United States District Court, E.D. California
ORDER REQUIRING DEFENDANTS TO RE-SERVE GA 154 RETENTION SCHEDULE AND FILE IT WITHIN FIFTEEN DAYS
ORDER ADDRESSING DISCOVERY DISPUTE REGARDING DEFENDANTS' SUPPLEMENTAL RESPONSES
AND DENYING PLAINTIFF'S REQUEST FOR AN ORDER DIRECTING FURTHER SUPPLEMENTAL
RESPONSES (Docs. 47, 67, 74, 75, and 77) ORDER DENYING PLAINTIFF'S SECOND MOTION
TO COMPEL, DENYING PLAINTIFF'S MOTION TO AMEND FIRST MOTION TO COMPEL, AND
STRIKING AMENDED FIRST MOTION TO COMPEL Docs. 58, 70, and 71)
SHEILA K. OBERTO, Magistrate Judge.
Plaintiff Dana McMaster, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on August 6, 2010. This action is proceeding on Plaintiff's second amended complaint, filed January 3, 2013, against Defendants Carlson, Garcia, Sedwick, Espitia, and John Doe 1 for failing to protect him, in violation of the Eighth Amendment, and against Defendant Carlson for retaliation, in violation of the First Amendment. The events giving rise to Plaintiff's claims allegedly occurred between March 7, 2009, and April 20, 2009, at Pleasant Valley State Prison in Coalinga, California.
On February 6, 2014, the Court granted Plaintiff's motion to compel filed on August 16, 2013 ("first motion to compel"), and it ordered Defendants to serve supplemental responses to the six discovery requests at issue. (Doc. 67.) The parties were ordered to meet and confer if a dispute arose regarding the supplemental responses, and the parties were directed to file status reports if, after meeting and conferring, they were unable to resolve the dispute. ( Id. )
The Court also ordered the parties to meet and confer in an effort to resolve the thirteen discovery requests at issue in Plaintiff's second motion to compel filed on October 4, 2013 ("second motion to compel"). ( Id. ) If the parties were unable to resolve those disputes, Defendants were directed to file an opposition to Plaintiff's motion. ( Id. )
On April 3, 2014, Defendants filed an opposition to Plaintiff's second motion to compel, thereby signaling that the parties did not succeed in resolving their disputes when they met and conferred in compliance with the Court's order. (Doc. 69.) Plaintiff filed a reply on April 28, 2014, and his second motion to compel has been submitted upon the record without oral argument. (Doc. 72.) Local Rule 230( l ).
On May 14, 2014, Plaintiff filed a status report and on May 19, 2014, Defendants filed a status report, signaling that the parties were also unsuccessful in resolving their disputes over Defendants' supplemental responses, served in compliance with the Court's order. (Docs. 74, 75.) Following his receipt of Defendants' status report, Plaintiff filed a supplemental status report. (Doc. 77.)
A. First Motion to Compel - Dispute Over Supplemental Responses
On February 6, 2014, the Court granted Plaintiff's first motion to compel, filed on August 16, 2013, and ordered Defendants Sedwick and Garcia to serve supplemental responses as to six discovery requests: four interrogatories ("ROGs") and two document production requests ("PODs"). Plaintiff was dissatisfied with the supplemental responses and, in compliance with the order of February 6, 2014, he sent Defendants' counsel a letter. The parties subsequently met and conferred twice by telephone, but they were unable to resolve the disputes. For the reasons that follow, the Court finds that Defendants Sedwick and Garcia's supplemental responses are sufficient and Plaintiff's request for an order requiring further responses is denied.
1. Sedwick ROG 5 and Garcia ROG 6
a. Prior Ruling
Sedwick ROG 5: "Please state the name, affiliation, and title of the officer who was charged with escorting inmate T. Smedley, CDCR No. G-34976, to Charlie Facilities [sic] Building 5, cell number 214, at Pleasant Valley State Prison, on March 18, 2009, at approximately 7:30 p.m." (Doc. 47, Motion, 17:18-21.)
Response: "After a reasonable inquiry, Responding Party does not know." ( Id. , 17:22-23.)
Garcia ROG 6: "Please state the name, affiliation, and title of the officer who was charged with escorting inmate T. Smedley, CDCR No. G-34976 to Charlie Facilities [sic] Building 5, cell number 214, at Pleasant Valley State Prison." ( Id. , 23:16-19.)
