United States District Court, S.D. California
ORDER RE PLAINTIFF'S PENDING DISCOVERY MOTIONS [ECF Nos. 109, 111, 113, 125, 131, 133, 139, 143, 164]
MITCHELL D. DEMBIN, Magistrate Judge.
Plaintiff is a state prisoner proceeding pro se and in forma pauperis, with a civil complaint filed pursuant to 42 U.S.C. § 1983. Before this Court are Plaintiff's 10 discovery motions, which seek to compel 343 further discovery responses from 12 different Defendants. Defendants objected to the demands but have not opposed the motions. Having reviewed Plaintiff's motions, briefs, and exhibits, the Court deems the matters suitable for determination on the papers and rules as follows.
I. ECF Nos. 109, 111, 113, 125 (first motion in filing), 131, 133, 139: Motions to Compel Defendants to Provide Further Discovery Responses
Most of Plaintiff's motions seek to compel Defendants to provide further responses to written discovery. Plaintiff attached each set of requests and responses for the Court's review. The Court has reviewed each of the requests and responses at issue, as well as Plaintiff's arguments for compelling further responses as set forth in the "Notice(s) of Good Faith" he filed. Because the issues raised by these motions overlap significantly, the Court analyzes the sufficiency of these discovery responses in groups according to the overlapping issues raised.
a. Inadequate Meet and Confer Process
The Court finds that Plaintiff did not meet and confer in good faith with these Defendants about the allegedly inadequate discovery responses. Serving a threat-laden "Notice of Good Faith Dispute" is quite different from actually conferring in good faith as required. Fed. R. C. P. 37(a)(1) (a motion to compel "must include a certification that the movant has in good faith conferred or attempted to confer"); see also, S.D. Cal. Civ. L. R. 26.1(a); Chambers Civ. R. § V.A. Rules requiring that the moving party meet and confer in good faith apply to pro se litigants, though incarcerated plaintiffs are not required to meet and confer in-person. Incarcerated plaintiffs can and do engage in telephonic meet and confer discussions, or may exchange letters drafted in good faith to attempt to resolve the dispute informally. See, e.g., Madsen v. Risenhoover, No. C 09-5457 SBA (PR), 2012 WL 2873836, at *3, 2012 U.S. Dist. LEXIS 90810, at *8-9 (N.D. Cal. June 28, 2012) (finding that the meet and confer requirement applies to incarcerated individuals, but noting that the incarcerated plaintiff may send a letter to defendants); Walker v. Ryan, No. CV-10-1408-PHX-JWS (LOA), 2012 WL 1599984, at *2-3, 2012 U.S. Dist. LEXIS 63606, at *5-6 (D. Ariz. May 7, 2012) (denying motion to compel where unrepresented party did not include a certification of attempts to meet and confer).
Although Plaintiff's letters to Defendants' attorney do set forth some substantive explanations for challenging the sufficiency of the responses, the letters are peppered with personal insults,  threats of sanctions, and at least one more serious threat: that even if Defendant Thompson "can evade the truth" in pretrial discovery, "there are more powerful investigative agencies at work on the RJ Donovan Ad-Seg Unit's cabal of sadistic Nazi-type criminals and obstruction of these agencies by Thompson and his subordinates will be their downfall." (ECF No. 109 at 76:25-28). Plaintiff may hold a good faith belief in the inadequacy of the responses, but his abusive, extortionate letters to Defendants were sent in anything but good faith. Including insults and threats in such letters forecloses the possibility of an informal resolution rather than promoting resolution. The Court finds that Plaintiff failed to meet and confer in good faith.
