein to include "you, your agents, your employees, Internal Affairs investigators, your insurance companies, their agents, their employees, your attorneys, your accountants, your investigators, and anyone else acting on your behalf" (Dkt. No. 38 at 15 (emphasis added)).

Interrogatory No. 7

Have you or anyone acting on your behalf interviewed any individual concerning the incident?

Response to Interrogatory No. 7 Responding Party objects to this interrogatory on the grounds that it invades the attorney client privilege and calls for the disclosure of attorney work product. For purposes of clarification, Responding Party does not consider CDCR, or any of its employees, to be a person or entity acting on his behalf.

Interrogatory No. 8 Identify all persons with knowledge of the facts stated in your response to Interrogatory No. 7.

Response to Interrogatory No. 8 There are no facts referred to in response to Interrogatory No. 7. Interrogatory No. 10 Have you or anyone on your behalf obtained a written or recorded statement from any individual concerning the incident?

Response to Interrogatory No. 10 Responding Party objects to this interrogatory on the grounds that it invades the attorney-client privilege and calls for the production of attorney work-product. Without waiving these objections, defense counsel has corresponded with the institution in order to prepare for litigation in this matter.

Interrogatory No. 11 Identify all persons with knowledge of the facts stated in your response to Interrogatory No. 10.

Response to Interrogatory No. 11 Responding party objects to this interrogatory on the grounds that it invades the attorney client privilege and calls for ...


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