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Heilman v. Silva

United States District Court, S.D. California

April 13, 2015

THOMAS JOHN HEILMAN, Plaintiff,
v.
A. SILVA, et al., Defendants.

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, [1] 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:

Interrogatories:
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, 11, 12, 13
Thompson (Set Two): 1, 2, 3, 5, 6,
Tyson: 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 16, 18, 20, 23
Requests for Admission:
Arguilez: 12, 15, 18, 19, 20, 26, 27, 29, 30, 32, 34, 36
Armstead: 6, 7, 8
Buenrostro: 6, 7, 8, 11, 13, 14, 17, 18, 20,
Fontan: 1, 13
Franco: 12, 19, 23, 24, 25
Jaca: 4, 5, 6, 7, 8, 9, 10, 14, 19, 21, 26, 27, 28, 31,
Ojeda: 8, 13, 14, 16, 17, 18, 19, 20, 21, 23, 31, 32, 33, 34
Russell: 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29
Silva: 5, 6, 15, 19, 20, 21, 24, 26,
Thompson: 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, 16, 23
Tyson: 3, 9, 10, 17, 18, 24, 26, 32, 33
Requests for Document Production:
Arguilez: 4, 7, 9, 10
Buenrostro: 1, 2, 3, 4, 7
Franco: 2, 3, 4
Ojeda: 1, 2, 3, 7
Russell: 8
Silva: 1, 2, 3, 4, 7, 12
Thompson: 7

ii. Objectionable Interrogatories and Requests for Admissions

In addition, most of the interrogatory requests are so compound, vague, ambiguous, argumentative, or burdensome that requiring a further response to any of these questions would be overly burdensome. Looking again at Interrogatory No. 14 to Defendant Ojeda, Plaintiff 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). Remarkably, Defendants attempt to substantively answer most of these confusing requests. For instance, in response to Interrogatory No. 14, 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. ).

Defendants did not respond substantively to all of Plaintiff's objectionable requests. For instance, Interrogatory No. 16 demands that Defendant Ojeda explain whether his description in his report that officers used "physical force in an attempt to restrain inmate Heilman" was an accurate portrayal of

how correctional officers inflicted multiple injuries to Heilman including facial injuries with swelling, bruising, and bleeding requiring x-rays for possible facial or jaw fractures, a 40% collapse of Heilman's left lung with an associate air seepage into his lungs (pneumothorax) which required extensive surgical repair.

(Id. at 43). Defendant Ojeda objects that this request assumes facts in dispute, is vague and ambiguous, seeks an expert opinion, and is argumentative. (Id. ). The Court agrees. The request as phrased is hard to understand, argumentative, and calls for Defendant to respond as if he were a medical expert rather than seeking his lay observations. It is argumentative because it requires the Defendant to adopt Plaintiff's version of the underlying events. Plaintiff may use interrogatories to discover what the facts are as the responding party sees them-not to require the responding party to adopt the facts as Plaintiff sees them. This request is not aimed at discovering information or narrowing the issues to be tried.

The Court holds that the Defendants are also excused from further responding to the following requests. The Court finds that each of the following requests are compound, vague, ambiguous, irrelevant, duplicative, call for an expert opinion, call for speculation, are so argumentative as to be harassing, call for information readily available to Plaintiff in document that has been produced or is publicly available, or a combination of several of these deficiencies. The Court further finds that Defendants' substantive responses, when they provide a substantive response, are sufficient, and finds that Defendants are excused from substantively responding to the objectionable responses to which they did not formulate a substantive response.

