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Gregory A. Franklin v. Larry Smalls

October 18, 2012

GREGORY A. FRANKLIN,
PLAINTIFF,
v.
LARRY SMALLS, R. DAVIS, R.
MADDEN, J. VARGAS, E. HALEY, E. HOPPER, S.F. ARIAS,
DEFENDANTS.



The opinion of the court was delivered by: Ruben B. Brooks, Magistrate Judge United States District Court

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTIONS TO COMPEL DEFENDANTS TO ANSWER PLAINTIFF'S INTERROGATORIES AND REQUESTS FOR ADMISSION [ECF NOS. 102, 130]

Plaintiff Gregory Franklin, a California prisoner proceeding pro se and in forma pauperis, filed an action under 42 U.S.C. § 1983 [ECF Nos. 1, 3], which now proceeds against Defendants Arias, Davis, Haley, Hopper, Maciel, Madden, Small, Trujillo, and Vargas for violations of the First, Eighth, and Fourteenth Amendments.*fn1

(See Fourth Am. Compl. 1-2 ECF No. 79.) In his Fourth Amended Complaint, Franklin alleges that Defendants retaliated against him after he sued them in 2007. (Id. at 4-5.)*fn2 He also complains that his right to be free from cruel and unusual punishment was violated when he was subjected to constant illumination from a "big cell light" located right above his bunk. (Id. at 16.) After Defendants Vargas, Arias, Hopper, Trujillo, Madden, Davis, and Small filed an Answer [ECF No. 90], the Court conducted a case management conference [ECF No. 92], and the parties commenced discovery.

Franklin contends that he served his first set of interrogatories and requests for admission in January 2012. ([Am.] Mot. Compel 2, ECF No. 130.) Defendants responded with objections to each discovery request on March 14, 2012. (Id.) On April 19, 2012, Plaintiff sent two meet-and-confer letters to defense counsel where he requested additional responses to his interrogatories and requests for admission. (Id.; see id. Attach. #1 Ex. C, at 7, 26).) Defendants then served substantive interrogatory responses. (Id. (citing Id. Attach. #1 Ex. D).)

Plaintiff's "Motion to Compel Defendants to Answer Plaintiff['s] Interrogatories and Request[s] for Admissions" was filed nunc pro tunc to May 18, 2012 [ECF No. 102]. There, Franklin urges that the answers provided by Defendants were non-responsive and evasive. (Mot. Compel 2, ECF No. 102 (citing id. Ex. D).)

Defendants filed their "Opposition to Plaintiff's Motion to Compel Defendants to Answer Plaintiff's Interrogatories and Requests for Admission" on June 18, 2012, along with a Separate Statement and Declaration of Robert Borg [ECF No. 116].*fn3 In addition to raising objections, Defendants Madden, Davis, Hopper, Arias, Vargas, Trujillo, and Small argue that the Motion should be denied because Plaintiff failed to quote each interrogatory in full in his Motion, violating Local Rule 33.1(b)). (Opp'n 7, ECF No. 116.)

Franklin later submitted another motion to compel which was filed nunc pro tunc to August 13, 2012 [ECF No. 130]. This second Motion to Compel is identical to Plaintiff's first Motion, with the exception of an added two-page memorandum of points and authorities. (Compare Mot. Compel 1-9, ECF No. 102, with [Am.]

Mot. Compel 1-11, ECF No. 130). The Amended Motion to Compel supersedes the original. Cf. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990) (stating that whether party was named in original complaint was irrelevant because amended complaint superseded the original complaint).

On September 4, 2012, Defendants filed a "Response/Opposition to Plaintiff's Additional Papers Presented in Connection with his Motion to Compel Defendants to Answer Interrogatories and Requests for Admission" (hereinafter Defendants' "Response") along with a memorandum of points and authorities [ECF No. 133]. They also filed a "Motion for Summary Judgment or Alternatively Partial Summary Judgment" on June 11, 2012, which is pending before United States District Court Judge Michael M. Anello [ECF No. 105].

To date, Plaintiff has not filed a reply to Defendants' Opposition or Response. The Court finds both of Plaintiff's Motions to Compel suitable for resolution on the papers, pursuant to Civil Local Rule 7.1. See S.D. Cal. Civ. R. 7.1(d)(1). The Court has reviewed Franklin's Motions, Defendants' Opposition, and Defendants' Response. For the reasons stated below, the Court GRANTS in part and DENIES in part Plaintiff's "[Amended] Motion to Compel Defendants to Answer Plaintiff['s] Interrogatories and Request[s] for Admissions" [ECF No. 130].