Failure to meet and confer in good faith is grounds for denial of the motion to compel. Robinson v. Potter, 453 F.3d 990, 995 (8th Cir. 2006); Rogers v. Giurbino, 288 F.R.D. 469, 477 (S.D. Cal. 2012) (noting that failure to meet and confer is grounds for denial, but waiving requirement in that instance); Scheinuck v. Sepulveda, No. C 09-0727 WHA (PR), 2010 WL 5174340, at *1-2, 2010 U.S. Dist. LEXIS 136529, at *3-4 (N.D. Cal. Dec. 15, 2010); see Shaw v. Cnty. of San Diego, No. 06-CV-2680-IEG (POR), 2008 U.S. Dist. LEXIS 80508, at *3-4 (S.D. Cal. Oct. 9, 2008) (denying plaintiff's motion to compel for failing to attempt to meet and confer.). Accordingly, Plaintiff's motion to compel these responses is DENIED.
b. Responses Are Sufficient
Even if Plaintiff had meet and conferred in good faith, Plaintiff's motions as to all but one of the requests is DENIED because the responses are sufficient.
i. Plaintiff Has Not Shown Responses Are Evasive or Incomplete
Plaintiff principally finds fault with each interrogatory, request for admission, and document demand response because he believes the Defendants are being evasive or withholding information. While Rule 37(a)(4) states that an "evasive" disclosure "must be treated as a failure to disclose, answer, or respond, " it is nevertheless the moving party's burden to establish that an answer is evasive or incomplete. Plaintiff has not presented any basis, besides sheer speculation and his own distrust, for finding the Defendants' responses evasive. Plaintiff's mere disagreement with Defendants' answers does not render them evasive or incomplete.
For instance, Interrogatory No. 14 to Defendant Ojeda asks:
Please explain why inmate Heilman was not immediately transported to the prison hospital when defendant correctional officers "allegedly discovered" Heilman in room # 229 bldg six ad seg unit with a sheet "wrapped around his neck, " and explain why Heilman was kept in holding cage immediately after an attempted hanging with "obvious" physical injuries and requesting medical care for approximately four (4) hours from 7:20 am-11:20 am, and whether you an ad seg supervisor refused to allow Heilman to be transported to the clinic for immediate medical care.
(ECF No. 109 at 42). Defendant Ojeda responds:
Objection-argumentative, assumes facts in dispute, compound, and vague and ambiguous. Without waiving objections, Defendant responds as follows: The Officers never reported that Heilman was hanging. I do not control any aspect of an inmates medical care which includes medical transportation.
(Id. ). Plaintiff seeks a further response to this interrogatory from Defendant Ojeda on the basis that Plaintiff "deems the response to No. 14 to be evasive, misleading, inaccurate, and a self-serving fabrication to conceal Defendant's unlawful and illegal acts." (Id. at 17-18).
In another example, Interrogatory No. 1 to Defendant Ojeda asks:
Please explain and describe your duties at your assigned post on May 8-9, 2013 in the bld six ad-seg unit at RJ Donovan prison.
(Id. at 37). Defendant Ojeda responds:
My duties at my assigned post #220370 on May 8, 2013 and May 9, 2013 were to supervise the operation of the Administrative Segregation Units, building units six and seven during the hours of 0600 hours to 1400 hours.
(Id. ). Nevertheless, Plaintiff argues that Defendant's substantive response to Interrogatory No. 1 is "evasive and misleading." (Id. at 13). Plaintiff also objects to interrogatory responses that produce responsive business records in lieu of providing written responses on the basis that the responses are evasive and incomplete. ( See, e.g., Russell response to Interrogatory No. 1 attaching job description document in lieu of written response describing job duties).
The Defendants' responses do not appear incomplete, misleading, fabricated, or evasive, notwithstanding Plaintiff's characterization. Interrogatories are not designed to elicit the type of detailed narrative Plaintiff seeks in these requests. Plaintiff's proper recourse to obtain additional details would have been to depose the responding party. In addition, the Defendants were well within their rights to produce responsive business records in lieu of a written interrogatory response. Fed.R.Civ.P. 33(d). And, as Plaintiff well knows, a response is not properly characterized as evasive or incomplete where the defendant lacks knowledge necessary to answer. See Heilman v. Chernis, 2012 WL 5187732, at *6, 2012 U.S. Dist. LEXIS 150342, at *16 (E.D. Cal. Oct. 18, 2012); Gorrell v. Sneath, 292 F.R.D. 629, 636 (E.D. Cal. 2013) (relying on Heilman ).
