John L. Miller v. D.A. White, et al. Case No. CV 14-7543-GW (KK) United States District Court, C.D. California Filed May 27, 2020 Counsel John L Miller, Plaintiff, Pro se, Lancaster, CA. For D. Foreman, Inmate Appeals Coordinator, individual, D. Barker, Correctional Officer, individual, R. Henderson, Correctional Captain, individual, Paulette Finander, Chief Medical Executive, individual, Defendants: Kelli Marie Hammond, CAAG - Office of the Attorney General, California Department of Justice, Sacramento, CA. Kato, Kenly Kiya, United States Magistrate Judge Proceedings: Order Granting in Part and Denying in Part Plaintiff's Second Motion to Compel Discovery [Dkt. 103] I. INTRODUCTION *1 On March 23, 2020, Plaintiff John L. Miller (“Plaintiff”) constructively filed a Second Motion to Compel (“Motion to Compel”) seeking verified supplemental responses to Interrogatories, supplemental responses without objection to Plaintiff's Third Set of Requests for Production, and responses to Plaintiff's First Set of Requests for Production. Dkt. 103. For the reasons set forth below, Plaintiff's Motion to Compel is granted in part and denied in part. II. BACKGROUND On September 6, 2018, Plaintiff, an inmate at California State Prison – Los Angeles County (“CSP-LAC”) in Lancaster, California, constructively filed a First Amended Complaint (“FAC”) alleging various claims pursuant to 42 U.S.C. § 1983 (“Section 1983”) against defendants D.A. White, D. Foreman, D. Barker, J. Middleton, R. Henderson, and Paulette Finander each in their individual capacity. Dkt. 22. In the FAC, Plaintiff alleges violations of his First, Eighth, and Fourteenth Amendment rights generally arising out of his transfer on or about July 24, 2012, from Pleasant Valley State Prison (“PVSP”) to CSP-LAC. Id. at 13. According to the FAC, defendant White, in retaliation for Plaintiff filing numerous grievances against PVSP staff and with deliberate indifference to Plaintiff's safety, excluded the Special Needs Yard (“SNY”) designation from Plaintiff's transfer papers. Id. at 6. Plaintiff also alleges defendant Foreman, in conspiracy with defendant White, in retaliation for Plaintiff filing numerous grievances against PVSP staff and with deliberate indifference to Plaintiff's safety, delayed in processing Plaintiff's emergency appeal of his transfer without the SNY designation. Id. at 6-7. Plaintiff alleges that upon his arrival at CSP-LAC, defendants Barker and Middleton conspired in their deliberate indifference to Plaintiff's safety and denied him due process by retaining him in segregation to suffer atypical and significant hardships. Id. at 7-9. Plaintiff alleges defendant Henderson violated Plaintiff's due process rights by retaining him in segregation without a hearing and in retaliation for having filed grievances at PVSP. Id. at 9. Finally, Plaintiff alleges defendant Finander was deliberately indifferent to Plaintiff's serious medical need for Tramadol when she refused to renew his prescription, resulting in Plaintiff suffering withdrawal symptoms and gastrointestinal bleeding. Id. at 9-10. Plaintiff also alleges the denial of Tramadol violated his First Amendment right to free exercise of religion because his pain prevented him from exercising his religion – Buddhism. Id. at 10. Plaintiff seeks compensatory, nominal, and punitive damages. Id. at 10-12. On February 25, 2019, defendants Foreman, Barker, Henderson, and Finander (“Defendants”) filed an Answer. Dkt. 34. In their Answer, Defendants represent that defendants Middleton and White have not been served because defendant Middleton is deceased and defendant White has not been located for service. See dkt. 34 at 2 n.1. On April 23, 2019, Plaintiff served a First Set of Requests for Production, Nos. 1-47. Dkt. 60 at 18-19, Plaintiff's Declaration in support of First Motion to Compel (“Plf. MTC Decl.”), ¶ 2. *2 On May 2, 2019, Plaintiff served a Second set of Requests for Production, Nos. 48-50. Plf. MTC Decl., ¶ 2. In May 2019, Plaintiff also served a Third Set of Requests for Production, Nos. 51-62. Plf. MTC Decl., ¶ 2. On June 19, 2019, Plaintiff served Interrogatory Nos. 1-25 on defendant Foreman and Interrogatory Nos. 26-46 on defendant Finander. Plf. MTC Decl., ¶ 2. On June 25, 2019, Plaintiff served Interrogatory Nos. 47-71 on defendant Henderson and Interrogatory Nos. 72-96 on defendant Barker. Plf. MTC Decl., ¶ 2. On July 3, 2019, Defendants filed a Motion for Protective Order seeking relief from Plaintiff's Requests for Admission. Dkt. 50. On August 11, 2019, Plaintiff constructively filed a Motion to Compel Defendants to respond to Requests for Production