I. FACTUAL BACKGROUND

The allegations in the Fourth Amended Complaint surround events that occurred while Franklin was housed at Calipatria State Prison ("Calipatria"). (Fourth Am. Compl. 1, ECF No. 79.) The Plaintiff contends that after filing a lawsuit against Defendants in 2007, they retaliated against him on several occasions. (See generally id. at 4-15.) Specifically, Franklin claims that the acts of retaliation include (1) being punished for covering a light in his cell; (2) Defendant Vargas forging Plaintiff's signature and stealing mailing envelopes that Franklin was entitled to as an indigent inmate; (3) charging him with committing a "serious rule violation" rather than an administrative violation for calling Defendant Arias a "stupid motherfucker"; 4) Defendant Reyes preventing Franklin and other inmates from returning to their cells from the yard, and then punishing only Franklin for failing to return to his cell in a timely manner; (5) denying him recreation time on August 12, 2007; (6) Defendant Maciel stealing a personal package from Plaintiff; and (7) placing him on "C-status" after allegedly committing two serious rule violations, which Franklin believes were unfounded. (Id. at 6-14.) Finally, Plaintiff maintains that his right to be free from cruel and unusual punishment was violated when he was subjected to constant illumination from a fluorescent lightbulb located above the bunk in his cell. (Id. at 16.)

II. LEGAL STANDARDS

It is well established that a party may obtain discovery regarding any non-privileged matter that is relevant to any claim or defense. Fed. R. Civ. P. 26(b)(1). Relevant information need not be ultimately admissible at trial so long as the discovery appears to be reasonably calculated to lead to the discovery of admissible evidence. Id. Relevance is construed broadly to include any matter that bears on, or reasonably could lead to other matter that could bear on, any issue that may be in the case. See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 350-51 (1978) (footnote omitted) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947) (discussing relevance to a claim or defense, although decided under 1978 version of Rule 26 that authorized discovery relevant to the subject matter of the action). Rule 37 of the Federal Rules of Civil Procedure enables the propounding party to bring a motion to compel responses to discovery. Fed. R. Civ. P. 37(a)(3)(B). The party opposing discovery bears the burden of resisting disclosure. Miller v. Pancucci, 141 F.R.D. 292, 299 (C.D. Cal. 1992).

"In general, pro se representation does not excuse a party from complying with a court's orders and with the Federal Rules of Civil Procedure." Ackra Direct Mktg. Corp. v. Fingerhut Corp., 86 F.3d 852, 856-57 (8th Cir. 1996) (citing Jones v. Phipps, 39 F.3d 158, 163 (7th Cir. 1994); Anderson v. Home Ins. Co., 724 F.2d 82, 84 (8th Cir. 1983)). Above all, plaintiffs who choose to represent themselves are expected to follow the rules of the court in which they litigate. Carter v. Comm'r, 784 F.2d 1006, 1008-09 (9th Cir. 1986); see also Bias v. Moynihan, 508 F.3d 1212, 1223 (9th Cir. 2007) (discussing the pro se litigant's untimely filing in violation of local rules). "[W]hile pro se litigants may be entitled to some latitude when dealing with sophisticated legal issues, acknowledging their lack of formal training, there is no cause for extending this margin to straightforward procedural requirements that a layperson can comprehend as easily as a lawyer." Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir. 1991).

III. DISCUSSION

A. Timeliness

On February 27, 2012, this Court extended the parties' discovery cutoff date from April 16, 2012, to May 14, 2012. (Order Granting Ex Parte Appl. 2, ECF No. 95.) Plaintiff's initial Motion to Compel was filed nunc pro tunc to May 18, 2012 -- four days after the new deadline. (Mot. Compel 1, ECF No. 102.) The proof of service attached to Franklin's Motion, however, is dated May 14, 2012. (See id. at 10.) Under the mailbox rule, a legal document is deemed filed on the date a prisoner delivers it to the prison authorities for mailing to the court. Houston v. Lack, 487 U.S. 266, 270-72 (1988). Plaintiff mailed his first motion to compel before the discovery cutoff, so the motion is timely. See Anaya v. Campbell, No. CIV S-07-0029 GEB BBH P, 2009 WL 2390599, at *1 (E.D. Cal. Aug. 3, 2009) (applying mailbox rule when prisoner mailed motion to compel on discovery cutoff date).

Franklin's second Motion to Compel was filed nunc pro tunc to August 13, 2012. ([Am] Mot. Compel 1, ECF No. 130.) This filing was after the May 14, 2012 deadline. (See Order Granting Ex Parte Appl. 2, ECF No. 95.) In light of Plaintiff's pro se status, and because his second motion to compel is virtually identical to the first, the Court will consider the merits of the amended motion. See McCowan v. Educ. Servs. of Am., No. 1:08-CV-55, 2009 WL 3055313, at *2 (N.D. Ind. Sept. 21, 2009) (addressing merits of pro se litigant's motion to compel despite its untimeliness); See United States v. Select Aviation Corp., No. CV 05-1815(JS)(ARL), 2006 WL 2711545, at *1 (E.D. N.Y. Sept. 20, 2006) (same). Moreover, in their Response to Franklin's second motion, Defendants do not argue that the motion should be denied as untimely. (See generally Resp. 2-5, ECF No. 133.)

