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Diaz v. Fox

United States District Court, E.D. California

November 9, 2017

R. FOX, et al., Defendants.



         Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Currently before the court are the parties' motions to compel discovery (ECF Nos. 50, 54) and plaintiff's motions for contempt of court and sanctions (ECF Nos. 66, 71), recusal (ECF No. 70), and extension of time (ECF No. 72).

         I. Motion to Recuse

         As an initial matter, plaintiff's motion to recuse is properly before the undersigned. The Ninth Circuit has “held repeatedly that the challenged judge h[er]self should rule on the legal sufficiency of a recusal motion in the first instance.” United States v. Studley, 783 F.2d 934, 940 (9th Cir. 1986) (citing United States v. Azhocar, 581 F.2d 735, 738 (9th Cir. 1978)). If the affidavit is legally insufficient, then recusal can be denied. United States v. $292, 888.04 in U.S. Currency, 54 F.3d 564, 566 (9th Cir. 1995).

         “Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein.” 28 U.S.C. § 144. “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). Under both recusal statutes, the substantive standard is “whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned.” Studley, 783 F.2d at 939 (quoting Mayes v. Leipziger, 729 F.2d 605, 607 (9th Cir. 1984) (internal quotations omitted)).

         Plaintiff argues that the undersigned should recuse herself because she is a former prosecutor and has failed to rule on his pending motion for sanctions, which he asserts demonstrates her bias against him. (ECF No. 70 at 1.) The conclusory assertion that the undersigned must be biased against plaintiff because of her previous occupation is insufficient to show any actual bias or prejudice or to demonstrate that the undersigned's impartiality might be reasonably questioned. With respect to the claims that the undersigned's conduct in this case demonstrates bias, recusal “is required ‘only if the bias or prejudice stems from an extrajudicial source and not from conduct or rulings made during the course of the proceeding.'” Pau v. Yosemite Park & Curry Co., 928 F.2d 880, 885 (9th Cir. 1991) (quoting Toth v. TransWorld Airlines, 862 F.2d 1381, 1388 (9th Cir. 1988)). Plaintiff's allegation that the undersigned has deliberately delayed the consideration of his motion is founded on nothing more than speculation and plaintiff's frustration at the pace of litigation. “[A] judge, having been assigned to a case, should not recuse h[er]self on unsupported, irrational, or highly tenuous speculation.” United States v. Greenough, 782 F.2d 1556, 1558 (11th Cir. 1986). While the court understands plaintiff's frustration at how long it can take to resolve matters, these delays are not attributable to any bias toward him, but rather to the fact that judges in the Eastern District of California maintain some of the heaviest caseloads in the nation, a significant portion of which are comprised of pro se inmate cases. This sometimes causes unavoidable delays in the resolution of individual matters.

         Plaintiff's conclusory allegations, based on nothing more than speculation, are legally insufficient to establish a reasonable question as to the undersigned's impartiality or that a bias or prejudice exists. The request for recusal will therefore be denied.

         II. Motion for Extension of Time

          Plaintiff has also filed a motion for a thirty day extension of time “to comply with the Court's prior order.” (ECF No. 72.) However, he does not identify which order he is referring to or what deadline he is seeking to extend. The motion is signed September 6, 2017 (id.), and the last order the court issued prior to the filing of the motion was filed May 31, 2017 (ECF No. 61). In that order, plaintiff was granted an additional fifteen days to oppose defendants' motion to compel and reply in support of his own motion to compel. (Id.) Plaintiff filed a response to defendants' motion to compel (ECF No. 62), but never filed a reply in support of his own motion. If the deadline he is seeking to extend is the deadline for replying in support of his motion to compel, then the motion for extension is untimely and fails to demonstrate excusable neglect, [1]particularly in light of the numerous other motions and requests plaintiff filed in between the filing of the order granting his previous request for extension and the filing of his current motion for extension. See Fed.R.Civ.P. 6(b)(1)(B) (untimely motion must demonstrate excusable neglect); ECF Nos. 62, 63, 65-37, 69-72.

         It is unclear what deadline plaintiff seeks to extend and a request to extend his time to file a reply is untimely. Accordingly, the motion for extension of time will be denied.

         III. Motions for Contempt of Court and Sanctions

          Plaintiff has filed two motions for “contempt of court and monetary sanctions.” (ECF Nos. 66, 71.) Both motions concern plaintiff's placement into administrative segregation which he alleges has deprived him of access to the law library and his legal property. (Id.) He also claims that he is being denied medication for pain and acid reflux, that his typewriter was stolen, and that he was placed in administrative segregation in retaliation for initiating a lawsuit and to impede his ability to pursue his claims. (Id.) In the first motion, he requests that defendants' counsel and various non-defendants be ordered to show cause why they should not be held in contempt of court and issued monetary sanctions. (ECF No. 66 at 1, 3.) He further requests that the court require counsel and non-defendants to produce their e-mails for in camera review, that he be immediately released from administrative segregation and reinstated to his job assignment, and that a rules violation be expunged from his record. (Id. at 4.) The second motion requests that defendants and Warden Fox[2] be ordered to replace his typewriter and either immediately provide plaintiff with all of his property or be fined $500.00 per day until they provide his property. (ECF No. 71 at 2.) It also requests that any court order issued between July 6 and August 18, 2017, be vacated and that a rules violation be expunged from his record. (Id. at 2-3.) Both motions will be denied.

