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Rapalo v. Lopez

United States District Court, E.D. California

November 7, 2014

WALTER RAPALO, Plaintiff,
v.
S. LOPEZ, et al., Defendants

Walter Rapalo, Plaintiff, Pro se, CHOWCHILLA, CA.

For S. Lopez, - Schaffer, A. Manasrah, Defendants: James C. Phillips, LEAD ATTORNEY, Office of the Attorney General, Sacramento, CA.

ORDER DENYING PLAINTIFF'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS (ECF No. 36)

Barbara A. McAuliffe, UNITED STATES MAGISTRATE JUDGE.

I. Introduction

Plaintiff Walter Rapalo (" Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds against Defendants Lopez, Schaffer and Manasrah for deliberate indifference to serious medical needs in violation of the Eighth Amendment to the United States Constitution.

Currently pending before the Court is Plaintiff's motion, filed on September 24, 2014, seeking to compel Defendants' production of documents. (ECF No. 36.) Defendants opposed the motion on October 7, 2014. (ECF No. 37.) Plaintiff did not file a timely response and the motion is deemed submitted. Local Rule 230(l).

II. Motion to Compel Responses to Requests for Production of Documents

A. Standard

A party may serve on any other party a request within the scope of Rule 26(b) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody or control: any designated documents or tangible things. Fed.R.Civ.P. 34(a)(1). " Property is deemed within a party's 'possession, custody, or control' if the party has actual possession, custody, or control thereof or the legal right to obtain the property on demand." Allen v. Woodford, 2007 WL 309945, at *2 (E.D. Cal. Jan. 30, 2007) (citing In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir. 1995)); accord Bovarie v. Schwarzenegger, 2011 WL 719206, at *4 (S.D. Cal. Feb. 22, 2011); Evans v. Tilton, 2010 WL 1136216, at *1 (E.D. Cal. Mar. 19, 2010).

In responding to discovery requests, a reasonable inquiry must be made, and if no responsive documents or tangible things exist, Fed.R.Civ.P. 26(g)(1), the responding party should so state with sufficient specificity to allow the Court to determine whether the party made a reasonable inquiry and exercised due diligence, Uribe v. McKesson, 2010 WL 892093, at *2 (E.D. Cal. Mar. 9, 2010). If responsive documents do exist but the responsive party claims lack of possession, control, or custody, the party must so state with sufficient specificity to allow the Court (1) to conclude that the responses were made after a case-specific evaluation and (2) to evaluate the merit of that response. Ochotorena v. Adams, 2010 WL 1035774, at *3-4 (E.D. Cal. Mar. 19, 2010). As with other forms of discovery, boilerplate objections do not suffice. Fed.R.Civ.P. 34(b)(2)(B), (C).

B. Discussion

On April 23, 2014, Plaintiff served defendants with a First Request for Production of Documents (" POD"). (ECF No. 37, Ex. A.) Defendants responded on June 19, 2014. (ECF No. 37, Ex. B.) Plaintiff now seeks further responses to requests 6, 7, 8, and 12, along with continued compliance with requests 1-5, 9, and 10.

POD 6: All medical operating procedures in place at Kern Valley State Prison while Plaintiff was confined there, between January 2009 through February 2012. This is to include all official and non official/non-published medical operating procedures, including but not limited to any " underground rules"; non-published but written directives in the form of memo, e-mail, etc., concerning policies either granting or denying surgeries; and any document that states a policy, directive, or suggestion that certain surgeries are to be denied or granted based on financial considerations or any other non-medical rationale.

Response: Defendants are presently unaware of any such responsive documents. However, discovery is continuing and defendants reserve the right to amend this response[] as ...


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