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Hupp v. San Diego County

United States District Court, S.D. California

June 3, 2014

PAUL HUPP, Plaintiff,


RUBEN B. BROOKS, Magistrate Judge.

Plaintiff Paul Hupp's Motion to Compel Discovery on San Diego County, James Patrick Romo and Peter Myers [ECF No. 154] ("Motion to Compel") was filed nunc pro tunc to September 5, 2013. Defendants filed their response in opposition [ECF No. 172], and Hupp filed a reply [ECF No. 185].

On September 27, 2013, Defendants San Diego County, James Romo and Peter Myers filed a Motion for Protective order [ECF No. 160]. Plaintiff opposes the motion [ECF No. 169]. Defendants filed a reply in support of the motion [ECF No. 177].

The hearing on the motions was set for October 28, 2013. The Court determined the matters to be suitable for resolution without oral argument, submitted the motions on the parties' papers pursuant to the Local Civil Rule 7.1(d), and vacated the motion hearing [ECF No. 181]. For the following reasons, Plaintiff's Motion to Compel is DENIED, and Defendants' Motion for Protective Order is DENIED as moot.


Plaintiff Paul Hupp, proceeding pro se, commenced this action on February 28, 2012, pursuant to 42 U.S.C. § 1983. (Compl. 1, ECF No. 1.) Plaintiff's Third Amended Complaint was filed on August 28, 2012 [ECF No. 64], naming as Defendants San Diego County, [1] City of San Diego, City of Beaumont, [2] James Patrick Romo, [3] Raymond Wetzel, William Kiernan, [4] Peter Myers, [5] and Joseph Cargel. (Third Am. Compl. 1, ECF No. 64.) Hupp's action arises from his contempt of court charges and conviction in San Diego Superior Court in 2011. (See id. at 4-5, 7-8.)

Plaintiff alleges that in November 2010, Jeffrey Freedman[6] obtained a three-year restraining order against Hupp in San Diego Superior Court. (Id. at 4.) In July 2011, Freedman brought contempt charges against Hupp for sending letters to Freedman in violation of the restraining order. (Id. at 5.) Defendant William Kiernan, an attorney from the San Diego County Office of the Assigned Counsel, was appointed to represent Hupp. (Id.) Hupp alleges that Kiernan failed to investigate the case, request discovery, and communicate with Hupp; and Kiernan's lack of preparation amounted to ineffective assistance of counsel. (Id. at 6-7.) Plaintiff also claims that Defendants performed DNA and fingerprint tests on the letters and envelopes allegedly sent by him, but Defendants wrongfully withheld this exculpatory forensic evidence until February 2012, when they produced the evidence in another court case. (Id. at 11-12.)

Plaintiff claims that he was wrongfully convicted based on insufficient evidence and sentenced to twenty-five days in custody, and a $5, 000 fine was imposed. (Id. at 7.) Hupp alleges that the trial judge improperly denied him custody credits under California Penal Code section 4019. (Id. at 8.)

On January 3, 2012, Hupp reported to the San Diego Sheriff's Department to serve his twenty-five day sentence. (Id. at 9.) Plaintiff claims that he told the Sheriff's Department personnel that they had to apply to apply Penal Code section 4019 credits to his sentence, but they refused to do so. (Id.) Hupp also alleges he was denied access to the law library and was prevented from filing legal papers. (Id. at 10-11.)

Plaintiff contends that Defendants never informed him that the San Diego District Attorney's office, San Diego Police Department, Deputy District Attorney Romo, and Detective Wetzel were investigating and assisting Deputy Attorney General Drcar in prosecuting the November 2011 civil contempt proceedings against Hupp. (Id. at 7, 11.) Hupp also asserts that Defendants failed to disclose exculpatory DNA and fingerprint evidence obtained from the letters Freedman received, in violation of Plaintiff's due process rights under Brady v. Maryland , 373 U.S. 83 (1963). (Id. at 11-12.)

On the basis of these allegations, Plaintiff brought claims for violation of civil rights; conspiracy to withhold Brady evidence; interference with legal mail and free speech; unlawful detention; intentional infliction of emotional distress; as well as gross negligence in the hiring, training, supervision, and retention of prosecutors and peace officers. (See id. at 12-29.) Hupp also alleged that Defendants' actions caused him emotional and psychological injuries, embarrassment, humiliation, shame, fright, fear, and grief. (Id. at 14, 20-21.) For his injuries, Plaintiff seeks compensatory and punitive damages exceeding $75, 000, as well as declaratory and injunctive relief. (Id. at 35-37.)

After the rulings on Defendants' substantive motions, the following claims remain in the case: (1) the withholding of "Brady" evidence, asserted against Defendants San Diego Police Department and Wetzel (claim one); (2) conspiracy to withhold "Brady" evidence, brought against Defendants San Diego Police Department and Wetzel (claim two); (3) declaratory and injunctive relief against San Diego Sheriff's Department for the denial of section 4019 credits (claim eleven); and (4) interference with Plaintiff's free speech, right to petition the government, and legal proceedings due to the wrongful search and seizure by San Diego District Attorney's Office and Cargel (claim twelve[7]).


A. Motion to Compel Discovery

"Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.... Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1). 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 resisting discovery bears the burden of opposing disclosure. Miller v. Pancucci , 141 F.R.D. 292, 299 (C.D. Cal. 1992).

As the moving party, Hupp must identify (1) the discovery requests that are the subject of his motion to compel, (2) which of the defendants' responses are disputed, (3) why the responses are deficient, (4) the reasons defendants' objections are without merit, and (5) the relevance of the requested information to the prosecution of this action. See, e.g., Brooks v. Alameida, No. CIV S-03-2343 JAM EFB P , 2009 WL 331358, at *2 (E.D. Cal. Feb. 10, 2009) ("Without knowing which responses plaintiff seeks to compel or on what grounds, the court cannot grant plaintiff's motion."); Ellis v. Cambra, No. CIV 02-05646-AWI-SMS PC , 2008 WL 860523, at *4 (E.D. Cal. Mar. 27, 2008) ("Plaintiff must inform the court which discovery requests are the subject of his motion to compel, and, for each disputed response, inform the court why the information sought is relevant and why Defendant's objections are not justified.").

B. Pro Se Litigants

"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).


A. Motion to Compel Discovery From Romo and Myers

Plaintiff moved to compel discovery from Defendants County of San Diego, James Patrick Romo, and Peter Myers. (Pl.'s Mot. Compel Mem. P. & A. 3, ECF No. 154.) Because all claims against Romo and Myers have been dismissed, [ECF Nos. 221, 228], Plaintiff may not seek discovery under Rules 33 and 34 of the Federal Rules of Civil Procedure from Defendants dismissed from the case. See Stearns v. Flores, No. CV F 00 6331 AWILJOP, 2006 WL 1980334, at *1 (E.D. Cal. 2006) (denying motion to compel discovery from dismissed defendants in a § 1983 case). Accordingly, the Court denies Plaintiff's Motion to Compel Discovery from Defendants Romo and Myers.

B. Motion to Compel Discovery From San Diego County

Plaintiff has served six requests for production on Defendant San Diego County. (Pl.'s Mot. Compel Mem. P. & A. ...

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