United States District Court, E.D. California
ORDER GRANTING DEFENDANTS' MOTION TO COMPEL AND
MODIFICATION OF SCHEDULING ORDER [ECF NO. 38]
Larry Donnell King, Sr. is appearing pro se and in forma
pauperis in this civil rights action pursuant to 42 U.S.C.
before the Court is Defendants' motion to compel, filed
May 10, 2017.
action is proceeding on Plaintiff's failure to protect
claims against Defendants Tarnoff, Tallerico, Acebedo, Castro
and Lawless (relating to an attack on August 10, 2011), and
against Defendant Biter (relating to an attack in January
March 7, 2017, Defendants filed an answer to Plaintiff's
complaint. On March 8, 2017, the Court issued the discovery
and scheduling order.
previously stated, on May 10, 2017, Defendants filed a motion
to compel responses to discovery and request to modify the
scheduling order. Plaintiff filed an opposition on May 22,
2017, and Defendants filed a reply on May 26, 2017.
is proceeding pro se and he is a state prisoner challenging
his conditions of confinement. As a result, the parties were
relieved of some of the requirements which would otherwise
apply, including initial disclosure and the need to meet and
confer in good faith prior to involving the Court in a
discovery dispute. Fed.R.Civ.P. 26(a)(1); Fed.R.Civ.P. 26(c);
Fed.R.Civ.P. 37(a)(1); Local Rules 240, 251; ECF No. 37,
Discovery and Scheduling Order, &4. Further, where
otherwise discoverable information would pose a threat to the
safety and security of the prison or infringe upon a
protected privacy interest, a need may arise for the Court to
balance interests in determining whether disclosure should
occur. See Fed.R.Civ.P. 26(c); Seattle Times Co.
v. Rhinehart, 467 U.S. 20, 35 n.21 (1984) (privacy
rights or interests implicit in broad purpose and language of
Rule 26(c)); Burlington N. & Santa Fe Ry. Co. v.
United States Dist. Court for the Dist. of Montana, 408
F.3d 1142, 1149 (9th Cir. 2005) (discussing assertion of
privilege); Soto v. City of Concord, 162 F.R.D. 603,
616 (N.D. Cal. 1995) (recognizing a constitutionally-based
right of privacy that can be raised in discovery); see
also Garcia v. Clark, No. 1:10-CV-00447-LJO-DLB PC, 2012
WL 1232315, at *6 n.5 (E.D. Cal. Apr. 12, 2012) (noting
inmate's entitlement to inspect discoverable information
may be accommodated in ways which mitigate institutional
safety concerns); Robinson v. Adams, No.
1:08-cv-01380-AWI-BAM PC, 2012 WL 912746, at *2-3 (E.D. Cal.
Mar. 16, 2012) (issuing protective order regarding documents
containing information which implicated the safety and
security of the prison); Orr v. Hernandez, No.
CV-08-0472-JLQ, 2012 WL 761355, at *1-2 (E.D. Cal. Mar. 7,
2012) (addressing requests for protective order and for
redaction of information asserted to risk jeopardizing safety
and security of inmates or the institution if released);
Womack v. Virga, No. CIV S-11-1030 MCE EFB P, 2011
WL 6703958, at *5-6 (E.D. Cal. Dec. 21, 2011) (requiring
defendants to submit withheld documents for in camera review
or move for a protective order).
this is a civil action to which the Federal Rules of Civil
Procedure apply. The discovery process is subject to the
overriding limitation of good faith, and callous disregard of
discovery responsibilities cannot be condoned. Asea, Inc.
v. Southern Pac. Transp. Co., 669 F.2d 1242, 1246 (9th
Cir. 1981) (quotation marks and citation omitted).
“Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's
claim or defense and proportional to the needs of the case,
considering the importance of the issues at stake in the
action, the amount in controversy, the parties' relative
access to relevant information, the parties' resources,
the importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery
outweighs its likely benefit.” Fed R. Civ. P. 26(b)(1).
if the responding party objects to a discovery request, the
party moving to compel bears the burden of demonstrating why
the objections are not justified. Grabek v.