B. Meet-and-Confer Requirement

As previously noted, after receiving Defendants' initial objections, Plaintiff sent two meet-and-confer letters to Defendants on April 19, 2012. (See [Am.] Mot. Compel Attach. #1 Ex. C, at 6-35, ECF No. 130.) Defendants subsequently served their interrogatory answers on April 23, 2012. (Opp'n 5, ECF No. 116.) Defense counsel responded to Franklin's meet-and-confer letter with a letter of his own. (Id. at 5-6.) Defense counsel made no attempt to meet with Plaintiff in person. (Id.) Franklin filed his motion to compel less than a month later. (Mot. Compel 10, ECF No. 102.)

According to the local rules, "The court will entertain no motion pursuant to Rules 26 through 37, Fed. R. Civ. P., unless counsel shall have previously met and conferred concerning all disputed issues." S.D. Cal. Civ. R. 26.1(a). "If counsel have offices in the same county, they are to meet in person. If counsel have offices in different counties, they are to confer by telephone." (Id.) The local rules further provide that "[u]nder no circumstances may the parties satisfy the meet-and-confer requirement by exchanging written correspondence." (Id.)

Rules requiring meet-and-confer efforts apply to pro se litigants. Madsen v. Risenhoover, No. C 09-5457 SBA (PR), 2012 U.S. Dist. LEXIS 90810, at *8-9 (N.D. Cal. June 28, 2012) (finding that the meet-and-confer requirement applies to incarcerated individuals, but noting that the incarcerated plaintiff may send a letter to defendants); Walker v. Ryan, No. CV-10-1408-PHX-JWS (LOA), 2012 U.S. Dist. LEXIS 63606, at *5-6 (D. Ariz. May 7, 2012) (denying motion to compel where unrepresented party did not include a certification of attempts to meet and confer); see Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir. 1991) (discussing that although courts should liberally construe pro se plaintiffs' pleadings and legal arguments, this liberality does not apply to compliance with straightforward procedural requirements).

A court can deny a motion to compel solely because of a party's failure to meet and confer prior to filing the motion. Scheinuck v. Sepulveda, No. C 09-0727 WHA (PR), 2010 U.S. Dist. LEXIS 136529, at *3-4 (N.D. Cal. Dec. 15, 2010); see Shaw v. Cnty. of San Diego, No. 06-CV-2680-IEG (POR), 2008 U.S. Dist. LEXIS 80508, at *3-4 (S.D. Cal. Oct. 9, 2008) (denying plaintiff's motion to compel for failing to attempt to meet and confer). Nonetheless, courts can still decide a motion on the merits despite a failure to meet and confer. See Marine Group, LLC v. Marine Trvelift, Inc., No. 10cv846-BTM (KSC), 2012 U.S. Dist. LEXIS 49064, at *6-7 (S.D. Cal. Apr. 6, 2012) (explaining failure to meet and confer is grounds for denying a motion, but still addressing the merits).

Franklin is currently incarcerated in the California State Prison, located in Lancaster, which is in Los Angeles County. (See [Am.] Mot. Compel 1, ECF No. 130.) Defense counsel's office is also located in Los Angeles County. (See Opp'n 1, ECF No. 116.) Accordingly, the parties failed to properly meet and confer in person. Franklin's incarcerated status limits his ability to meet and confer in person, but not defense counsel's. Furthermore, defense counsel did not ask to be excused from this obligation. See Kunkel v. Dill, No. 1:09-cv-00686-LJO-SKO PC, 2010 U.S. Dist. LEXIS 121754, at *8 (E.D. Cal. Nov. 2, 2010) (stating that counsel must make themselves reasonably available to the incarcerated party in person, via telephone, or via video conference for a meet and confer); See Beckner v. El Cajon Police Dept., 07cv509-W (BLM), 2008 WL 2033708, at *3 n.2 (S.D. Cal. May 9, 2008) ("In light of the circumstances, particularly Plaintiff's incarceration . . . the Court does not find that justice, efficiency, or economy would have been furthered by requiring the parties to meet in person or speak on the phone.") Franklin attempted to confer with counsel by sending the two meet-and-confer letters. Defense counsel's failure to follow local rules will not preclude Plaintiff's Amended Motion to Compel. See Marine Group LLC, 2012 U.S. Dist. LEXIS 49064, at *7. Moreover, Defendants do not allege that Franklin's Motion should be denied on this basis. (See Opp'n 2, ECF No. 116.) Both parties are now on notice, however, that additional discovery motions will not be entertained absent certification by the moving party of compliance with the meet-and-confer requirement or an order excusing compliance with this local rule. See S.D. Cal. Civ. R. 26.1(a).

