United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding without counsel in an action
brought under 42 U.S.C. § 1983. He alleges that
defendants Oania, Casas, Tuers, Hampton, Macomber, Lynch, and
Jibson violated his rights by retaliating against him due to
his litigative conduct. ECF No. 13. Now pending before the
court are two discovery related motions.
defendants have filed a motion for terminating sanctions or
involuntary dismissal (ECF No. 112) based on plaintiff's
failure to respond to written discovery. For his part,
plaintiff has filed a motion for extension of time (ECF No.
124) wherein he asks that the deadline for responding to
defendants' discovery requests be extended. He states
that he does not understand what “Bates” numbers
are and this confusion militates in favor of additional time.
Id. at 1-2. Defendants filed an opposition to
plaintiff's motion. ECF No. 126. Plaintiff then filed a
request for the court's notice (ECF No. 127), to which
defendants responded (ECF No. 128) and plaintiff replied (ECF
reasons stated below, the court recommends that
defendants' motion for sanctions be granted.
court granted (in part) defendants' motion to compel (ECF
No. 74) on March 15, 2017. ECF No. 90. In response to this
order, plaintiff served responses on April 6, 2017 (ECF No.
94-2, at ¶ 2, Exs. A-C) which defendants deemed
deficient. After unsuccessfully attempting to resolve these
deficiencies by way of a letter and a teleconference,
defendants filed a motion for terminating sanctions on May
15, 2017. ECF No. 94. On July 27, 2017, the court denied the
motion for terminating sanctions without prejudice and
directed the parties to meet and confer and make a good faith
effort to resolve their issues informally. ECF No. 109. On
October 27, 2017 defendants filed a renewed motion for
terminating sanctions which indicated the following:
comply with the order to meet and confer, defendants'
counsel made arrangements for an in-person meeting with
plaintiff at California State Prison-Sacramento
(“CSP-SAC”) which was to be held on August 10,
2017. ECF No. 112-1 at 1 ¶ 2. A letter was mailed to
both plaintiff and the CSP-SAC litigation coordinator
advising them of the meeting. Id. at 1-2 ¶ 2.
An informational chrono attached to plaintiff's motion
indicates that, on August 2, 2017, the aforementioned letter
was delivered to plaintiff and that he stated that he
understood its contents. Id. at 8, Ex. B.
August 9, 2017, plaintiff called defendants' counsel and
stated that an unnamed doctor, who had somehow been made
aware of the meeting schedule for the next day, was reducing
plaintiff's medication and, as a consequence, plaintiff
might be too sick to attend the meeting. Id. at 4
¶ 3. Defendants' counsel informed plaintiff that he
still intended to proceed with the meeting. Id.
After the phone call, defendants' counsel contacted the
CSP-SAC litigation coordinator, who informed him that she was
unsure as to how a doctor would have learned of the meeting,
given that information concerning legal visits was
disseminated only on a need-to-know basis. Id.
meeting, in spite of the foregoing, went ahead on August 10,
2017 and defendants' counsel noted that plaintiff was
engaged in the conversation and did not appear sick.
Id. at 4 ¶ 4. At the meeting, plaintiff agreed
to provide supplemental responses to defendants'
discovery requests by August 31, 2017. Id. A letter
summarizing the discussion was sent to plaintiff by
defendants' counsel on August 11, 2017 and no objections
to this letter were forthcoming. Id.
Plaintiff provided partial supplemental responses to
defendants on or about August 16, 2017. Id. at 4
¶ 5. Defendants' counsel sent a letter detailing the
deficiencies, specifically plaintiff's failure to: (1)
provide verified responses to all of the interrogatories; (2)
respond to interrogatories one and two; and (3) identify the
documents responsive to each discovery request. Id.
at 31-32. The letter set a date - August 31, 2017 at 10 a.m.,
for the parties to discuss these issues by phone.
Id. at 32. That conversation occurred as scheduled
and, afterwards, defendants' counsel sent plaintiff a
lengthy set of Bates stamped documents which plaintiff had
provided at ¶ 2015 deposition. Id. at 5 ¶
7. These documents were provided to plaintiff to facilitate
his efforts in responding to the outstanding discovery
requests. Id. Plaintiff subsequently acknowledged
receipt of these documents and agreed to provide the
additional responses by September 29, 2017. Id. at 5
defendants' counsel had not received the supplemental
responses by October 9, 2017, he sent another letter to
plaintiff stating as much. Id. at 54. To date,
defendants' counsel states that he has still not received
the discovery responses which plaintiff promised.
Id. at 6 ¶ 11. He further states that, from
July 26, 2017 to October 27, 2017, the California Department
of Corrections and Rehabilitation had expended roughly 5, 100
dollars in connection with counsel's attempts to procure
the foregoing responses from plaintiff. Id. at 6
Rule of Civil Procedure 16(f) states:
On motion or on its own, the court may issue any just orders,
including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if
a party . . . fails to obey a ...