of Documents and Interrogatories (“First Motion to Compel”). Dkt. 60. On November 8, 2019, the Court issued an Order denying Defendants' Motion for Protective Order, granting Plaintiff's First Motion to Compel, requiring Defendants to serve responses without objections to Plaintiff's Interrogatories and Requests for Production by November 29, 2019, and setting a discovery cut off of January 30, 2020 and a dispositive motion deadline of February 27, 2020. Dkt. 74. On January 30, 2020, Defendants served responses to Plaintiff's Interrogatories, but advised Plaintiff that signed verifications would be provided under separate cover. Dkt. 105-1, Declaration of Kelli M. Hammond (“Hammond Decl.”), ¶ 12. Defendants also advised Plaintiff via letter that they had no record of receiving Plaintiff's Third Set of Requests for Production. Id., ¶ 14. On February 5, 2020, Plaintiff received the responses to his four sets of Interrogatories. Dkt. 103 at 13-14, Declaration of Plaintiff in support of Second Motion to Compel (“Plf. Decl.”), ¶ 2. On February 6, 2020, Defendants served responses to Plaintiff's First Set of Requests for Production. Hammond Decl., ¶ 12. Also “on or about” February 6, 2020, Defendants served Interrogatory verifications signed by defendants Foreman and Barker. Id. ¶ 13. On February 18, 2020, Defendants received Plaintiff's Third Set of Requests for Production. Hammond Decl., ¶ 15. On February 24, 2020, Defendants served Interrogatory verifications signed by defendants Henderson and Finander. Hammond Decl., ¶ 16. On March 16, 2020, Defendants served responses to Plaintiff's Third Set of Requests for Production. Hammond Decl., ¶ 15. On March 20, 2020, Plaintiff received Defendants' responses to the Third Set of Requests for Production, but without the ten attachments mentioned in the responses. Plf. Decl., ¶¶ 3-4. On March 23, 2020, Plaintiff filed the instant Motion to Compel. Dkt. 103. Plaintiff states he has not received (a) any Interrogatory verifications, (b) Defendants' responses to Plaintiff's First Set of Requests for Production, or (c) the attachments to Defendants' responses to Plaintiff's Third Set of Requests for Production. Plf. Decl., ¶¶ 4, 6. In the Motion to Compel, Plaintiff seeks verified supplemental responses to Interrogatories, supplemental responses without objection to Plaintiff's Third Set of Requests for Production, and responses to Plaintiff's First Set of Requests for Production. Dkt. 103 at 1-2. *3 On April 1, 2020, Defendants' counsel spoke on the telephone with Plaintiff and agreed to send the discovery responses via email to Plaintiff's Correctional Counselor, who would then hand deliver the documents to Plaintiff. Hammond Decl., ¶ 23. On April 3, 2020, Defendants' counsel “scanned and emailed 610 pages of documents to Plaintiff's Counselor.” Hammond Decl., ¶ 24. On April 7, 2020, Plaintiff's Counselor gave Plaintiff the 610 pages scanned by Defendants' counsel, which consisted of Defendants' responses to Plaintiff's First and Third Sets of Requests for Production including attachments. Dkt. 108 at 20-21, Declaration of Plaintiff in support of Reply (“Plf. Reply Decl.”), ¶ 10. On April 8, 2020, Defendants “re-served the paper copies of all discovery responses, verifications, [and] responsive documents.” Hammond Decl., ¶ 28. On April 10, 2020, Defendants filed an Opposition to the Motion to Compel stating they believe they have complied with the Court's November 8, 2019 Order to respond to Plaintiff's Interrogatories and Requests for Production without objection and “[t]here are no more responses to provide Plaintiff.” Dkt. 105. On April 14, 2020, Plaintiff received paper copies of Defendants' responses to his First and Third Sets of Requests for Production postmarked on April 8, 2020. Plf. Reply Decl., ¶ 3. On April 27, 2020, Plaintiff filed a Reply noting he has not received Interrogatory verifications from defendants Henderson or Finander, arguing Defendants' Interrogatory responses are improperly prepared by their counsel, and seeking supplemental responses to Requests for Production, Set One, Nos. 1, 5, 7-9, 12-40, 43-45 and Requests for Production, Set Three, Nos. 52 and 62. Dkt. 108. The matter thus stands submitted. III. LEGAL STANDARD Federal Rule of Civil Procedure 26(b) provides that 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). Relevant information “need not be admissible in evidence to be discoverable.” Id. A court “must limit the frequency or extent of discovery otherwise allowed” if “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C). “A party seeking discovery may move for an order compelling an answer, ... production, or inspection.” Fed. R. Civ. P. 37(a)(3)(B)(iii), (iv). “[A]n evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer or respond.” Fed. R. Civ. P. 37(a)(4). IV. DISCUSSION A. INTERROGATORIES 1. Applicable Law Federal Rule of Civil Procedure 33 (“Rule 33”) governs interrogatories. “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 person who makes the answers must sign them, and the attorney who objects must sign any objections.” Fed. R. Civ. P. 33(b)(5). 