United States District Court, E.D. California
ORDER GRANTING DEFENDANT'S MOTION TO COMPEL AND
MOTION TO MODIFY THE SCHEDULING ORDER (ECF 33, 37) THIRTY DAY
Thurman Gaines, a state prisoner, 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 Defendant
Horowitz's motion to compel and motion to modify the
filed a complaint in this action on April 16, 2015. (ECF No.
1.) Plaintiff's complaint and first amended complaint
were dismissed for failure to state a claim on September 11,
2015, and February 11, 2015, respectively. (ECF Nos. 10, 16.)
On April 14, 2016, Plaintiff's second amended complaint
was screened, and this action is proceeding against Defendant
Horowitz for deliberate indifference. (ECF No. 20.) Defendant
Horowitz filed an answer to the complaint on August 18, 2016.
(ECF No. 27.)
August 18, 2016, the scheduling order issued setting the
pretrial deadlines in this action. (ECF No. 28.) On September
9, 2016, a modified scheduling order was filed. (ECF No. 30.)
On November 1, 2016, Defendant filed a motion to compel and a
motion for a thirty day extension of time to file a motion
for summary judgment for failure to exhaust. (ECF Nos. 32,
33.) Defendant's motion for an extension of time to file
a motion for summary judgment was granted on November 3,
2016. (ECF No. 34.) Defendant's motion for failure to
exhaust is due thirty days after Plaintiff files his
supplemental responses to Defendant's discovery requests.
On December 13, 2016, Defendant filed a declaration stating
that Plaintiff had not served an opposition to the motion to
compel. (ECF No. 35.) On December 14, 2016, the undersigned
was assigned as the magistrate judge in this matter. (ECF No.
36.) On February 17, 2017, Defendant filed a motion to modify
the scheduling order. (ECF No. 37.)
of the Federal Rules of Civil Procedure provides that a party
“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). Information need not
be admissible in evidence to be discoverable. Fed.R.Civ.P.
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.
is not limited to the issues raised in the pleadings but
encompasses any matter that bears on or reasonably could lead
to other matter that bears on any issues that is or may be in
the case. Oppenheimer Fund, Inc. v. Sanders, 437
U.S. 340, 351 (1978). However, discovery does have ultimate
and necessary boundaries. Oppenheimer Fund, Inc.,
437 U.S. at 351. Finally, Rule 1 of the Federal Rules of
Civil Procedure provides that the Federal Rules should be
administered to “secure the just, speedy, and
inexpensive determination of every action and
Discussion Defendant propounded discovery requests
regarding Plaintiff's failure to exhaust administrative
remedies on September 8, 2016. (Dec. of A. De La
Torre-Fennell ¶ 4, ECF No. 33-1.) Plaintiff served
responses to the discovery requests on October 20, 2016.
(Id. at ¶ 5.) Defendant contends that Plaintiff
did not fully respond to the discovery requests and seeks to
compel Plaintiff to provide further responses.
contends that Plaintiff's responses to interrogatory nos.
3, 4, 5, 7, and 8 generally states that he has previously
responded to these interrogatories in his response to
interrogatory no. 2 or that the information requested is
included in the complaint and such responses are inadequate.
Defendant argues that Plaintiff should be compelled to
supplement his responses.
Interrogatory No. 3
no 3 states “[f]or each appeal you identified in
response to Interrogatory No. 1, describe in detail all
specific steps you have taken to exhaust the appeals you
contend you filed that are relevant to the allegations in
your First Amended Complaint, including any inquiries
regarding the status of the appeal. (Defendant Horowitz's
Request for Responses to Interrogatories Re: Exhaustion of
Administrative Remedies, ECF No. 33-1 at 5.) In response to
interrogatory number 3, Plaintiff responded:
On 6-26-14, Plaintiff filed Health Care Appeal Log.
No.#MCSP-HC-14045270 (pertaining to the reinstatement of his
education). On 8-23-14, Plaintiff pursued Health Care Appeal
Log No. #MCSP-HC-14045270 (pertaining to being housed on the
Upper tier and my disagreement to the medication I was
currently receiving). On or/about 11-3-14, Plaintiff pursued
Health Care Appeal Log No. #MCSP-HC~14045270 to the Third
Level; On 7-21-14, Plaintiff filed Health Care Appeal (No Log
Number) pertaining to actor Horowitz and Doctor Rudas failure
to initiate paper-work to change my housing status to
Ground-floor. On 7-23-14, Defendant Horowitz accommodated
plaintiff's request for Ground-floor status.
Response to Def. Horowitz's Request for Interrogatories
RE: Exhaustion of Administrative ...