         Plaintiff fails to identify any court order or rule that defendants or their counsel have violated and the non-defendants are not currently before the court. Accordingly, holding these individuals in contempt of court and assessing monetary sanctions would be inappropriate. Furthermore, defendants appear to be wholly uninvolved in the incidents that serve as the basis for the motions and the incidents are entirely unrelated to the matters before the court in the instant case. The lawsuit plaintiff claims prompted the retaliation deals with allegations that he was subject to racial discrimination by individuals from the Father's House church.[3] (ECF No. 66 at 1, 4, 10.) If plaintiff wants to pursue his claims for discrimination and retaliation, he will need to do so in a separate action. To the extent plaintiff claims defendants' counsel is somehow involved in his inability to access the library or his legal property, his allegations are entirely speculative. (See ECF No. 65 (letter to court summarily concluding counsel is involved in the alleged deprivation).) Finally, plaintiff has not demonstrated that his alleged inability to access his legal property between July 6 and September 2, 2017, [4] inhibited his ability to proceed in this case and such a showing would likely be difficult as there were no deadlines pending during at that time.

         IV. Motions to Compel

         The scope of discovery under Federal Rule of Civil Procedure 26(b)(1) is broad. Discovery may be obtained as to “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed.R.Civ.P. 26(b)(1). “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Id. The purpose of discovery is to make “trial less a game of blind man's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent, ” United States v. Procter & Gamble Co., 356 U.S. 677, 682 (1958) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)), and “to narrow and clarify” the issues in dispute, Hickman, 329 U.S. at 501.

         Where a party fails to answer an interrogatory submitted under Fed.R.Civ.P. 33, or fails to produce documents requested under Fed.R.Civ.P. 34, the party seeking discovery may move for compelled disclosure. Fed.R.Civ.P. 37. “The party seeking to compel discovery has the burden of establishing that its request satisfies the relevancy requirements of Rule 26(b)(1). Thereafter, the party opposing discovery has the burden of showing that the discovery should be prohibited, and the burden of clarifying, explaining or supporting its objections.” Bryant v. Ochoa, No. 07cv200 JM (PCL), 2009 WL 1390794, at * 1, 2009 U.S. Dist. LEXIS 42339, at *3 (S.D. Cal. May 14, 2009) (citations omitted). The opposing party is “required to carry a heavy burden of showing why discovery [should be] denied.” Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975).

         A. Plaintiff's Motion

         Plaintiff has filed a motion to compel responses to his requests for interrogatories and production of documents on the grounds that defendants have waived all their objections because the responses were untimely, the objections lacked specificity, and they failed to provide a privilege log.[5] (ECF No. 50.) Defendants oppose the motion on the grounds that plaintiff failed to meet and confer with counsel prior to filing his motion, their responses were timely and sufficient, and the motion does not identify the specific discovery requests or responses at issue.

          i. Failure to Meet and Confer

         Defendants argue that plaintiff's motion to compel should be denied because he failed to comply with the meet and confer requirements of Local Rule 251. (ECF No. 51 at 2.) However, as is this court's standard practice in pro se prisoner cases such as this, the requirements of Local Rule 251 were explicitly ordered inapplicable (ECF No. 46 at 5) and this is not a valid ground for denying plaintiff's motion. Moreover, the court notes that were it to hold plaintiff to the requirements of Local Rule 251, defendants' motion to compel responses to their interrogatories and requests for production would also be denied for lack of compliance because a “meet and confer letter” does not satisfy the requirement that the parties confer in good faith. See Compass Bank v. Shamgochian, 287 F.R.D. 397, 399-400 (S.D. Tex. 2012) (collecting cases) (“Based on the foregoing case law, Plaintiff's single letter unilaterally identifying flaws in Defendant's discovery responses and setting an arbitrary response deadline for Defendant would seem to be inadequate, as it does not equate to a good faith conferral or attempt to confer”); see also Informal Telephonic Conferences re Discovery Disputes for Magistrate Judge Delaney[6] (“The parties must meet and confer in person or via telephone or video conferencing (i.e. in voice to voice dialogue; other forms of communication are not sufficient).” (emphasis in original)).