C. Interrogatories

Plaintiff asks the Court to grant his Motion to Compel because the "overwhelming majority of [Defendants'] respon[se]s were non-responsive and evasive." ([Am.] Mot. Compel 2-3, ECF No. 130 (citing id. Ex. D).) Franklin states that he will "show the Court what answers are satisfactory and non-satisfactory[.]" (Id. at 2.) Plaintiff then classifies almost all of Defendants' interrogatory responses into one of four categories: (1) "Ask and answer"; (2) "Unsatisfactory respond [sic], did not refer to records"; (3) "Ask, unsatisfactory answer"; or (4) "Unsatisfactory respond [sic], did not refer to record for accurate respond [sic]." (Id. at 3-9.)

Franklin acknowledges that some of Defendants' responses were "satisfactory." (Id. at 2.) Three of Plaintiff's four classifications include the word "unsatisfactory." (See id. at 3-9.) Although not completely clear, the Court will construe Franklin's reference to "ask and answer" to mean that Plaintiff has deemed the answer sufficient.*fn4 The Court will not consider these interrogatories in its ruling on the Amended Motion to Compel.

Defendants generally contend that Franklin's motion to compel should be denied because Defendants' responses were sufficient because they complied with Rule 37 and were answered in full.

(Opp'n 7-8, ECF No. 116.) They also allege that no records exist to supplement their responses. (Id. at 8.) To the extent records do exist, Defendants argue that providing further responses would be burdensome and needlessly increase the cost of litigation because the California Department of Corrections and Rehabilitation ("CDCR") "does not keep records in a manner that allows for such information to be readily accessible." (Id. at 9.) Next, Defendants maintain that their responses are sufficient because some of Plaintiff's interrogatories assume facts that are in dispute. (Id. at 10.) Finally, they urge that providing further responses would not assist Franklin in proving his claims. (Id. at 11.) In their reply memorandum, titled a Response, Defendants reiterate that they have provided "full and complete" responses to Plaintiff's interrogatories, and they argue that Franklin has not shown that further responses are warranted. (Resp. 2, ECF No. 133.)

1. Compliance with Local Rule 33.1(b)

Although defense counsel failed to meet and confer in person with Plaintiff concerning this discovery dispute, in Defendants' Opposition, they maintain that Franklin's Motion to Compel should be denied because Franklin failed to comply with the local rules. (Opp'n 7, ECF No. 116.) Specifically, Plaintiff failed to quote each interrogatory in full in his moving papers. (Id.)

Pursuant to Local Rule 33.1(b), "[O]bjections to answers to interrogatories . . . must identify and quote each interrogatory in full immediately preceding the statement of any answer or objection thereto." S.D. Cal. Civ. R. 33.1(b). In the body of his Motion, Franklin does not quote each interrogatory. (See generally [Am.] Mot. Compel 1-9, ECF No. 130.) Yet, he attaches a copy of the interrogatories, Defendants' objections, and Defendants' responses as exhibits to his Motion. (See id. Exs. A, D.) In light of Franklin's pro se status, the Court will consider his Motion to Compel despite the failure to comply with local rules. See Delange v. Dutra Const. Co., 183 F.3d 916, 919 n.2. (9th Cir. 1999) (per curiam) ("District courts 'have broad discretion in interpreting and applying their local rules.'") (quoting Miranda v. S. Pac. Transp., 710 F.2d 516, 521 (9th Cir. 1983)). Plaintiff is again advised, however, that even as a pro se litigant he still must adhere to the local rules. See S.D. Cal. Civ. R. 83.11(a). His continued failure to comply with these rules may be grounds for dismissal or judgment by default. See id.

2. Objections that Defendants do not pursue

a. Hopper interrogatory 5 and Trujillo interrogatories 8-10

In interrogatory 5, Franklin asks Hopper, "On August 12, 2007, did Officer Haley or Officer Trujillo call you stating Plaintiff is requesting to speak with you in regard to being disallowed the recreation yard and confined to his cell?" ([Am.] Mot. Compel Attach. #1 Ex. D, at 56, ECF No. 130.) Hopper objected that the question was vague and irrelevant. (Id. at 57.)

In Trujillo interrogatory 8, Franklin asks, "On August 12, 2007, did Sgt. Hopper tell you not to allow Plaintiff to the recreation yard and confine him to his cell?" (Id. at 66.) Plaintiff asks Trujillo in interrogatory 9, "On August 12, 2007, did Plaintiff request to speak to Sgt. Hopper about being disallowed to the recreation yard and being confined to his cell?"