Interrogatories:
Arguilez: 1, 7, 8, 10, 12, 20, 22, 25
Armstead: 6, 7, 8, 9, 14, 18
Buenrostro: 3, 5, 6, 7, 11, 12, 13, 14, 15, 16, 17, 18, 21, 22
Fontan: 2, 4, 6
Franco: 5, 7, 8, 9, 10, 14
Jaca: 3, 5, 6, 7, 11, 12, 13, 15, 20, 21, 23
Ojeda: 6, 9, 10, 11, 13, 14, 16, 19, 20, 21
Paramo (Set One): 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13
Paramo (Set Two): 1, 2, 3, 4, 5, 6, 7
Russell (Set One): 3, 5, 6, 7, 8, 9, 10, 11, 14, 15, 16, 18
Russell (Set Two): 2, 4, 5
Silva: 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22
Thompson (Set One): 1, 2, 10, 11, 12, 13
Thompson (Set Two): 3, 5, 6
Tyson: 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 16, 17, 18, 20, 23
Requests for Admission:
Arguilez: 26, 30, 31, 36
Buenrostro: 6, 7, 8, 11, 13, 18, 20
Franco: 12, 18, 23, 24, 25
Jaca: 7, 19, 21, 26, 27, 28, 31, 32
Ojeda: 8, 17, 22, 25, 28, 29, 35
Russell: 29
Silva: 5, 6, 9, 15, 20, 21, 24, 26, 28, 29, 30, 36, 38
Tyson: 3, 9, 10, 17, 18, 23, 24, 26, 32, 33, 39

Accordingly, Plaintiff's motions to compel further responses to these requests are DENIED. In so finding, the Court emphasizes that it has reviewed and considered each response at issue on an individual basis and determined that at least one of the objections raised by Defendant to each request should be sustained, such that no substantive response is required.

iii. Objectionable Requests for Documents

1. Defendants' Statements Alleging Battery or Assault on Peace Officer by an Inmate

Request No. 8 to Defendant Ojeda demands that Ojeda provide all statements he personally gave against inmates housed in the building six administrative segregation unit in a CDCR crime/incident report alleging inmate "battery or assault on a peace officer." (Id. at 63). Defendant Ojeda objects that the request is vague, ambiguous, overbroad, irrelevant and not likely to lead to the discovery of admissible evidence, and burdensome. (Id. at 64). In his "Notice of Good Faith" arguments, Plaintiff interprets the scope of his own request to include just the "documents containing interviews pertaining to the allegation filed against Heilman for Battery on a Peace Officer' by Defendant D. Tyson on May 9, 2013." (Id. at 33). Plaintiff's limited interpretation of his own request demonstrates that the original request was vague, ambiguous, overbroad, and burdensome. Moreover, the request as interpreted by Plaintiff merely seeks the same documents he requests in Request for Production No. 2 to Defendant Ojeda, and Request No. 8 is therefore duplicative. Accordingly, the Court DENIES Plaintiff's motion to compel further response to Request No. 8 from Defendant Ojeda.

2. Defendants' CDCR Personnel Records

Plaintiff also seeks to compel a further response from Defendant Russell to Request No. 1, seeking "a copy of your CDCR personnel record. All personal information should be redacted." (ECF No. 109 at 131). Defendant Russell advances several objections, including that the request is overly broad, burdensome, irrelevant, and seeks confidential peace officer information and violates the official information privilege. Defendant's objections that this request is overbroad, burdensome, and seeks irrelevant evidence are sustained. Discovery may not be used as a fishing expedition into the affairs of an adversary. See, e.g., H-P-M Dev. Corp v. Watson-Stillman Co., 71 F.Supp. 906, 914 (D. N.J. 1947). Plaintiff has not carried his burden to show how Defendant Russell's confidential personnel record is relevant to his claims. Accordingly, Plaintiff's motion to compel further response by Defendant Russell to Request No. 1 is DENIED.

