(PC) Webster v. Haskins

[4] 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA [7] 8 THOMAS WEBSTER, Case No. 1:18-cv-01640-BAM (PC) 9 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR ORDER COMPELLING PRODUCTION 10 v. OF DOCUMENTS AND SECOND REQUEST FOR ORDER COMPELLING FURTHER 11 HASKINS, DISCOVERY (ECF Nos. 59, 74) 12 Defendant. ORDER DENYING PLAINTIFF’S MOTION 13 FOR THIRD PARTY PRODUCTION OF DOCUMENTS 14 (ECF No. 72) 15 ORDER DENYING PLAINTIFF’S REQUEST TO STAY DEFENDANTS’ MOTION FOR 16 SUMMARY JUDGMENT AND AMENDED SECOND REQUEST TO STAY 17 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 18 (ECF Nos. 73, 81) 19 ORDER DENYING PLAINTIFF’S MOTION FOR COURT TO APPOINT AN EXPERT 20 WITNESS (ECF No. 75) [21] ORDER DIRECTING PLAINTIFF TO FILE 22 OPPOSITION TO MOTION FOR SUMMARY JUDGMENT [23] TWENTY-ONE (21) DAY DEADLINE [24] 25 Plaintiff Thomas Webster (“Plaintiff”) is a civil detainee proceeding pro se and in forma 26 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983 . Individuals detained under 27 California Welfare Institutions Code § 6600 et seq. are civil detainees and are not prisoners 28 within the meaning of the Prison Litigation Reform Act. Page v. Torrey, 201 F.3d 1136 , 1140 1 (9th Cir. 2000). This action proceeds against Defendant Haskins (“Defendant”) for denial of 2 adequate medical care in violation of the Fourteenth Amendment. All parties have consented to 3 Magistrate Judge jurisdiction. (ECF Nos. 22, 37.) 4 Pursuant to the Court’s May 4, 2020 discovery and scheduling order, the deadline for 5 completion of all discovery, including motions to compel, was January 4, 2021. (ECF No. 42.) 6 The deadline for filing dispositive motions was March 15, 2021. (Id.) 7 Currently before the Court are a variety of motions filed by Plaintiff concerning discovery 8 requests and Defendants’ pending motion for summary judgment. All are fully briefed or the 9 deadlines for filing responses and deadlines have expired. The Court will address each in turn. 10 I. First Motion to Compel Discovery from Defendant 11 On November 17, 2020, Plaintiff filed a motion for an order compelling disclosure or 12 discovery by Defendant. (ECF No. 59.) In response to the Court’s order requiring Defendant to 13 respond to the motion, Defendant filed a response on December 29, 2020. (ECF No. 62.) 14 Plaintiff filed a reply on February 23, 2021.1 (ECF No. 67.) 15 Plaintiff’s motion to compel argues that on August 21, 2017, Defendant Haskins showed 16 Plaintiff two emails that were addressed to non-party Rhonda Love, with confirmation that they 17 were received, and Defendant has not produced those emails in response to Plaintiff’s discovery 18 requests. (ECF No. 59.) Defendant responds that the specific emails identified by Plaintiff do not 19 exist, and Defendant sent all other communications that might have been responsive to the 20 Requests for Production at issue. (ECF No. 62.) Furthermore, Defendant Haskins declares, under 21 penalty of perjury, that as a policy she never shows residents of Haskins Residential Center 22 (“HRC”) emails, or any other documents, stored on her computer due to the risk of an unintended 23 disclosure of confidential information. (ECF No. 62-2, p. 2.) In reply, Plaintiff contends that 24 Defendant has previously shown Plaintiff, and other residents of HRC, images or information on 25 her computer, belying her assertion that she never shows documents stored on her computer to [26] 1 Though the reply is untimely, Plaintiff states that he was diagnosed with COVID-19 and has had 27 to report to a quarantine unit at his institution. Plaintiff states that he has worked as diligently as possible in providing a timely response to Defendant’s opposition to his motion to compel. The 28 Court therefore accepts the reply as timely filed. 1 residents of HRC. Plaintiff also attempts to correct other purported deficiencies in his original 2 Requests for Production that were not originally raised in his motion to compel. (ECF No. 67.) 