Dickinson, No. CIV S-10-2892 GGH P, 2012 WL 113799, at
*1 (E.D. Cal. Jan. 13, 2012); Womack, 2011 WL
6703958, at *3; Mitchell v. Felker, No. CV
08-119RAJ, 2010 WL 3835765, at *2 (E.D. Cal. Sep. 29, 2010);
Ellis v. Cambra, No. 1:02-cv-05646-AWI-SMS PC, 2008
WL 860523, at *4 (E.D. Cal. Mar. 27, 2008). This requires the
moving party to inform the Court which discovery requests are
the subject of the motion to compel, and, for each disputed
response, why the information sought is relevant and why the
responding party's objections are not meritorious.
Grabek, 2012 WL 113799, at *1; Womack, 2011
WL 6703958, at *3; Mitchell, 2010 WL 3835765, at *2;
Ellis, 2008 WL 860523, at *4. However, the Court is
vested with broad discretion to manage discovery and
notwithstanding these procedures, Plaintiff is entitled to
leniency as a pro se litigation; therefore, to the extent
possible, the Court endeavors to resolve his motion to compel
on its merits. Hunt v. County of Orange, 672 F.3d
606, 616 (9th Cir. 2012); Surfvivor Media, Inc. v.
Survivor Productions, 406 F.3d 625, 635 (9th Cir. 2005);
Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir.
move this Court for an order compelling Plaintiff to provide
full and complete responses to each of Defendants'
interrogatories number 1, and requests for production numbers
1, 2, 3, 4, 5, and 7. Defendants also request the Court
extend the deadline to file an exhaustion related motion for
summary judgment until sixty days after Plaintiff provides
opposition, Plaintiff argues that all documentation is in
Defendants' possession, control or equally available to
reply, Defendants argue that nothing in Plaintiff's
opposition justifies his refusal to respond to
Defendants' written discovery; nor any reason why he
believes Defendants have not acted diligently with respect to
the defense of exhaustion of administrative remedies.
previously stated, the Court issued the discovery and
scheduling order on March 8, 2017, and set June 8, 2017, as
the deadline for motions for summary judgment for failure to
exhaust the administrative remedies. (ECF No. 37.) Defendants
submit that on March 10, 2017, they each propounded a first
set of interrogatories, consisting of three to four
questions, dealing primarily with Plaintiff's exhaustion
of administrative remedies. (Mark Decl. ¶ 2, Ex. A; ECF
No. 38-2.) Defendants also propounded their first request for
production of documents, consisting of six requests.
(Id., Ex. B.) Defendants received Plaintiff's
responses to the discovery on March 29, 2017. (Mark Decl.
¶ 2, Exs. A & C.) On April 6, 2017, Defendants
propounded a second request for production and a second set
of interrogatories. (Mark Decl. ¶ 5, Exs. F-G.)
April 5, 2017, Defendants' counsel sent Plaintiff a
letter addressing deficiencies in Plaintiff's initial
responses and requested supplemental responses. (Mark Decl.
¶ 3, Ex. D.) Plaintiff's supplemental responses were
unverified and Defendants argue did not cure many of the
deficiencies in his initial responses. (Mark Decl. ¶ 4,
Ex. E.) Defendants further argue that Plaintiff's
responses to their second request for production and second
set of interrogatories repeated the same type of deficient
responses about which Defendants had already advised
Plaintiff. (Mark Decl., Exs. D & E.)
interrogatory must, to the extent it is not objected to, be
answered separately and fully in writing under oath.”
Fed.R.Civ.P. 33(b)(3). “The grounds for objecting to an
interrogatory must be stated with specificity. Any ground not
stated in a timely objection is waived unless the court, for
good cause, excuses the failure.” Fed.R.Civ.P.
33(b)(4). Finally, responses to interrogatories must be
verified. Fed.R.Civ.P. 33(b)(5) (“The person who makes
the answers must sign them, and the attorney, who objects
must sign any objections.”)
Verification of Responses
did not verify his supplemental responses to Defendants'
first set of interrogatories, nor his responses to Defendants
Biter's second set of interrogatories. Defendants'
request for Plaintiff to provide verified supplemental
responses to all of their interrogatories must be granted.
Fed.R.Civ.P. 33(b)(5). Accordingly, the Court will direct
Plaintiff to provide verified supplemental responses.
Plaintiff's responses to Defendants' interrogatories
must be dated and signed by Plaintiff, attesting under
penalty of perjury to facts known by Plaintiff, in