3. Adverse Actions Against Defendant at CDCR

Request No. 3 to Defendant Thompson and Request No. 4 to Defendant Franco seek all adverse actions taken against them as CDCR correctional staff members. (ECF No. 109 at 102; ECF No. 111 at 86). Defendants object on a number of grounds. Defendant Thompson's most pertinent objection is that the request is duplicative of Request No. 1 (to which Plaintiff is not seeking to compel a further response). Plaintiff does not dispute that this request is duplicative of Request No. 1. Indeed, Request No. 1 asks for the disciplinary section of Defendant Thompson's CDCR general personnel file. (Id. at 101). The Court finds no material difference between the two requests. In response to Request No. 1, Defendant objected and then answered "[n]o documents were located responsive to this request." (Id. ). In light of that response, the Court declines to compel a further response to the duplicative request at No. 3. Similarly, Defendant Franco's objections to Plaintiff's request for records of disciplinary or adverse actions are followed by his affirmation that "No documents were located responsive to this request." (ECF No. 111 at 86). Plaintiff has not shown this response to be evasive. Accordingly, the motion to compel further response to Request No. 4 to Defendant Franco is DENIED.

Likewise, Plaintiff demands from Defendant Arguilez both "a copy of the disciplinary section of your CDCR general personnel file, " and "a copy of any/all actions CDCR administrative filed against you." (ECF No. 111 at 42). Defendants object that the requests are irrelevant, compound, vague and ambiguous, overbroad, burdensome, oppressive, and seek confidential peace officer information and violate the official information privilege. (Id. ). Defendant also provided a privilege log to Plaintiff in response to Request No. 2, but Plaintiff did not provide that privilege log to this Court. The Court agrees that the request is overbroad and that most if not all of the documents responsive to this request are irrelevant to this action. For instance, if Defendant was disciplined for tardiness, those records would have no bearing on this matter. Plaintiff fails to carry his burden to show the relevance of the records requested. Consequently, his motion to compel these requests is DENIED.

4. Criminal Convictions and Arrests

Plaintiff also seeks to compel further responses from Defendant Thompson to Request No. 4, from Defendant Russell to Request No. 7, from Defendant Silva to Request No. 5, from Defendant Buenrostro to Request No. 5, and from Defendant Arguilez to Request No. 5, each demanding a copy of "any/all notices of criminal convictions [the responding Defendant] ha[s] received." (ECF No. 109 at 102; ECF 111 at 44; ECF No. 113 at 74; ECF No. 113 at 104). Request No. 6 to Defendants Arguilez, Silva, and Buenrostro similarly demand a copy of "any/all records of arrests you have received." (ECF No. 111 at 4; ECF No. 113 at 74; ECF No. 113 at 104). Defendants object that the requests are vague, ambiguous, irrelevant, overbroad, seek confidential peace officer information and information protected by the official information privilege, and seek information available to the public. (Id. ). Plaintiff has not shown how, for instance, a hypothetical misdemeanor conviction for drug possession has any relevance to this action. Defendants' objections that these requests are overbroad and seek irrelevant evidence are sustained. As noted before, discovery may not be used as a fishing expedition into the affairs of an adversary. See, e.g., H-P-M Dev. Corp v. Watson-Stillman Co., 71 F.Supp. 906, 914 (D. N.J. 1947). In addition, Defendants correctly note that such information would be publicly available, such that Plaintiff can obtain the information by means less burdensome on Defendants. Accordingly, Plaintiff's motions to compel a further response to Request No. 4 (Defendant Thompson), Request No. 7 (Defendant Russell), Requests Nos. 5 and 6 (Defendant Silva), Request Nos. 5 and 6 (Defendant Buenrostro), and Request Nos. 5 and 6 (Defendant Arguilez) are DENIED.

5. Inmate 602s/Complaints Against Defendants for Misconduct or Excessive Force Against Inmates

Plaintiff also demands "all inmate 602 Appeal/staff complaints" filed against Defendants "for misconduct, excessive use of force, or ordering or approving subordinate officer's misconduct against prison inmates." (ECF No. 109 at 103 (Thompson, Request No. 7); ECF No. 113 at 73 (Request No. 3)). Defendant Thompson and Defendant Silva respond by producing redacted appeals, subject to objections that the requests invade privacy, lack relevance, and are compound, vague, ambiguous, overbroad, burden and oppression. Plaintiff did not explain in his papers why the redacted appeals that Defendants produced in response are insufficient. Accordingly, the Court DENIES Plaintiff's motion to compel further response or further production.