3 The Court cannot compel a party to produce documents that do not exist, and Defendant 4 Haskins has declared, under penalty of perjury, that the specific emails at issue do not exist. 5 Moreover, Defendant has attempted to comply with Plaintiff’s discovery request to the best of her 6 ability, conducting a search of files on her own computer and the files of her email provider, and 7 produced those emails that were responsive to Plaintiff’s request. (ECF No. 62-2.) In the 8 absence of evidence to the contrary, which has not been presented here, Plaintiff is required to 9 accept Defendant’s response that, despite a diligent search, the specific requested emails do not 10 exist. See Mootry v. Flores, 2014 WL 3587839 , *2 (E.D. Cal. 2014). Accordingly, Plaintiff’s 11 first motion to compel is denied. 12 II. Second Motion to Compel Discovery from Defendant 13 On April 1, 2021, Plaintiff filed a second request for an order compelling further 14 discovery from Defendant Haskins. (ECF No. 74.) Defendant filed an opposition on April 16, 15 2021. (ECF No. 80.) Plaintiff did not file a reply. 16 In his second motion to compel, Plaintiff appears to be submitting additional discovery 17 requests—or more specific and targeted requests—in response to Defendant Haskins’ objections 18 to his earlier discovery requests. (ECF No. 74.) Defendant Haskins opposes the second motion 19 to compel as untimely. (ECF No. 80.) 20 The Court agrees that Plaintiff’s second motion to compel discovery from Defendant 21 Haskins is untimely. The deadline for completion of all discovery, including the filing of motions 22 to compel, was January 4, 2021. (ECF No. 42.) Plaintiff’s second motion to compel was not 23 filed until April 1, 2021, three months later. (ECF No. 74.) Plaintiff has not explained his failure 24 to file the motion, or propound requests for documents, prior to the expiration of the discovery 25 deadline, and therefore the motion is denied as untimely. 26 III. Motion for Third Party Production of Documents 27 On April 1, 2021, Plaintiff filed a motion requesting third party production of documents 28 from third parties Dr. S. Amin and an individual possibly named Dr. Scott. (ECF No. 72.) 1 Plaintiff states that he had intended to ask for a subpoena to have these individuals testify at trial, 2 but this discovery is now needed to respond to Defendant’s motion for summary judgment. (Id.) 3 Defendant filed an opposition on April 12, 2021, arguing only that the motion is untimely because 4 it was filed after the close of discovery. (ECF No. 79.) Plaintiff did not file a reply. 5 The Court agrees that Plaintiff’s motion for third party production is untimely. The 6 deadline for completion of all discovery, including the filing of motions to compel, was January 7 4, 2021. (ECF No. 42.) Plaintiff’s motion for third party production from Dr. Amin and Dr. 8 Scott was not filed until April 1, 2021, three months later. (ECF No. 72.) 9 Plaintiff argues that he intended to subpoena these individuals to testify at trial, but now 10 needs discovery in order to oppose Defendant’s motion for summary judgment. This is not an 11 adequate reason for filing this untimely discovery motion. It was Plaintiff’s responsibility to 12 conduct discovery in the time allotted, or timely request an extension, to defend against a possible 13 summary judgment motion, rather than waiting to request discovery in preparation for trial. As it 14 appears Plaintiff was aware of the names of these potential witnesses before Defendant’s motion 15 for summary judgment was filed, and prior to the close of discovery, Plaintiff has not provided 16 sufficient explanation as to why he was unable to request production of these documents in a 17 timely fashion, therefore the motion is denied as untimely. 18 IV. Request and Amended Second Request to Stay Motion for Summary Judgment 19 On April 1, 2021, Plaintiff also filed a request to stay Defendant’s motion for summary 20 judgment, arguing that the Court should allow Plaintiff to obtain necessary discovery pursuant to 21 Federal Rule of Civil Procedure 56(d)(2). (ECF No. 73.) Defendant filed an opposition on April 22 9, 2021, arguing that the motion is a procedurally defective attempt to reopen discovery. (ECF 23 No. 77.) 