2. Analysis *4 As an initial matter, Plaintiff complains Defendants' counsel prepared Defendants' responses to the Interrogatories and argues Defendants should be compelled to respond in their own words. Assistance of counsel, however, is clearly contemplated by Rule 33. See Exxon Corp. v. F. T. C., 384 F. Supp. 755, 764 (D.D.C. 1974) (finding plaintiff's argument that interrogatories were improperly prepared by counsel even though they were signed by the responding party “must be deemed frivolous”). Hence, Plaintiff's request to compel further Interrogatory responses is DENIED. Regarding the missing verifications from defendants Henderson and Finander, it appears despite Defendants' counsel serving the verifications on Plaintiff on February 24, 2020 and April 8, 2020, Hammond Decl., ¶¶ 16, 28, Plaintiff still has not received them, Plf. Reply Decl., ¶ 7. To the extent Plaintiff seeks sanctions based on the fact he has not received verifications signed by defendants Henderson and Finander, Plaintiff's request is DENIED. Nevertheless, within fourteen (14) days of the date of this Order, Defendants shall re-serve Plaintiff with the Interrogatory verifications signed by defendants Henderson and Finander. B. REQUESTS FOR PRODUCTION 1. Applicable Law Federal Rule of Civil Procedure 34 (“Rule 34”) governs requests for production of documents. “The party to whom the request is directed must respond in writing within 30 days after being served.” Fed. R. Civ. P. 34(b)(2)(A). The requesting party “is entitled to individualized, complete responses to each of the [Requests for Production] ..., accompanied by production of each of the documents responsive to the request, regardless of whether the documents have already been produced.” Louen v. Twedt, 236 F.R.D. 502, 505 (E.D. Cal. 2006). 2. Analysis As an initial matter, Plaintiff's request to compel responses to Requests for Production, Set One and the attachments referred to in Requests for Production, Set Three, is DENIED as MOOT, because it appears he has now received Defendants' responses and the attachments. In his Reply, Plaintiff raises a number of issues with Defendants' responses to Requests for Production, Set One, Nos. 1, 5, 7-9, 12-40, 43-45 and Requests for Production, Set Three, Nos. 52 and 62. Dkt. 108. While the Court recognizes Defendants have not had an opportunity to address Plaintiff's arguments, the Court will address Plaintiff's concerns here in an effort to avoid further discovery motions. a. Requests for Production Nos. 1, 5, and 52 Request for Production No. 1 seeks the “CDCR personnel files of the defendants in this action.” Dkt. 108, Ex. A. Defendants' response states: “These documents are deemed privileged and confidential under state law. However, responding parties are providing redacted copies of documents responsive to this request when they are received from the institution.” Dkt. 108, Ex. B. Request for Production No. 5 seeks all inmate grievances filed against Defendants during their CDCR employment. Dkt. 108, Ex. A. Defendants' response states: “Under the California Civil Code, section 1798.24, these documents are deemed privileged and confidential as they contain third party information regarding other inmates. In accordance with the law, inmates whose information will be turned over to a third party must be given thirty days to object to the Court regarding their personal information being provided. Thus[,] no documents will be provided to Plaintiff at this time.” Dkt. 108, Ex. B. Request for Production No. 52 seeks “The CDC-D Administrative Segregation Unit Placement Notice on every newly arrived inmate to CSP-LAC ... who was placed in Administrative Segregation for lack of bed space on either A-Facility, B-Facility, C-Facility, or D-Facility.” Dkt. 108, Ex. C. Defendants' response states: “Under California Civil Code section 1798.24, a state agency cannot release information on other inmates without the written consent of the individual to whom it pertains. Moreover, if an inmate was retained in administrative segregation for reasons of that inmate's disability, the information requested is privileged under the Health