6. Civil Lawsuits Against Defendants By Inmates

Plaintiff also demands records from all civil lawsuits filed against Defendants Arguilez, Silva, and Buenrostro by current or former prison inmates, including records showing the ultimate results of the cases (excluding Heilman's cases). (ECF No. 111 at 45 (Request No. 11); ECF No. 113 at 75 (Request No. 11); ECF No. 113 at 105 (Request No. 11)). Defendants object that the requests are vague and ambiguous, irrelevant, overbroad, and seek information available to the public. (Id. ). Indeed, civil lawsuits are a matter of public record, such that Plaintiff can obtain the information by less burdensome means.

Defendants' objections that these requests are overbroad and seek irrelevant evidence are also sustained. Discovery may not be used as a fishing expedition into the affairs of an adversary. See, e.g., H-P-M Dev. Corp v. Watson-Stillman Co., 71 F.Supp. 906, 914 (D. N.J. 1947). Plaintiff has made no attempt to show how such broadly-described records are relevant to this action. In addition to Plaintiff's failure to meet and confer in good faith, Plaintiff's motion to compel these responses is DENIED on this basis.

7. Records Pertaining to Inmate Allegations of Excessive Force In Ad-Seg Unit

Request No. 12 to Defendant Arguilez calls for any records pertaining to inmate allegations that his subordinates used excessive force in the Administrative Segregation Unit. Defendant objected that the request is vague and ambiguous, overbroad, not specific as to time, irrelevant, and duplicative. (ECF No. 111 at 45-46). Indeed, the request overlaps significantly with other requests for inmate complaints, 602 appeals, and civil lawsuits against these Defendants, and thus is duplicative of those requests. The request is also overbroad because it is not restricted to allegations against these Defendants. Nor is it restricted to the times that these Defendants have been stationed in the Administrative Segregation Unit. Moreover, the request seeks irrelevant information, because it is not limited to allegations that have been substantiated. False allegations of excessive force have no relevance this action. Properly tailored, this request would seek only substantiated allegations of excessive force used by Defendants that Defendant Arguilez supervises. Plaintiff sought that precise category of documents in other requests, rendering this request duplicative.

Accordingly, this request is DENIED.

8. Request (Set Two) No. 1 to Defendant Paramo

In this request, Plaintiff seeks

Copies of any/all letters or correspondence from prison inmates to either yourself as warden of RJ Donovan Correct. Facility, or to the warden's office during your tenure as warden of RJ Donovan containing complaints of either excessive force or misconduct by RJ Donovan Ad-seg unit correctional staff, or letters complaining that the specific inmate in question has not been permitted to file allegations on a prison grievance (602/inmate staff complaint-appeal) or excessive force or misconduct against RJ Donovan A.S.U. Correction staff when the 602 forms are either "screened-out" or go "missing" once submitted by the inmate.

(ECF No. 131 at 35). Defendant objects that this request is compound, vague and ambiguous, overbroad, not specific to time, irrelevant, burdensome, oppressive, and seeks information that would violate the privacy of inmates who are not parties to this case. The Court sustains Defendant's objections that this request is compound, so overbroad, irrelevant, and that the request calls for private information of third parties that may be confidential or privileged. Once again, the Court declines to permit Plaintiff to use discovery as a fishing expedition into the affairs of an adversary. See, e.g., H-P-M Dev. Corp v. Watson-Stillman Co., 71 F.Supp. 906, 914 (D. N.J. 1947). Accordingly, the Court DENIES Plaintiff's motion to compel this response.