(Id.) Interrogatory 10, addressed to Trujillo, asks, "On August 12, 2007, did you confine Plaintiff to his cell at Sgt. Hopper's request?" (Id. at 67.) Trujillo objected that the questions were vague, overbroad, and irrelevant. (Id. at 66-67.)

Both Defendants provided similar responses and answered either, "I don't recall" or "I don't know." (Id. at 57, 66-67.) Franklin now moves to compel further responses to these interrogatories on the basis that Defendants did not refer to appropriate prison records in their responses. ([Am.] Mot. Compel 5-6, ECF No. 130.)

Although Defendants raised multiple objections when initially responding to the interrogatories, the Court will only address the ones they elected to pursue when opposing this Motion. See Bryant v. Armstrong, 08cv02318 W(RBB), 2012 WL 2190774, at *6 (S.D. Cal. June 14, 2012) (acknowledging only those objections pursued in opposing the motion). In their Opposition, Defendants do not argue in support of these objections. (See Opp'n Attach. #3 Separate Statement 23-25, 30, ECF No. 116.) Rather, they contend that their responses are sufficient because they do not recall whether the events referred to in the interrogatories took place. (Id.) Further, they urge that a review of Franklin's central file and pertinent records reveals no evidence of the alleged conversations. (Id.)

"A party answering interrogatories has an affirmative duty to furnish any and all information available to the party." 7 James Wm. Moore et al., Moore's Federal Practice § 33.102[1], at 33-72 (3rd ed. 2012) (footnote omitted). Interrogatories must be answered "separately and fully in writing under oath." Fed. R. Civ. P. 33(b)(3). If a responding party is unable to provide the requested information, he may not simply refuse to answer. Haworth v. Suryakant, No. 1:06-cv-1373-LJO-NEW(TAG), 2007 U.S. Dist. LEXIS 48380, at *5 (E.D. Cal. June 25, 2007) (citing Hansel v. Shell Oil Corp., 169 F.R.D. 303, 305 (E.D. Pa. 1996)). The responding party must state under oath that he is unable to answer the interrogatory and must describe the efforts made to obtain the answer. Id. (citing Hansel, 169 F.R.D. at 305); see also 7 James Wm. Moore et al., Moore's Federal Practice § 33.102[3], at 33-75 (footnote omitted).

Here, although Defendants have verified their responses to Franklin's interrogatories under oath, they did not explain under oath why they are unable to provide the information requested, nor do they describe the efforts made to obtain the information. Their subsequent explanations were unverified and made by defense counsel in opposition to this Motion to Compel. This is not in compliance with Rule 33 of the Federal Rules of Civil Procedure.

i. Declaration of Robert Borg

Defendant Hopper asserts that his response to interrogatory 5 is sufficient in light of Robert Borg's Declaration, which was filed as an attachment to the Opposition. (Opp'n Attach. #3 Separate Statement 30, ECF No. 116 (citing id. Attach. #2 Decl. Borg).) Defendant represents that his response is sufficient because Borg reviewed Franklin's file and submitted a declaration attesting to his findings. (Id.)

Borg describes himself as an expert hired to provide testimony concerning this lawsuit. (Id. Attach. #2 Decl. Borg 1.) He indicates that his "experience and education gives [him] an understanding and an expertise to render informed opinions in this case . . . ." (Id. at 2.) He does not, however, explain his experience or educational background, so there is no reason to conclude that he qualifies as an expert to opine in this case.

In the declaration, Borg discusses the difficulty of obtaining the information Franklin seeks in the prison records system. (Id. at 3-5.) He also attests that he has conducted a review of Plaintiff's file and has uncovered no evidence lending support to Franklin's claims against the Defendants. (Id. at 2-5.)

Interrogatories must, to the extent they are not objected to, be answered under oath by the party to whom they are directed. Fed. R. Civ. Pro. 33(b)(1), (3). Further, if a responding party wishes to supplement his responses, he must do so under oath. See Knights Armament Co. v. Optical Sys. Tech., Inc., 254 F.R.D 463, 466-67 (M.D. Fla. 2008), aff'd, 254 F.R.D. 470 (M.D. Fla. 2008) (affirming sanction). Accordingly, to the extent Borg's Declaration is offered to relieve Defendants of the obligation to provide complete answers under oath, it will not suffice. If Defendants wish to supplement their responses, each must do so under oath. Plaintiff's Motion to Compel further responses to Hopper interrogatory 5 and Trujillo interrogatories 8-10 [ECF No. 130] is therefore GRANTED.

b. Hopper interrogatories 3 and 4

Franklin asks Hopper in interrogatory 3, "Did you tell Officer Trujillo and Officer Haley, in A-2 building on August 12, 2007, to not allow Plaintiff to go to the outside recreation yard on A-yard at Calipatria State Prison?" ([Am.] Mot. Compel Attach. #1 Ex. D, at 55, ECF No. 130.) Plaintiff inquires in Hopper interrogatory 4, "On August 12, 2007, did you tell Officer Trujillo and Officer Haley to confine Plaintiff to his cell on A-facility at Calipatria State Prison?" (Id. at 56.) Defendant objected that both questions were vague and irrelevant. (Id. at 55-56.)

