Sammy Lee Morris v. E. Burrkhouse, et al Case No. CV 19-5839-SVW (KK) United States District Court, C.D. California Filed September 28, 2022 Counsel Sammy Lee Morris, Coalinga, CA, Pro Se. Deborah Brooke Wadleigh, Ryan Zalesny, CAAG - Office of the Attorney General California Department of Justice, Los Angeles, CA, for E. Burkhouse, M. Rosales, D. Schumacher, J. Anderson. Kato, Kenly K., United States Magistrate Judge Proceedings: Order Granting Defendant Burkhouse's Motion to Compel Plaintiff's Responses to Requests for Production of Documents [Dkt. 103] *1 On August 15, 2022, defendant E. Burkhouse (“Burkhouse”) filed a Motion to Compel further responses from Plaintiff Sammy Lee Morris (“Plaintiff”) to Requests for Production of Documents Nos. 3-8 and 10-20. ECF Docket No. (“Dkt.”) 103. Plaintiff has not filed an opposition. For the reasons set forth below, Burkhouse's Motion is GRANTED. I. BACKGROUND On July 22, 2020, Plaintiff, who is currently an inmate at California Department of State Hospitals Coalinga, proceeding pro se and in forma pauperis, filed a Second Amended Complaint (“SAC”) pursuant to 42 U.S.C. § 1983 (“Section 1983”) against defendants Burkhouse, M. Rosales, D. Schumacher, and J. Anderson in their individual capacity (collectively, “Defendants”). Dkt. 56. The sole remaining claim in the SAC alleges Defendants were deliberately indifferent to a substantial risk of serious harm in violation of the Eighth Amendment. As alleged in the SAC, on May 17, 2018, while Plaintiff was an inmate at California State Prison – Los Angeles County (“CSP-LAC”), defendant Burkhouse falsely accused Plaintiff of indecent exposure and met with defendant Rosales to “fabricate” a Rules Violation Report (“RVR”). Id. at 9. Defendant Rosales subsequently issued RVR # 503831 accusing Plaintiff of the indecent exposure, with an “intent to be punitive towards Plaintiff and to justify her unlawful act of placing a yellow ‘placard’ on Plaintiff's window and having him wear an Indecent Exposure ‘Jumpsuit’ whenever he left his cell.” Id. Defendants Burkhouse and Rosales then “conspired to push the report forward” to convince defendant Schumacher (a lieutenant) to have defendant Anderson (a captain) classify the rules violation as “serious” despite knowing this would result in Plaintiff “suffering death and or threats against his life.” Id. Plaintiff alleges RVR # 503831 was “ultimately dismissed” and he was “vindicated” of all charges after submitting an appeal to the Third Level of review. Id. at 10. On November 29, 2021, Defendants filed an Answer to the SAC. Dkt. 94. On November 30, 2021, the Court issued a Scheduling Order setting a discovery cut off on June 29, 2022. Dkt. 95. On May 13, 2022, defendant Burkhouse served a First Set of Requests for Production of Documents. Dkt. 103 at 18-19, Declaration of Ryan Zalesny (“Zalesny Decl.”), ¶ 2, Ex. A. On June 10, 2022, the Court granted Defendants' Ex Parte Application to continue the discovery cut off to July 6, 2022. Dkt. 100. On June 28, 2022, Defendants deposed Plaintiff. Zalesny Decl., ¶ 2. On July 15, 2022, defense counsel received Plaintiff's “First Production Response,” which appears to be a response to defendant Burkhouse's First Set of Requests for Production of Documents. Id., Ex. D. On July 18, 2022, the Court granted Defendants' Ex Parte Application to continue the deadline for Defendants to bring a motion to compel in connection with their First Set of Interrogatories and Requests for Production to August 15, 2022. Dkt. 102. On July 21, 2022, defense counsel sent Plaintiff a meet-and-confer letter requesting further responses to Requests for Production of Documents Nos. 3-8 and 10-20 and production of all responsive documents on or before August 5, 2022. Zalesny Decl., ¶ 2, Ex. E. *2 On August 4, 2022, defense counsel received Plaintiff's “First Set Production Answered,” dated July 28, 2022, which appears to be supplemental responses to Plaintiff's “First Production Response.” Id., Ex. F. On August 15, 2022, defendant Burkhouse filed the instant Motion to Compel Plaintiff to provide further responses to Requests for Production Nos. 3-8 and 10-20 and produce all responsive documents. Dkt. 103. On August 16, 2022, the Court issued a Briefing Schedule on the Motion to Compel requiring Plaintiff to file an opposition, or notice of non-opposition, on or before September 6, 2022. Dkt. 104. Plaintiff was cautioned that “that failure to timely file an opposition to the Motion [to Compel] may result in the granting of the Motion [to Compel] in its entirety.” Id. Plaintiff did not file an opposition. The matter thus stands submitted. II. DISCUSSION A. APPLICABLE LAW 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). Federal Rule of Civil Procedure 34 (“Rule 34”) governs requests for production of documents. FED. R. CIV. P. 34. A party may request documents “in the responding party's possession, custody, or control.” FED. R. CIV. P. 34(a)(1). The responding