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Hardney v. Phillips

United States District Court, E.D. California

May 4, 2015

JOHN HARDNEY, Plaintiff,
v.
G. PHILLIPS, et al., Defendants.

ORDER

CAROLYN K. DELANEY, Magistrate Judge.

This pro se prisoner action pursuant to 42 U.S.C. ยง 1983 proceeds against defendants Philips, Yang, and Fernandez. Plaintiff claims that defendants used excessive force by spraying him with pepper spray during his cellmate's cell extraction in December 2012, violating the Eighth Amendment ban on cruel and unusual punishment. (ECF No. 1; see ECF No. 9.)

Before the court is plaintiff's February 10, 2015 motion to compel discovery. Specifically, plaintiff seeks to compel production of documents in response to his Requests for Production of Documents ("RFPs") Nos. 10, 12, 13, 14, and 16. (ECF No. 47.) Defendants have filed an opposition. (ECF No. 49.)

I. Legal Standard

Under Rule 26 of the Federal Rules of Civil Procedure, "[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense. Fed.R.Civ.P. 26(b). "Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id.

With respect to requests for production, a party may propound requests for production of documents that are within the scope of Federal Rule of Civil Procedure 26(b). Fed.R.Civ.P. 34(a). With respect to interrogatories, a party may propound interrogatories related to any matter that may be inquired into under Federal Rule of Civil Procedure 26(b). Fed.R.Civ.P. 33(a)(2).

Under Rule 37 of the Federal Rules of Civil Procedure, "a party seeking discovery may move for an order compelling an answer, designation, production, or inspection." Fed.R.Civ.P. 37(a)(3) (B). The court may order a party to provide further responses to an "evasive or incomplete disclosure, answer, or response." Fed.R.Civ.P. 37(a)(4). "District courts have broad discretion to manage discovery and to control the course of litigation under Federal Rule of Civil Procedure 16.'" Hunt v. County of Orange, 672 F.3d 606, 616 (9th Cir. 2012).

II. Analysis

First, having reviewed the docket, the court rejects plaintiff's argument that defendants' responses were untimely to any significant degree. (See ECF No. 49 at 4 (due to calendaring error, Fernandez's and Phillips' responses to RFPs were served Monday instead of the previous Friday); ECF No. 51 (granting 3-day extension of time nunc pro tunc).)

RFP No. 10

In RFP No. 10, plaintiff sought "[a]ny and all documents received, read, or reviewed by Defendant[s] describing the effects caused by MK-9 O.C. pepper spray." (ECF No. 47 at 14.)[1]

Defendants objected to this request on various grounds, including that it sought confidential documents "the disclosure of which may create safety and security concerns, i.e., correctional officer training documents." (Id.) Defendants also stated that they did not possess any responsive documents. (Id.)

Plaintiff argues that this information is "highly relevant" to show defendants' knowledge of the effects of pepper spray before their alleged use of excessive force. (ECF No. 47 at 5.) In opposition, defendants maintain that they do not possess responsive documents. However, they supplement their response with the following statement: "[D]uring the course of Defendants' training and employment at CDCR, Defendants learned that exposure to MK-9 O.C. pepper spray generally causes burning sensation to the affected area and coughing." (ECF No. 49 at 5.)

This court cannot order a defendant to produce documents that do not exist or are not in the defendant's possession or control. See Fed.R.Civ.P. 34(a); United States v. Int'l Union of Petroleum & Indus. Workers, 870 F.2d 1450, 1452 (9th Cir. 1989) ("The party seeking the production of documents... bears the burden of proving that the opposing party has such control."). Based on the record before the court, however, it appears that documents responsive ...


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