In many instances, Plaintiff draws the conclusion that the responses are evasive because he feels the Defendants' responses contradict other responses. ( See e.g., Id. at 18 (Plaintiff argues Defendant Ojeda's response to interrogatory No. 14 contradicts with Ojeda's response to an earlier interrogatory)). Apparent inconsistencies like the one Plaintiff focuses on in Defendant Ojeda's response to interrogatory No. 14 are not a proper basis for compelling a further response. Instead, Plaintiff's recourse is investigate inconsistencies through depositions and to present the supposedly conflicting statements as evidence at trial and argue that the inconsistencies prove his case or entitle him to an adverse inference instruction. If Defendants seek to present evidence at trial that they withheld during discovery, Plaintiff may seek to exclude that evidence. Fed.R.Civ.P. 37.
Plaintiff has presented nothing, besides his own difference of opinion, to indicate that these responses are evasive, incomplete or otherwise inadequate under the Rules of Civil Procedure. See Franklin v. Smalls, No. 09CV1067 MMA RBB, 2012 WL 5077630, at *16 (S.D. Cal. Oct. 18, 2012) (Plaintiff did not meet burden to show how "unsatisfactory answer" was deficient); Washington v. Thurgood Marshall Acad., 232 F.R.D. 6, 9 (D.D.C. 2005) ("Because plaintiff has completely failed to explain how defendant's answers were evasive, incomplete, or non-responsive, it is impossible for the court to determine what information plaintiff wants compelled."); see also Daiflon, Inc. v. Allied Chem. Corp., 534 F.2d 221, 227 (10th Cir. 1976) (noting that the movant has the burden of proving that the answer in question was incomplete).
The gist of Plaintiff's motion is that Plaintiff believes the facts to be different than the Defendants believe them to be, and that the Defendants are not credible. As Plaintiff well knows, "[t]he Court cannot conclude that defendant is being dishonest simply because plaintiff presents different facts than defendant." Heilman v. Vojkufka, No. CIV S-08-2788, 2011 WL 677877, at *5 (E.D. Cal. Feb. 17, 2011) report and recommendation adopted, No. CIV S-08-2788 KJM, 2011 WL 3881023 (E.D. Cal. Sept. 2, 2011).
Finally, Plaintiff seeks to compel a further response or production to a large number of requests for document production, even though Defendants already produced documents or responded by stating that no responsive documents exist. In the instances in which Defendants produced documents, Plaintiff made no attempt to explain why he believes the document productions were incomplete. In the instances where Defendants respond that no documents exist, Plaintiff provides no basis (besides his own disbelief) for concluding that the Defendants' responses were evasive.
Accordingly, the Court DENIES Plaintiff's motions to compel the following responses because Plaintiff has not carried his burden to show that the responses or document productions are evasive or incomplete:
Arguilez: 1, 7, 8, 12, 16, 20, 22, 25
Armstead: 6, 7, 8, 9, 14, 18
Fontan: 2, 4, 6
Franco: 5, 7, 8, 9, 10, 14
Buenrostro: 1, 3, 5, 6, 7, 12, 13, 14, 15, 16, 17, 18, 21, 22
Jaca: 1, 2, 3, 5, 6, 7, 10, 11, 12, 13, 20, 21, 23
Paramo (Set One): 1, 2, 3, 5, 7, 8, 9, 10, 11, 12, 13
Paramo (Set Two): 1, 2, 3, 4, 5, 6, 7
Ojeda: 1, 4, 5, 6, 9, 10, 11, 13, 14, 17, 18, 20, 21
Russell (Set One): 1, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18
Russell (Set Two): 4, 5
Silva: 3, 4, 5, 7, 8, 9, 11, 12, 14, 15, 17, 18, 19, 20, 22
Thompson (Set One): 1, 2, 10, ...