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Gray v. Virga

United States District Court, E.D. California

April 1, 2015

BERNARDOS GRAY, JR., Plaintiff,
v.
T. VIRGA, et al., Defendants.

ORDER

ALLISON CLAIRE, Magistrate Judge.

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. ยง 1983. ECF No. 1. Pending before the court are plaintiff's motions to compel (ECF Nos. 48, 51, 56), which defendants have opposed (ECF Nos. 58, 60). Plaintiff has also filed a pretrial statement and three motions for court orders to have inmate witnesses appear at trial. ECF Nos. 52, 53, 54, 55. A motion for summary judgment has been filed by the defendants (ECF No. 64) and briefing is in progress.[1]

I. Plaintiff's Allegations

Plaintiff alleges that defendants Virga, Nielson, Gam, and Starnes violated his Eighth Amendment rights when they failed to protect him from an assault by another inmate. ECF No. 1 at 3-5. Specifically, he alleges that defendant Virga failed to properly train defendants Gam and Starnes in the mandatory requirements and procedures for cell searches in high risk security units. Id. at 3. He alleges that this resulted in Gam and Starnes failing to conduct a search before housing him with inmate Williams, who then assaulted him with a weapon. Id. Plaintiff alleges that in addition to failing to conduct a mandatory search before placing him in a cell with inmate Williams, defendants Gam and Starnes failed to stop the assault. Id. at 4. He alleges that when the assault began, Gam and Starnes deliberately sprayed plaintiff with pepper spray, rather than his assailant, and did not take any further action until the assault was over. Id. 4-5. Plaintiff alleges that defendant Nielson deliberately approved inmate Williams to house with plaintiff, despite knowing that Williams was "deemed a[n] obvious' danger to others in the general population." Id. at 4.

II. Motions to Compel

A. Discovery Dispute

Plaintiff has filed four motions to compel. The first motion, filed by the clerk on July 10, 2014 (ECF No. 44), [2] was denied as premature. ECF No. 50 at 3. Plaintiff's second motion to compel was held in abeyance pending the filing of the defendants' responses to plaintiff's requests.[3] Id. In the second motion, plaintiff moves the court for an order compelling all defendants to respond to his requests for production and defendants Gam and Starnes to respond to his requests for interrogatories. ECF No. 48 at 1; ECF No. 48-1. Though plaintiff identifies the specific requests he seeks to put at issue, he fails to provide the defendants' responses or fully explain the deficiency of each response or how the requests seek information reasonably calculated to lead to the discovery of admissible evidence. Id. Due to plaintiff's failure to provide the defendants' responses, the court ordered defendants to file copies of their responses (ECF No. 50), which they did (ECF No. 57).

The third motion to compel seeks to compel defendant Virga to respond to a request for production and defendants Gam and Starnes to respond to additional requests for interrogatories. ECF no. 51 at 1-2, 10-13.

Plaintiff's final motion to compel seeks to compel defendant Virga to respond to his requests for production. ECF No. 56 at 1-4. This motion largely overlaps his first motion to compel (ECF No. 48).

B. Standards Governing Discovery

The scope of discovery under Federal Rule of Civil Procedure 26(b)(1) is broad. Discovery may be obtained as to "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." Fed.R.Civ.P. 26(b)(1). Discovery may be sought of relevant information not admissible at trial "if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id. The court, however, may limit discovery if it is "unreasonably cumulative or duplicative, " or can be obtained from another source "that is more convenient, less burdensome, or less expensive;" or if the party who seeks discovery "has had ample opportunity to obtain the information by discovery;" or if the proposed discovery is overly burdensome. Fed.R.Civ.P. 26(b)(2)(C)(i)-(iii). The purpose of discovery is to make trial "less a game of blind man's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent, " U.S. v. Procter & Gamble Co., 356 U.S. 677, 682 (1958), and to narrow and clarify the issues in dispute, Hickman v. Taylor, 329 U.S. 495, 501 (1947).

Where a party fails to answer an interrogatory submitted under Fed.R.Civ.P. 33, or fails to produce documents requested under Fed.R.Civ.P. 34, the party seeking discovery may move for compelled disclosure. Fed.R.Civ.P. 37. "The party seeking to compel discovery has the burden of establishing that its request satisfies the relevancy requirements of Rule 26(b)(1). Thereafter, the party opposing discovery has the burden of showing that the discovery should be prohibited, and the burden of clarifying, explaining or supporting its objections." Bryant v. Ochoa, 2009 WL 1390794 at * 1 (S.D. Cal. May 14, 2009) (citations omitted). The opposing party is "required to carry a heavy burden of showing" why discovery should be denied. Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975).

C. Failure to Meet and Confer

Defendants argue that the motions to compel should be denied because while the meet and confer requirements of Local Rule 251 have been waived, the requirement to confer under Federal Rule of Civil Procedure 37(a) has not. ECF No. 58 at 2; ECF No. 60 at 2. While it is true that the requirement outlined in Rule 37(a) has not been explicitly excused, and the court encourages parties to attempt to resolve disputes prior to seeking court intervention, because of plaintiff's pro se status the rule will not be enforced here and will not provide grounds for denying the motion.

D. Second Motion to Compel (ECF No. 48)

As noted above, in his second motion to compel, plaintiff failed to explain the deficiency of each of defendants' responses or how the requests seek information reasonably calculated to lead to the discovery of admissible evidence. The court held the motion in abeyance pending the filing of defendants' responses to the discovery requests and no further action was taken once the responses were filed (ECF No. 57). Defendants have not filed any response to plaintiff's second motion to compel, beyond the discovery responses ordered by the court, presumably because they mistakenly believed the motion had been denied (ECF No. 58 at 2) and a response was not ordered by the court.

Since plaintiff's fourth motion to compel also sought to compel responses to Requests for Production Nos. 2 and 3 from the first set of requests (ECF No. 56) the disputes over these requests will be addressed below in Section II.F in relation to the fourth motion to compel. The remaining disputes in the second motion to compel will be addressed here.

RFP No. 4, Set 1: Copies of Plaintiff's Gray complete medical file.
Response: Defendants object to this request on the grounds that it is overly broad, burdensome, not reasonably calculated to lead to the discovery of admissible evidence, not relevant to any claims or defenses at issue in this lawsuit, and equally available to Plaintiff.

Plaintiff seeks to compel production of his complete medical file. ECF No. 48. In light of plaintiff's allegation that he was assaulted, plaintiff's medical records are relevant and reasonably calculated to lead to the discovery of admissible evidence related to plaintiff's injury. However, his request is overly broad and goes beyond the date of the assault and any medical care he would have subsequently received. Defendants also object on the grounds that plaintiff's medical records are equally available to plaintiff. Presumably, they are referring to an "Olsen review, " which is an administrative process that provides prisoners with access to nonconfidential information in their central files and medical records.

Since plaintiff has access to his medical file, the court will not require defendants to produce these documents. However, in his reply in support of his fourth motion to compel, plaintiff claims that he submitted a request to review his medical records on October 10, 2014, and that as of November 25, 2014, when he submitted his reply, he had not received a response. ECF No. 62 at 8. Defendants will therefore be required to take whatever steps are necessary to ensure that plaintiff is provided adequate access to his medical records during the pendency of this litigation. Alternatively, defendants may choose to produce to plaintiff a copy of his relevant medical records from ...


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