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Shepard v. Cohen

United States District Court, E.D. California

August 12, 2014

COHEN, et al., Defendants.


GARY S. AUSTIN, Magistrate Judge.


Lamont Shepard ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 U.S.C. ยง 1983. Plaintiff filed the Complaint commencing this action on March 30, 2011. (Doc. 1.) This action now proceeds on the Second Amended Complaint against defendants Dr. Cohen, Sgt. J. Lopez, Correctional Officer (C/O) Z. Dean, C/O J. Campbell, and Vera Brown (LVN) on Plaintiff's due process claim and against defendants Dr. Cohen, Sgt. J. Lopez, C/O Z. Dean, and C/O J. Campbell on Plaintiff's excessive force claim. (Doc. 41.) Defendants Lopez, Dean, and Campbell have filed an Answer to the Second Amended Complaint. (Doc. 43.) To date, defendants Cohen and Brown have not been served with process or appeared in this action. (Court Record.)

On January 29, 2014, the Court issued a Scheduling Order establishing a deadline of September 29, 2014, for the parties to complete discovery, including the filing of motions to compel. (Doc. 22.) On May 9, 2014, Plaintiff filed a motion to compel production of documents from defendants Lopez, Dean, and Campbell ("Defendants"). (Doc. 40.) On May 23, 2014, Defendants filed an opposition to the motion to compel. (Doc. 42.) Plaintiff has not filed a reply to the opposition, and his deadline under Local Rule 230 has expired. L. R. 230( l ). (Court Record.)

Plaintiff's motion to compel, filed on May 9, 2014, is now before the court.


A. Federal Rules of Civil Procedure 26(b), 34, and 37(a)

Under Rule 26(b), "[U]nless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense - including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.[1] "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).

Pursuant to Rule 34(a) of the Federal Rules of Civil Procedure, "any party may serve on any other party a request to produce and permit the party making the request... to inspect and copy any designated documents... which are in the possession, custody or control of the party upon whom the request is served." Fed.R.Civ.P. 34(a)(1). "[A] party need not have actual possession of documents to be deemed in control of them." Clark v. Vega Wholesale Inc. , 181 F.R.D. 470, 472 (D.Nev. 1998) quoting Estate of Young v. Holmes , 134 F.R.D. 291, 294 (D.Nev. 1991). "A party that has a legal right to obtain certain documents is deemed to have control of the documents." Clark , 181 F.R.D. at 472; Allen v. Woodford, No. CV-F-05-1104 OWW LJO , 2007 WL 309945, *2 (E.D.Cal. Jan. 30, 2007) (citing In re Bankers Trust Co. , 61 F.3d 465, 469 (6th Cir.1995)); accord Evans v. Tilton, No. 1:07CV01814 DLB PC , 2010 WL 1136216, at *1 (E.D.Cal. Mar. 19, 2010).

Under Rule 34(b), the party to whom the request is directed must respond in writing that inspection and related activities will be permitted as requested, or state an objection to the request, including the reasons. Fed.R.Civ.P. 34(b)(2). Also, "[a] party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request." Fed.R.Civ.P. 34(b)(E)(I).

Pursuant to Rule 37(a), a party propounding discovery may seek an order compelling disclosure when an opposing party has failed to respond or has provided evasive or incomplete responses. Fed.R.Civ.P. 37(a)(3)(B). "[A]n evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond." Fed.R.Civ.P. 37(a)(4). "It is well established that a failure to object to discovery requests within the time required constitutes a waiver of any objection." Richmark Corp. v. Timber Falling Consultants , 959 F.2d 1468, 1473 (9th Cir. 1992) (citing Davis v. Fendler , 650 F.2d 1154, 1160 (9th Cir. 1981)). The moving party bears the burden of demonstrating "actual and substantial prejudice" from the denial of discovery. See Hallett v. Morgan , 296 F.3d 732, 751 (9th Cir. 2002) (citations omitted.).


Plaintiff requests a court order compelling Defendants to make further responses to Plaintiff's Request for Production of Documents ("RFP") Nos. 5, 7, 9, 11, and 13. Plaintiff has re-stated the relevant five RFP's for the court's review. However, Plaintiff has not provided any evidence of Defendants' responses to the five RFP's, made any argument whatsoever in support of his motion, nor filed a reply to Defendants' opposition.

Based on the lack of any argument by Plaintiff, the court finds that Plaintiff has not met his burden of demonstrating actual and substantial prejudice from the denial of discovery. A motion to compel must be accompanied by a copy of Plaintiff's discovery requests at issue and a copy of Defendants' responses to the discovery requests. Further, as the moving party, Plaintiff bears the burden of informing the court, for each disputed response, why Defendants' responses are not justified. Plaintiff may not simply assert that he is dissatisfied with some of Defendants' responses, without argument or ...

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