         Though not raised by defendants, Federal Rule of Civil Procedure 37(a) also contains a requirement that the movant attempt to resolve any disputes prior to seeking court intervention. However, while compliance with that rule has not been explicitly excused and the court encourages parties to attempt to resolve disputes prior to seeking court intervention, because plaintiff is incarcerated and proceeding pro se, it will not be enforced here and will not provide grounds for denying the motion.

         ii. Timeliness of Defendants' Responses

         Plaintiff argues that defendants' did not timely object to his discovery requests and they therefore waived all objections. (ECF No. 50 at 1.) His arguments indicate that he believes that defendants' responses were untimely because they were served more than thirty days after he served the requests. However, as defendants correctly point out, discovery in this matter was stayed, which consequently altered the date their responses were due.

         Plaintiff's requests for production were received by the docketing unit of the Attorney General's Office on February 5, 2016, and received by defendants' previous counsel on February 8, 2016.[7] (ECF No. 29-1 at 1, ¶ 2.) A certificate of service was not included with the requests, but they were dated January 29, 2016 (id.), making the responses due on March 2, 2016, under the default deadlines set by the Federal Rules of Civil Procedure, Fed.R.Civ.P. 33(b)(2); Fed.R.Civ.P. 34(b)(2)(A).

         Defendants filed a motion to dismiss on February 9, 2016 (ECF No. 28), and then filed a motion for a protective order to stay discovery pending resolution of the motion to dismiss and to extend their deadline for responding to plaintiff's January 29, 2016 requests until forty-five days after the motion to dismiss was resolved (ECF No. 29). The motion for protective order was filed prior to defendants' deadline to respond to plaintiff's requests. On February 24, 2016, the undersigned granted the motion to stay discovery.[8] (ECF No. 30.) It was further ordered that any discovery requests served by plaintiff would be considered “served as of the date any Discovery and Scheduling Order issues.” (Id.) This means that the defendants' deadline for responding to plaintiff's January 29, 2016 requests was to be calculated based on the date the scheduling order was issued, not the date plaintiff originally served them.

         The discovery and scheduling order was issued on November 2, 2016. (ECF No. 46.) The order altered the default thirty-day timeframe for responding to discovery requests and ordered that responses to discovery requests were “due forty-five days after the request is served.” (Id. at 4.) Defendants' responses to plaintiff's requests for production were served thirty days later on December 2, 2016 (ECF No. 51-1 at 5-6), and were therefore timely.

          iii. Sufficiency of the Motion

         Plaintiff moves to compel responses to his interrogatories and requests for production of documents. (ECF No. 50.) In their opposition, defendants refer only to requests for production (ECF No. 51) and plaintiff has not specifically identified the discovery requests at issue, so it is unclear whether he submitted both interrogatories and requests for production or just requests for production.[9] Regardless, because the motion does not identify the specific requests or responses at issue and only generally identifies the objections he argues are deficient, it will be denied with one exception.

         As addressed above, defendants' responses to plaintiff's requests were not untimely. Accordingly, their objections have not been waived due to untimeliness as plaintiff argues. Although plaintiff also argues that the objections are waived because they are overly vague and non-specific, he has not identified the specific requests or objections so that the court may evaluate these claims.

The Court does not hold prisoners proceeding pro se to the same standards that it holds attorneys. However, at a minimum, as the moving party plaintiff bears the burden of informing the court of which discovery requests are the subject of his motion to compel and, for each disputed response, why defendant's objection is not justified.

Waterbury v. Scribner, No. 1:05-cv-0764 OWW DLB PC, 2008 WL 2018432, at *1, 2008 U.S. Dist. LEXIS 53142, at *3 (E.D. Cal. May 8, 2008). Plaintiff's motion failed to provide this necessary information, leaving the court unable to assess his claims, and though defendants identified this deficiency in their opposition to the motion, plaintiff failed to file a reply addressing the issue.

         Plaintiff's final claim is that defendants' objections on the grounds of privilege are waived because they did not provide a privilege log. (ECF No. 50 at 1-3.) Defendants respond that they did provide a privilege log and submit the proof of service, though they do not provide a copy of the log. (ECF No. 51-1 at 6.) It is unclear whether plaintiff did not receive the log or whether he did not recognize the log for what it was. In either case, the court will order defendants to reserve plaintiff with a copy of their privilege log.

         For the foregoing reasons, plaintiff's motion to compel will be granted in so far as defendants will be required to re-serve their privilege log. The motion will otherwise be denied.

          B. Defendants' Motion

         Defendants assert that their requests for admissions are deemed admitted because plaintiff failed to timely respond and move to compel substantive responses to their interrogatories and requests for production. (ECF No. 54-1.) They also seek to compel plaintiff to submit to a deposition and request that they be awarded their costs and fees for the failed attempt to take plaintiff's deposition and for having to bring the instant motion. (Id.) Plaintiff opposes the motion, but focuses almost entirely on his deposition. (ECF No. 62 at 1-3.) He argues that he was not required to participate in the deposition until the court ruled on his pending motion for protective order and that he did not deliberately evade ...

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