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King v. Biter

United States District Court, E.D. California

June 1, 2017

M.D. BITER, et al., Defendants.


         Plaintiff Larry Donnell King, Sr. is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

         Currently before the Court is Defendants' motion to compel, filed May 10, 2017.


         This 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 2014).

         On March 7, 2017, Defendants filed an answer to Plaintiff's complaint. On March 8, 2017, the Court issued the discovery and scheduling order.

         As 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.


         Plaintiff 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).

         However, 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).

         Generally, 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. 2002).

         Defendants 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 complete responses.

         In opposition, Plaintiff argues that all documentation is in Defendants' possession, control or equally available to them.

         In 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.

         As 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.)

         On 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.)

         A. Interrogatory Responses

         “Each 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.”)

         a. Verification of Responses

         Plaintiff 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 ...

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