Response: "After a reasonable inquiry, Responding Party does not know." ( Id. , 23:20-21.)
Ruling: Plaintiff is attempting to obtain information regarding the identity of Defendant John Doe 1. The information is relevant and discoverable, and Defendants do not argue otherwise. Fed.R.Civ.P. 26(b)(1). Defendants contend, however, that they cannot be expected to remember the identity of the officer conducting an escort on a specific date more than four years ago and that they responded to the best of their ability. (Doc. 54, Opp., 2:19-23 & 3:15-18.)
Defendants are required to make a reasonable inquiry; they may not rely merely on their memory of events. Gorrell , 292 F.R.D. at 632; L.H. v. Schwarzenegger , 2007 WL 2781132, *2. Although Defendants stated they made a reasonable inquiry in their discovery responses, given the possible existence of documentary evidence regarding the cell assignment, identified by Defendant Sedwick as a CDC 154 in response to ROG 4, and their unpersuasive argument in opposition to Plaintiff's motion to compel leave, the Court lacks the requisite assurance that Defendants in fact made a reasonable inquiry. Defendants are ordered to serve supplemental responses to ROGs 5 and 6. The supplemental responses must be sufficient to demonstrate that a reasonable inquiry was made, given Plaintiff's contention that a document containing this information exists. E.g., Anderson v. Hansen , No. 1:09-cv-01924, 2012 WL 4049979, at *4 (E.D. Cal. Sep. 13, 2012); Gorrell , 292 F.R.D. at 632.
(Doc. 67, Order, 7:13-8:9 (emphasis added).)
b. Ruling on Dispute Over Supplemental Responses
1) Supplemental Responses
Response to Sedwick ROG 5 and Garcia ROG 6: "Responding Party still does not know after conducting a reasonable inquiry, explained as follows: A GA 154 ("Inmate Transfer Form") is a form that documents when an inmate is moved from his cell and placed in a different cell in a different building or different facility. The form documents the old and new cell assignments, it is signed and dated by the sergeant or lieutenant assigned to the building the inmate is leaving, and it is stamped by the Central Control to show that the new cell assignment has been approved. The name of the officer who escorts the inmate is not on the GA 154. Responding Party asked the Pleasant Valley State Prison litigation coordinator for a copy of the GA 154 that documented inmate Smedley (G-34976) getting moved into cell 214 on C Facility, Building 5 on March 18, 2009. The litigation coordinator looked for the GA 154 in all of the buildings that would normally keep a copy of it. None of the buildings had a copy of the GA 154 that documented Smedley getting moved into Plaintiff's cell on March 18, 2009. GA 154s are retained by the prison for one year before they are discarded.
Plaintiff may be able to determine who escorted Inmate Smedley to his cell on March 18, 2009, by reading the names of the Search and Escort (S&E) Officers listed on the PPAS/Custody Sign-in/Out Sheets as being on duty in C Facility that day. The March 18, 2009, C Facility PPAS/Custody Sign-in/Out sheets were produced to Plaintiff in Attachment 4 to Defendant Carlson's Response to Plaintiff's Request for Production of Documents, Set One. Responding Part[ies] reviewed this document and it did not assist [them] in responding to [interrogatories no. 5 and no. 6]."
(Pl. Stat. Rpt., 24:4-21 & 30:4-21.)
As an initial matter, during their discovery conference, Plaintiff asked for the form GA 154 retention schedule and Defendants state they provided it with Defendant Garcia's second supplemental response to Plaintiff's request for the production of documents. (Doc. 75, Def. Stat. Rpt., 3:23-25.) Plaintiff contends, however, that the retention schedule was not included with Defendant Garcia's second supplemental POD response. (Doc. 77, Supp. Stat. Rpt., 4:7-17.) Defendants shall, within fifteen days, ensure Plaintiff is served by mail with a copy of the GA 154 retention schedule.