9. Request (Set Two) No. 2 to Defendant Paramo

In this request, Plaintiff demands grievances filed by inmates against Correctional Officers R. Davis, Bustos, Heddy, Miller, and Lopez for excessive force, misconduct, brutality, abuse, or harassment during Defendant Paramo's tenure as warden. (ECF No. 131 at 35). Defendant objects that the request is irrelevant, compound, vague and ambiguous, overbroad, burdensome, oppressive, and seeks confidential and privileged information of third party peace officers. Indeed, none of the correctional officers listed in this demand are defendants in this action. Plaintiff offers no explanation for how inmate complaints against nonparties have any bearing on his allegations against these Defendants. The Court sustains Defendant's objections to relevance and third party privacy. Consequently, Plaintiff's motion is DENIED as to this request.

c. Inadequate Response

Amidst the hundreds of responses Plaintiff moves to compel, there is one interrogatory to which Defendant Buenrostro failed to properly respond. Interrogatory No. 8 to Defendant Buenrostro asks "Please explain if any Inmate 602 staff complaints/Appeals were filed against you for excessive use of force while you were assigned to Admin. Segregation and provide the Log numbers of those grievances." (ECF No. 113 at 81). Defendant's response is a word-for-word copy of the request. The Court finds that Defendant's "response" is a cut-and-paste error rather than a willful failure to respond. Had Plaintiff properly meet and conferred with Defendants in good faith, or had Plaintiff narrowed down the requests at issue, Defendant most likely would have provided a substantive response-willingly and informally-upon learning of the clerical error. Plaintiff is the victim of his own discovery misconduct.

Nevertheless, because Plaintiff is a prisoner proceeding pro se, and the Defendant's failure to respond to this request is clearly a clerical error, the Court GRANTS Plaintiff's motion to compel a further response by Defendant Buenrostro to Interrogatory No. 8 (which is in the motion filed at ECF No. 113). In granting this request, however, the Court finds good cause for excusing Defendant Buenrostro's failure to timely object to this request, and finds that Defendant Buenrostro has not waived objections to this request. See Fed.R.Civ.P. 33(b)(4)(permitting court to excuse, for good cause, a failure to timely object). In addition, the Court finds that it would be unjust to impose sanctions against Defendant Buenrostro or his attorney with respect to this request. Accordingly, Defendant Buenrostro is ORDERED to respond further respond to Interrogatory 8 within 14 days of entry of this Order.

II. ECF 125: Motion to compel Defendants Silva, Buenrostro, Tyson, Fontan, Armstead, Ojeda, and Arguilez to Disclose Confidential Supplements (Attachment "C") to the 602/Inmate-Staff Complaints

Plaintiff filed this motion to compel Defendants Silva, Buenrostro, Tyson, Fontan, Armstead, Ojeda, and Arguilez to produce the confidential Attachment C to the numerous 602/Inmate-Staff Complaints on January 9, 2015. (ECF No. 125). Plaintiff's motion is untimely as to these requests. All of the Defendants' responses to document demands that this motion is based upon were signed by Defendants between October 29 and November 5. (ECF Nos. 109, 111, 113, 125). Plaintiff fails to show that the motion is timely. Plaintiff does not provide the proofs of service for these responses or identify the date he actually received them. Even if Plaintiff received these responses two weeks after the Defendants signed them, Plaintiff's time to file this motion on the latest-received responses expired on January 5, 2015-several days before he constructively filed this motion.

In addition, as to Defendant Armstead, Plaintiff failed to provide the document demands and responses served on Defendant Armstead. Absent a showing that the Plaintiff actually demanded the document he now seeks to compel, the Court cannot compel production.

Accordingly, Plaintiff's motion to compel the production of the confidential Attachment Cs to the 602/Inmate-Staff Complaints is DENIED.

III. ECF 143: Motion to compel Defendant Paramo to provide a further response to Request For Admission No. 11

Plaintiff separately moves for a supplemental response from Defendant Paramo to Request for Admission No. 11, and for sanctions. (ECF No. 143). Request for Admission No. 11 asks:

Do you admit or deny that CDCR policy and procedures mandates that an inmate claiming serious injuries should be immediately transported for medical care and treatment either by an ambulance or other transportation.

(Id. at 2-3). Defendant Paramo responds:

Objection-irrelevant and not likely to lead to the discovery of admissible evidence as Plaintiff's complaint specifically states his medical care is not at issue in this case.