Insurance Portability and Accountability Act that was passed by Congress in 1996. Finally, there is no time frame as to the information requested, therefore, responding party cannot determine the information Plaintiff is requesting.” Dkt. 108, Ex. D. *5 Plaintiff correctly points out that in federal question cases, such as this case, federal privilege law applies. Miller v. Pancucci, 141 F.R.D. 292, 298 (C.D. Cal. 1992) (holding “federal law controls on issues of privilege” in action brought pursuant to Section 1983) (citing Kerr v. United States Dist. Court for North. Dist., 511 F.2d 192, 197 (9th Cir. 1975), Kelly v. City of San Jose, 114 F.R.D. 653, 656 (N.D. Cal. 1987), and Youngblood v. Gates, 112 F.R.D. 342, 344 (C.D. Cal. 1985)). Defendants fail to raise any objections based on federal law. Hence, Defendants' objections based on state law are OVERRULED and Plaintiff's request to compel supplemental responses is GRANTED. Accordingly, within fourteen (14) days of the date of this Order, Defendants shall serve supplemental responses to Requests for Production, Set One, Nos. 1 and 5 and Request for Production, Set Three, No. 52. b. Requests for Production Nos. 7 and 8 Requests for Production Nos. 7 and 8 seek “all documents” in support of and related to Defendants' defenses. Dkt. 108, Ex. A. Defendants' response states: “Documents responsive to this request are being provided as Attachment 2.” Dkt. 108, Ex. B. Here, Plaintiff argues Defendants' response stating “Documents responsive to this request are being provided as Attachment 2” implies Defendants are not producing all responsive documents. Dkt. 108 at 12. The Court finds no basis for Plaintiff's concern. Moreover, Plaintiff fails to point to any documents that have not been provided. Hence, Plaintiff's request to compel further responses to Requests for Production Nos. 7 and 8 is DENIED. c. Requests for Production Nos. 9, 17, 19-32, 35-36, 38-40, and 43-45 Request for Production No. 9 seeks documents “related to Defendant White's no longer being employed by the CDCR.” Dkt. 108, Ex. A. Defendants' response states: “Defendants are not in possession, custody, or control of documents responsive to this request, nor can they obtain such documents upon request.” Dkt. 108, Ex. B. Request for Production No. 17 seeks all documents “relating to the CDCR's Sensitive Needs Yard status, from its inception.” Dkt. 108, Ex. A. Defendants' response states: “Defendants are not in possession, custody, or control of documents responsive to this request.” Dkt. 108, Ex. B. Requests for Production Nos. 19-32, 35-36, 38-40, and 43-45 seek “all studies and papers mentioning” a variety of medical issues. Dkt. 108, Ex. A. Defendants' response to each states: “Defendants are not in possession, custody, or control of documents responsive to this request, therefore, no documents will be provided.” Dkt. 108, Ex. B. Plaintiff argues Defendants' responses to Requests for Production Nos. 9 and 17 are “bogus” because Defendants' counsel, the Office of the Attorney General, is able to obtain documents regarding defendant White. Dkt. 108 at 13, 15-16. The Requests for Production, however, are directed to Defendants – not their counsel. Defendants' responses are, therefore, sufficient. Plaintiff argues Defendants' responses to Requests for Production Nos. 19-32, 35-36, 38-40, and 43-45 are improper because the documents are available on the internet, which he does not have access to as a prison inmate. Id. at 16-17. The Court declines to require Defendants to conduct Plaintiff's internet research for him. Defendants' responses are, therefore, sufficient. Hence, Plaintiff's request to compel further responses to Requests for Production Nos. 9, 17, 19-32, 35-36, 38-40, and 43-45 is DENIED. d. Request for Production No. 12 Request for Production No. 12 seeks all changes to Sections 3000.5, 3004, 3084-3086, 3269-3270, 3335-3341.5, 3377, 3379, and 3391 of the California Code of Regulations, Title 15 and the CDCR Department Operations Manual relating to those sections since 2012. Dkt. 108, Ex. A. Defendants' response states: “Documents responsive to this request are maintained in the institution's law libraries, and are available for inspection and copying in accordance with the institution's policies and procedures.” Dkt. 108, Ex. B. *6 An objection that documents are equally available to the requesting party is inappropriate. Nat'l Acad. of Recording Arts & Scis., Inc. v. On Point Events, LP, 256 F.R.D. 678 (C.D. Cal. 2009) (finding objections that certain discovery requests seek information equally available to other party are insufficient to resist a