party must respond in writing and is obligated to produce all specified relevant and nonprivileged documents, tangible things, or electronically stored information in its “possession, custody, or control” on the date specified. FED. R. CIV. P. 34(a). Alternatively, a party may state an objection to a request, including the reasons. FED. R. CIV. P. 34(b)(2)(A)-(B). “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). “In moving to compel the production of documents, the moving party has the burden of demonstrating ‘actual and substantial prejudice' from the denial of discovery.” Grossman v. Dirs. Guild of Am., Inc., No. EDCV 16-1840-GW (SPx), 2018 WL 5914242, at *4 (C.D. Cal. Aug. 22, 2018). In addition, “relevancy alone is no longer sufficient to obtain discovery, the discovery requested must also be proportional to the needs of the case.” Centeno v. City of Fresno, No. 1:16-CV-653 DAD (SAB), 2016 WL 7491634, at *4 (E.D. Cal. Dec. 29, 2016) (citing In re Bard IVC Filters Prod. Liab. Litig., 317 F.R.D. 562, 564 (D. Ariz. 2016)). *3 In addition, Local Rule 7-12 states “[t]he failure to file any required document, or the failure to file it within the deadline, may be deemed consent to the granting or denial of the motion[.]” L.R. 7-12. B. ANALYSIS Here, defendant Burkhouse's Requests for Production of Documents Nos. 3-8 and 10-12 seek relevant documents that are proportional to the needs of the case. Specifically: • Request for Production No. 3 seeks evidence regarding defendants Burkhouse and Rosales's alleged conspiracy to have defendants Schumacher and Anderson classify the RVR as serious; • Requests for Production Nos. 4-5 seek evidence regarding any causal link between defendant Burkhouse's accusation and the yellow placard or the jumpsuit; • Request for Production No. 6 seeks evidence regarding Defendants' knowledge that Plaintiff would suffer threats to his life; • Requests for Production Nos. 7-8 seek evidence regarding any causal link between any Defendant's conduct and threats of attack or attacks; • Requests for Production Nos. 10-11 seek evidence regarding Plaintiff's claim that defendant Burkhouse's RVR was dismissed and Plaintiff was vindicated after a Third Level Review of his appeal; • Requests for Production Nos. 12-15 seek evidence regarding Plaintiff's exhaustion of administrative remedies; • Requests for Production Nos. 16-10 seek evidence regarding Plaintiff's injuries; and • Request for Production No. 20 seeks Plaintiff's communications regarding his claims in this action. Zalesny Decl., Ex. A. Plaintiff's responses to each request are insufficient and non-responsive. See Zalesny Decl., Exs. D, F. In some responses, Plaintiff appears to be arguing that evidence exists that could respond to defendant Burkhouse's requests, but Plaintiff does not mention whether any responsive documents are in his possession, custody, or control. For example, in response to Requests for Production Nos. 4 and 5, Plaintiff refers to “protocols” being followed. However, Plaintiff does not state whether has a copy of these “protocols.” In addition, in response to Requests for Production Nos. 10-16, Plaintiff states CDCR has the responsive document(s) and Defendants should get it from headquarters. However, “whether a party already has the information requested is not a valid objection.” Jones v. Amicizia Events, Inc., No. CV 19-8181 DMG (ASx), 2020 WL 6065927, at *2 (C.D. Cal. Apr. 3, 2020) (citing Walt Disney Co. v. DeFabiis, 168 F.R.D. 281, 284 (C.D. Cal. 1996) (A responding party “is required to produce documents he has in his possession, custody or control, regardless of whether he believes plaintiff already has those documents.”)). Finally, many of Plaintiff's remaining responses are entirely non-responsive. See, e.g., Zalesny Decl. Ex. F, at No. 6 (“OBJECTION: With life comes death. There is also retaliation and retribution. When 9-11 happened The Gulf war was sparked. The escuse [sic] launched.”); id., at No. 7 (“OBJECTION: Only when U can judge your own fortunes with impersonality and without complaint, can U develop the capacity 2 cipher the dark matter mystery of your destiny with why it has taken 1 particular course rather than another.”); id., at No. 18 (“OBJECTION: CIPHER THE SUPRA.”). *4 In addition, the Court construes Plaintiff's failure to oppose the Motion to Compel as consent to granting the Motion to Compel in its entirety. Plaintiff was specifically warned of the consequences of failing to oppose the Motion to Compel and has nonetheless failed to file an opposition. Accordingly, defendant Burkhouse's Motion to Compel is GRANTED. III. CONCLUSION Based upon the foregoing reasons, IT IS THEREFORE ORDERED that Defendant Burkhouse's Motion to Compel is GRANTED. Plaintiff shall serve further responses to defendant Burkhouse's First Set of Requests for Production of Documents Nos. 3-8 and 10-20 and produce all responsive documents on or before October 28, 2022. IT IS SO ORDERED.