Hopper responded to both interrogatories by stating, "I don't recall. If plaintiff wasn't allowed to go to the outside recreation yard there may have been numerous reasons why he couldn't go and I don't know what the specific reason was, if this event even happened." (Id. at 56.) Franklin now moves to compel and argues that Hopper did not refer to appropriate prison records in his responses. ([Am.] Mot. Compel 6, ECF No. 130.)

In his Opposition to both interrogatories, Hopper contends that his response is sufficient because he does not remember the alleged conversations occurring, and a review of Plaintiff's central file yielded no evidence that Defendant confined Franklin to his cell or did anything to cause him pain and suffering. (Opp'n Attach. #3 Separate Statement 28-29, ECF No. 116 (citing to id. Decl. Borg Attach. #2).) Hopper maintains that Franklin's "insistence on a further response borders on harassment." (Id.)

As discussed above, in addition to stating that he does not recall the events in question, Hopper must describe under oath why he is unable to provide the information requested and describe the efforts made to obtain the information. Borg's Declaration does not relieve Hopper of the obligation to provide his answers under oath. Plaintiff is entitled to supplemental, verified responses, and the Motion to Compel further responses to interrogatories 3 and 4 [ECF No. 130] is GRANTED.

c. Trujillo interrogatory 1

In Trujillo interrogatory 1, Plaintiff asks, "How long did you work at Calipatria State Prison? (Please give dates.)" ([Am.] Mot. Compel Attach. #1 Ex. D, at 62, ECF No. 130.) Defendant objected on privacy and privilege grounds. (Id.) He also argued that the question was unrelated to any claim or defense of any party. (Id.)

Still, Trujillo responded by stating, "About 9 years. I don't remember exactly." (Id. at 63.) Franklin moves to compel on the basis that Trujillo did not refer to appropriate prison records in his response. ([Am.] Mot. Compel 4, ECF No. 130.)

Defendant states that he did not remember exactly when he began working at Calipatria, yet his answer is sufficient because the nine-year period covers the incidents in question and corresponds to the Plaintiff's stay at Calipatria. (Opp'n Attach. #3 Separate Statement 17, ECF No. 116.) In the Opposition, Trujillo further submits that upon further investigation he began working at Calipatria in January or February of 2002. (Id.)

Here, Franklin asks Trujillo to provide the dates that he was employed at Calipatria State Prison. Defendant did not provide this supplemental information under oath. For this reason, Defendant's response is insufficient, and the Motion to Compel a further response to Trujillo's interrogatory 1 [ECF No. 130] is GRANTED.

d. Madden interrogatory 10

Franklin inquires in Madden interrogatory 10, "Why was Plaintiff found guilty of a serious rule violation for calling an officer a stupid motherfucker?" ([Am.] Mot. Compel Attach. #1 Ex. D, at 79, ECF No. 130.) Defendant objected that the question was vague, overbroad, unduly burdensome, calls for a legal conclusion, and is unrelated to any claim or defense. (Id. at 79-80.)

Captain Madden then answered by stating, "I wasn't the senior hearing officer. He probably was found guilty because disrespecting an officer is a serious rule violation." (Id. at 80.) In his Motion to Compel, Plaintiff states "R. Madden, interrogatory no. 10 unsatisfactory answer, chairperson of the committee that used the rule violation for C-status, did not refer to records [sic]." ([Am.] Mot. Compel. 8, ECF No. 130.) It is unclear why Franklin feels a further response is required.

Defendant urges that his response is sufficient because Plaintiff's interrogatory calls for a qualitative answer --Madden's opinion. (Opp'n Attach. #3 Separate Statement 50, ECF No. 116.) He contends that the question "affords Captain Madden much discretion in answering." (Id.)