discovery request). In response to Requests for Production Nos. 10 and 11, Defendants agreed to produce Sections 3000.5, 3004, 3084-3086, 3269-3270, 3335-3341.5, 3377, 3379, and 3391 of the California Code of Regulations, Title 15 and the CDCR Department Operations Manual in effect in July, August, and September of 2012. See Dkt. 108, Ex. B. Moreover, Defendants fail to state they are not in possession, custody, or control of documents responsive to Request for Production No. 12. Hence, Defendants' objection is OVERRULED and Plaintiff's request to compel a supplemental response is GRANTED. Accordingly, within fourteen (14) days of the date of this Order, Defendants shall serve a supplemental response to Requests for Production, Set One, No. 12. e. Requests for Production Nos. 13-16, 18, and 62 Request for Production No. 13 seeks “All documents relating to the intra-prison mail system at Pleasant Valley State Prison (“PVSP”).” Dkt. 108, Ex. A. Request for Production No. 14 seeks “All PVSP documents in effect in July and August of 2012 that have to do with the practices and procedures of the PVSP Inmate Appeals Office.” Id. Request for Production No. 15 seeks “All of plaintiff's non-medical CDCR-602 grievance appeals submitted from July 2011 to, and including, July 2012.” Id. Request for Production No. 16 seeks “All documents relating to the CDCR's Sensitive Needs Yard designation from its inception.” Id. Request for Production No. 18 seeks “All documents relating to the subject of protective custody of CDCR inmates.” Id. Request for Production No. 62 seeks “All of the CDCR documents pertaining to plaintiff's 202 transfer from Pleasant Valley State Prison (“PVSP”) to the California State Prison – Los Angeles County (“CSP-LAC”) and particularly the document showing that plaintiff arrived at CSP-LAC endorsed to Facility D.” Dkt. 108, Ex. C. Defendants' responses to Requests for Production Nos. 13-16 and 62 state that they have provided responsive documents and state there are no documents responsive to Request for Production No. 18. Dkt. 108, Ex. B. Plaintiff argues Defendants' responses are incomplete because they do not include “memorandums, performance reports, evaluations, audits, etc.” and there are “obviously many documents.” Dkt. 108 at 13-16. In addition, Plaintiff argues he “submitted a number of [additional] CDCR 602 grievance appeals” between July 2011 and July 2012 that should have been produced in response to Request for Production No. 15 and Defendants failed to produce a document showing he arrived at CSP-LAC “endorsed to Facility D” in response to Request for Production No. 62. Id. at 14, 19; Plf. Reply Decl., ¶ 13. First, Plaintiff fails to explain how additional documents are relevant to this action. Second, Plaintiff's speculation that additional documents “obviously” exist is insufficient to compel further response. Hence, Plaintiff's request to compel further responses to Requests for Production Nos. 13-16 and 18 is DENIED. f. Requests for Production Nos. 33-34 and 37 Requests for Production Nos. 33-34 and 37 seek Plaintiff's CDCR and California Correctional Health Care Services (“CCHCS”) medical records mentioning various medical issues. Dkt. 108, Ex. A. Defendants' response to each states: “Documents responsive to this request are maintained in Plaintiff's medical file which is available for inspection and copying in accordance with the institution's policies and procedures.” Dkt. 108, Ex. B. Plaintiff argues he is unable to obtain these documents because the institution's policies do not permit him to request records by subject matter. Dkt. 108 at 17. *7 Defendants' objection that documents are equally available to the requesting party is inappropriate. Nat'l Acad. of Recording Arts & Scis., Inc, 256 F.R.D. at 678. Moreover, Defendants fail to state they are not in possession, custody, or control of such documents. Hence, Defendants' objection is OVERRULED and Plaintiff's request to compel supplemental responses is GRANTED. Accordingly, within fourteen (14) days of the date of this Order, Defendants shall serve supplemental responses to Requests for Production, Set One, Nos. 33-34 and 37. V. ORDER Based upon the foregoing reasons, IT IS THEREFORE ORDERED that Plaintiff's Second Motion to Compel is GRANTED IN PART and DENIED IN PART as set forth above. Within fourteen (14) days of the date of this Order, Defendants shall (1) re-serve the Interrogatory verifications signed by defendants Henderson and Finander; and (2) serve supplemental responses to Requests for Production, Set One, Nos. 1, 5, 12, 33-34, and 37 and Request for Production, Set Three, No. 52.