(Id. at 3). Plaintiff contends that this response is incomplete and incorrect, because he has raised an Eighth Amendment deliberate indifference claim for lack of medical care in his Complaint in the Seventh Cause of Action. (Id. ). The Complaint states in relevant part "[t]hat these acts, omissions, or conduct makes these supervisorial defendants personally responsible for violations of Heilman's Eighth Amendment right when deliberately indifferent to Heilman's health, safety and welfare in the use of excessive force against Heilman while working under color of state law." (ECF No. 1 at 85:12-18; see also id. at 87:7-12). Indeed, the Complaint specifically alleges that "CDCR rules, regulations and just plain common sense would dictate that Heilman be transported by ambulance to the prison hospital for medical evaluation and treatment...." (Id. at 87:26-88:3). The Defendants correctly point out that the Complaint also states that Plaintiff is reserving the Eighth Amendment deliberate indifference to medical needs claim for another complaint in another case. Although it is unclear whether Plaintiff is actually bringing the deliberate medical indifference claim in this action, [2] the excerpted allegations in his Complaint are sufficient to render Request for Admission 11 to Defendant Paramo relevant to this action. Accordingly, Plaintiff's motion to compel a further response is GRANTED, and Defendant Paramo is ORDERED to provide a supplemental response to Request for Admission No. 11 within 14 days of entry of this Order.

Plaintiff's request for sanctions against Defendant Paramo and his attorney relating to this response is DENIED. The Court finds that Defendant's failure to respond was justified because the Complaint states that Plaintiff intends to bring his medical indifference claim in another suit, such that it was not frivolous or clearly unreasonable for Defendant to believe that this request fell outside the scope of this action.

IV. ECF 164: Motion to compel Defendant Paramo to Disclose Items Pursuant to Subpoena

In this motion, Plaintiff seeks to compel documents responsive to select demands (referred to by Plaintiff as "Subpoenaed Items") in a subpoena he states that he served on Defendant Paramo pursuant to Fed.R.Civ.P. 45. In support of his motion, Plaintiff provides his own handwritten version of the demands, objections, and his counterargument in favor of production. (ECF No. 164). Plaintiff does not provide the subpoena, proof of service of the subpoena on the Defendant, or the Defendant's actual signed responses.

The service of the subpoena demanding the document is a necessary prerequisite to a court compelling a nonparty's obedience with a subpoena. Fed.R.Civ.P. 37 and 45; see e.g., James v. Wash Depot Holdings, Inc., 240 F.R.D. 693, 694-695 (S.D. FL. 2006); see also Roberts v. Americable Int'l Inc., 883 F.Supp. 499, 501 n. 2 (E.D. Cal. 1995) ("[A party's] informal request for production of documents made at deposition is not recognized as an appropriate discovery request under the Federal Rules, i.e. such discovery vehicle does not exist under the Federal Rules of Civil Procedure. [The] motion to compel is inappropriate and is denied for this reason."). In the absence of a subpoena, the other party has no duty to produce documents. Fed.R.Civ.P. 45(a)(1)(D) (creating duty to respond). In the absence of any of these items proving that the subpoena was served, that the Defendant did in fact respond with objections, and that Plaintiff faithfully and completely restated the Defendant's objections, the Court finds that Plaintiff has not met his burden. Consequently, Plaintiff's motion to compel further responses to these requests is DENIED.

V. CONCLUSION

The Court DENIES the motions entered on the docket as ECF Nos. 109, 111, 125, 131, 133, 139, 164.

The Court GRANTS IN PART and DENIES IN PART the motion entered on the docket as ECF No. 113. Defendant Buenrostro is ORDERED to provide a further response to Interrogatory No. 8 within 14 days of entry of this Order. The motion is DENIED as to all other requests at issue, and as to the sanctions request.

The Court GRANTS IN PART and DENIES IN PART the motion entered on the docket as ECF No. 143. Defendant Paramo is ORDERED to provide a further response to Request for Admission 11, but the request for sanctions is DENIED.

IT IS SO ORDERED.


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