In his answer, Madden does not clarify why he is unable to report the basis given for finding Franklin guilty of a serious rule violation, even if he was not the "senior hearing officer." Further, he does not articulate under oath any efforts made to obtain the information needed to answer the interrogatory. Accordingly, the Motion to Compel a further response to Madden interrogatory 10 [ECF No. 130] is GRANTED.

e. Vargas interrogatory 16

Franklin asks in Vargas interrogatory 16, "Have you passed out or distributed inmates' indigent envelopes in the past or present in A-2 Building at Calipatria State Prison?" ([Am.] Mot. Compel Attach. #1 Ex. D, at 116, ECF No. 130.) Defendant objected that the question was vague, overbroad, and irrelevant. (Id.) He then responded by stating, "Yes. Almost once a month." (Id. at 117.) Franklin moves to compel on the basis that Vargas did not refer to appropriate prison records in his response. ([Am.] Mot. Compel 3, ECF No. 130.)

In Opposition, Plaintiff alleges that he answered Plaintiff's question by admitting that he distributed inmates' indigent envelopes in the past. (Opp'n Attach. #3 Separate Statement 14, ECF No. 116.) Defendant has sufficiently responded to Franklin's interrogatory. Accordingly, the Motion to Compel a further response to Vargas interrogatory 16 [ECF No. 130] is DENIED.

3. Interrogatories where objections were waived

a. Vargas interrogatory 15

Plaintiff inquires in Vargas interrogatory 15, "What officers were working with you on third watch in A-2 Building at Calipatria State Prison, on July 18, 2007 and July 25, 2007?" ([Am.] Mot. Compel Attach. #1 Ex. D, at 116, ECF No. 130.) Vargas objected that the question was vague, overbroad, and irrelevant. (Id.)

Defendant answered by stating, "I don't know." (Id.) Franklin moves to compel because Vargas did not refer to appropriate prison records in his response. ([Am.] Mot. Compel 4, ECF No. 130.)

i. Waived objections

In his Opposition, Vargas contends that acquiring prison records would needlessly add to the cost of litigation. (Opp'n Attach. #3 Separate Statement 14, ECF No. 116.) The Federal Rules of Civil Procedure provide that any ground for objection to an interrogatory that is not stated in a timely manner is waived unless the party's failure to object is excused by the court for good cause shown. Fed. R. Civ. P. 33(b)(4); see Mancia v. Mayflower Textile Svcs. Co., 253 F.R.D. 354, 359 (D. Md. 2008). Objections generally must be served within 30 days of the service of the interrogatories. Fed. R. Civ. P. 33(b)(2). Vargas did not initially object on the ground that procuring the records needed to answer this interrogatory would needlessly increase the cost of litigation. (Compare [Am.] Mot. Compel Attach. #1 Ex. D, at 116, ECF No. 130, with Opp'n Attach. #3 Separate Statement 14, ECF No. 116.) Furthermore, this objection was made without determining whether any responsive records exist or what efforts would be required to locate them. (See Opp'n Attach. #3 Separate Statement 13-14, ECF No. 116.) Vargas waived this belated and conclusory objection.

ii. Sufficiency of Vargas's response

Next, Vargas argues that his response is sufficient because

(1) he does not know who was working with him on July 18 and 25, 2007; (2) he has no documents in his possession that contain the information; and (3) assuming he could find relevant work schedules reflecting who he was working with on those days, prison staffing changes daily, so there is no guarantee that the work schedules would be accurate. (Opp'n Attach. #3 Separate Statement 13-14, ECF No. 116 (citing id. Decl. Borg Attach. #2).) Again, these statements were not made under oath. Defendant has failed to provide the information requested by Franklin, and he has failed to state under oath why he is unable to provide it. Borg's statements do not relieve Vargas of the obligation to do so. The Motion to Compel a further response to Vargas interrogatory 15 [ECF No. 130] is GRANTED.

b. Davis interrogatory 1

In Davis interrogatory 1, Plaintiff asks, "How long, from the beginning until the end or departure, were you lieutenant on A-facility at Calipatria State Prison?" ([Am.] Mot. Compel Attach. #1 Ex. D, at 92, ECF No. 130.) Davis objected on privacy and privilege grounds. (Id.) He also objected that the information sought by Franklin was unrelated to any claim or defense. (Id.) Defendant answered by stating, "I don't know. I was there for about nine and a half years as a lieutenant and twenty years in total." (Id. at 93.) Franklin moves to compel on the basis that Davis did not refer to appropriate prison records in his response. ([Am.] Mot. Compel 6, ECF No. 130.)

i. Waived objections

Davis now objects that the interrogatory is vague as to time and that his reference to "'from the beginning until the end or departure' provides no additional clarification." (Opp'n Attach. #3 Separate Statement 32-33, ECF No. 116.) Davis did not initially object on this ground, so the objection was waived.

ii. Sufficiency of Davis's response

Defendant maintains that his answer to interrogatory 1 is sufficient because he has stated how long he has worked as a lieutenant on A-Facility, and his answer covers the time period in question. (Id.) He asserts that in light of his response, conducting further research would be a waste of time and resources. (Id. at 33.) Davis has answered the question asked and stated how long he was a lieutenant in Calipatria's A-Facility. Accordingly, and the Motion to Compel a further response to Davis interrogatory 1 [ECF No. 130] is DENIED.