Other than the retention schedule that was promised to Plaintiff, Plaintiff is not entitled to any further response. In their supplemental responses, Defendants Sedwick and Garcia informed Plaintiff, under penalty of perjury, that after conducting a reasonable inquiry, they do not know who escorted inmate Smedley to cell number 214 on March 18, 2009. In support their supplemental response, Defendants informed Plaintiff that (1) GA 154 forms do not contain the names of the escorting officers, (2) they were unable to locate a GA 154 form documenting inmate Smedley's move into cell 214 on C Facility, Building 5, on March 18, 2009, and (3) GA 154 forms are retained for one year before they are discarded. Defendant's supplemental response is clearly sufficient under the Federal Rules of Civil Procedure and it addressed the concerns identified by the Court when it granted Plaintiff's motion to compel a supplemental response. Fed.R.Civ.P. 11(b), 26(g)(1), 33; Gorrell v. Sneath , 292 F.R.D. 629, 632 (E.D. Cal. 2013); L.H. v. Schwarzenegger , No. S-06-2042 LKK GGH, 2007 WL 2781132, at *2 (E.D. Cal. Sep. 21, 2007).
While the Court recognizes that Plaintiff is disinclined to trust the supplemental responses and the representations made by Defendants' counsel during the telephonic discovery conferences, he is in a position no different than any other civil litigant: in the absence of deficiencies such as those addressed in the prior order or of actual evidence of discovery abuse, he is required to accept the responses provided. Mere distrust and suspicion regarding discovery responses do not form a legitimate basis to further challenge responses which are facially sufficient, and Plaintiff is entitled neither to continue demanding additional and different evidence in support of discovery responses already provided nor to expand the scope of discovery beyond that sought in the initial discovery request. Fed.R.Civ.P. 11(b), 26(g)(1), 33; Gorrell , 292 F.R.D. at 632; L.H. , 2007 WL 2781132, at *2.
As Plaintiff was informed by counsel, signed discovery responses are themselves certifications to the best of the person's knowledge, information, and belief formed after a reasonable inquiry, Fed.R.Civ.P. 26(g)(1)(B) (quotation marks omitted), as are any signed filings presented to the Court, Fed.R.Civ.P. 11(b). See also Fed.R.Civ.P. 33(c). (Pl. Stat. Rpt., 4:24-26.) Further, as counsel is aware, Defendants are required to supplement their discovery responses should they learn that their responses were incomplete or incorrect, if the incomplete or incorrect information has not otherwise been made known to Plaintiff. Fed.R.Civ.P. 26(e)(1) (quotation marks omitted).
In conclusion, ROGs 5 and 6 sought the identity of the officer who escorted inmate Smedley. Defendants Sedwick and Garcia stated they do not know and they supported their supplemental responses with sufficient detail to demonstrate they made a reasonable inquiry. Fed.R.Civ.P. 33(b)(3); Gorrell , 292 F.R.D. at 632; L.H. , 2007 WL 2781132, at *2. Furthermore, Defendants provided the document they state may contain the information sought by Plaintiff. Plaintiff must accept the answer provided, and his request for an order requiring further response is denied.
2. Sedwick ROG 6, Garcia ROG 7, and Garcia PODs 1 and 7
a. Prior Ruling
Sedwick ROG 6: "Please list and identify each document, as the term is defined in Federal Rule of Civil Procedure 34(a)(1) that evidences, mentions, or refers to any of the facts set forth in Plaintiff Dana McMasters [sic] Complaint from March 7, 2009, to April 20, 2009." (Doc. 47, Motion, 17:24-27.)
Response: "Responding party is not aware of any documents." ( Id. , 18:1-2.)
Garcia ROG 7: "Please list and identify each document, as the term is defined in Federal Rule of Civil Procedure 34(a)(1) that evidences, mentions, or refers to any of the facts set forth in Plaintiff Dana McMaster's Complaint from March 7, 2009, to April 20, 2009." ( Id. , 23:22-25.)
Response: "Plaintiff's movement history; a CDC 114-D signed by Lieutenant Ybarra on 3/25/09; CDC 602-HC PVSP-27-09-12584, and the responses to it; a CDC 7219 for Plaintiff dated 3/18/09; a CDC 7219 for inmate Smedley (T-34976) dated 3/18/09; CDC 602 PVSP-C-09-00668, and the responses to it; a CDC 128B signed by Defendant Carlson on 3/26/09; a notice of unusual occurrence signed by Lieutenant Contreras on 3/18/09 with log or tracking number X-XX-XX-XXXX; CDC 7362s submitted by Plaintiff on 3/29/09 and 4/17/09; an outpatient interdisciplinary ...