c. Trujillo interrogatory 12

In Trujillo interrogatory 12, Plaintiff inquires, "As an employee of California Department of Corrections and Rehabilitation, how many times has a civil complaint been brought against you?" ([Am.] Mot. Compel Attach. #1 Ex. D at 68, ECF No. 130.) Defendant objected on privacy, privilege, and relevance grounds. (Id. at 68-69.) He also objected that the interrogatory seeks information unrelated to any claim or defense of any party. (Id. at 69.) Trujillo responded by stating, "This is the only one I know of." (Id.) Franklin moves to compel because Defendant did not refer to appropriate prison records in his response. ([Am.] Mot. Compel 5, ECF No. 130.)

i. Waived objections

In his Opposition, Trujillo objects that the information sought by Plaintiff is a public record. (Opp'n Attach. #3 Separate Statement 27, ECF No. 116.) Defendant, however, did not initially object on this ground. So, as discussed, the objection was waived.

ii. Sufficiency of Trujillo's response

Trujillo then states that it is not uncommon for correctional officers to be sued by inmates for claims relating to their work, and Defendant does not recall if he was previously sued. (Id.) Accordingly, he claims that no further response is warranted. (Id.) In his response, Defendant does not state under oath the steps he took to investigate how many civil complaints have been brought against him. Trujillo's interrogatory answer differs from the statement in his Opposition. In light of the discrepancy, the interrogatory answer is not sufficient. The Motion to Compel a further response to Trujillo interrogatory 12 [ECF No. 130] is therefore GRANTED.

4. Interrogatories objected to on relevance grounds

a. Trujillo interrogatory 4

In Trujillo interrogatory 4, Franklin asks Defendant, "Did Plaintiff bring two separate civil complaints against you?" ([Am.] Mot. Compel Attach. #1 Ex. D, at 64, ECF No. 130.) Defendant objected that the question was vague, overbroad, and irrelevant. (Id.) Defendant answered the interrogatory by stating, "I don't know." (Id.) Plaintiff moves to compel on the basis that Trujillo did not refer to appropriate prison records in his response. ([Am.] Mot. Compel 5, ECF No. 130.)

i. Relevance

In his Opposition, Defendant contends that the interrogatory seeks irrelevant information. (Opp'n Attach. #3 Separate Statement 20, ECF No. 116.) This interrogatory seeks information that is relevant to Franklin's accusation that Trujillo retaliated against Plaintiff after he brought a lawsuit against Defendant in 2007.

The existence of a prior lawsuit against Trujillo is the basis for Plaintiff's current retaliation claim. The objection is overruled.

ii. Sufficiency of Trujillo's response

Officer Trujillo submits that Franklin is the best person to determine if he brought two separate suits against Defendant. (Id.) Trujillo also argues that no further response is required because Defendant answered "as best as he could[.]" (Id.) In the context of the claims against him, Trujillo's response is insufficient because he did not state under oath that he is unable to provide the information Plaintiff requests. Nor does he describe under oath the efforts made to obtain the information. The Motion to Compel a further response to Trujillo interrogatory 4 [ECF No. 130] is GRANTED.

b. Trujillo interrogatory 7

Franklin asks, "Did your supervisor, Sgt. Portellio, tell you that Plaintiff has to be allowed to perform his work assignment and you still refused to allow him to perform his work assignment?" ([Am.] Mot. Compel Attach. #1 Ex. D, at 65, ECF No. 130.) Defendant objected that the question was vague, overbroad, and irrelevant. (Id. at 65-66.) Trujillo answered by stating, "I don't recall." (Id. at 66.) Plaintiff moves to compel because Trujillo did not refer to appropriate prison records in his response. ([Am.] Mot. Compel 5, ECF No. 130.)

i. Relevance

In his Opposition, Trujillo urges that he is not accused of preventing Plaintiff from performing his work assignment. (Opp'n Attach. #3 Separate Statement 22, ECF No. 116.) Rather, he asserts that the only allegation against him is that he prevented Plaintiff from going to the recreation yard on a single day. (Id.) The Court construes this as a relevance objection.

In his Complaint, Franklin maintains that Trujillo confined Franklin to his cell on August 12, 2007. (Fourth Am. Compl. 10, ECF No. 79.) Plaintiff does not allege that Trujillo prevented him from working. Nevertheless, refusing to permit Franklin to go to the recreation yard or his work assignment is relevant to Plaintiff's retaliation claim. Defendant also objects that the interrogatory is vague. (Opp'n Attach. #3 Separate Statement 22, ECF No. 116.) This ...


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