24 Plaintiff filed an amended second request to stay the summary judgment motion in 25 response to Defendant’s opposition, attempting to correct some of the identified deficiencies in 26 his first request. (ECF No. 81.) Plaintiff argues that he cannot respond to Defendant’s statement 27 of undisputed facts without discovery, and Defendant has refused to reply to his discovery 28 requests or provided evasive or incomplete responses. (Id.) Defendant filed an opposition on 1 April 23, 2021, again arguing that Plaintiff’s motion is a procedurally defective attempt to reopen 2 discovery, and Plaintiff has no reason for not having pursued discovery prior to the deadline. 3 (ECF No. 82.) Plaintiff did not file a reply. 4 Federal Rule of Civil Procedure 56(d), formerly Rule 56(f), provides that “[i]f a 5 nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts 6 essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) 7 allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other 8 appropriate order.” Fed. R. Civ. P. 56(d). In seeking relief under Rule 56(d), Plaintiff bears the 9 burden of specifically identifying relevant information, where there is some basis for believing 10 that the information actually exists, and demonstrating that the evidence sought actually exists 11 and that it would prevent summary judgment. Blough v. Holland Realty, Inc., 574 F.3d 1084 , 12 1091 n.5 (9th Cir. 2009). 13 “Though the conduct of discovery is generally left to a district court’s discretion, 14 summary judgment is disfavored where relevant evidence remains to be discovered, particularly 15 in cases involving confined pro se plaintiffs.” Klingele v. Eikenberry, 849 F.2d 409, 412 (9th Cir. 16 1988). Thus, summary judgment in the face of requests for additional discovery is appropriate 17 only where such discovery would be “fruitless” with respect to the proof of a viable claim. Jones 18 v. Blanas, 393 F.3d 918, 930 (9th Cir. 2004). “The burden is on the nonmoving party, however, 19 to show what material facts would be discovered that would preclude summary judgment.” 20 Klingele, 849 F.2d at 412 ; see also Conkle v. Jeong, 73 F.3d 909, 914 (9th Cir. 1995) (“The 21 burden is on the party seeking to conduct additional discovery to put forth sufficient facts to show 22 that the evidence sought exists.”). Moreover, “‘[t]he district court does not abuse its discretion by 23 denying further discovery if the movant has failed diligently to pursue discovery in the past.’” 24 Conkle, 73 F.3d at 914 (quoting Cal. Union Ins. Co. v. Amer. Diversified Sav. Bank, 914 F.2d 25 1271, 1278 (9th Cir. 1990)). 26 Plaintiff’s motions are attempting to use Rule 56(d) to reopen discovery. As discussed 27 above, discovery closed in this action on January 4, 2021, and Plaintiff has not provided any 28 explanation for his failure to complete discovery prior to that date. Although Plaintiff argues that 1 he needs additional time to complete discovery due to Defendant’s incomplete or evasive answers 2 to his discovery requests, the appropriate way to address those concerns would have been through 3 the filing of a motion to compel—prior to the expiration of the discovery deadline. Plaintiff was 4 aware of the process for filing a motion to compel, as he filed multiple motions to compel 5 discovery from third parties throughout the course of discovery. 6 However, Plaintiff filed only one timely motion to compel discovery from Defendant 7 Haskins. (ECF No. 59.) That motion, addressed above, pertained solely to the production of two 8 specific emails. It did not address concerns Plaintiff may have had with Defendant’s responses to 9 his other discovery requests, and the new requests included in Plaintiff’s April 16, 2021 were 10 filed more than three months late. Plaintiff has not explained why he failed to file a motion to 11 compel regarding these previous discovery requests, and the Court declines to reopen discovery 12 where Plaintiff has not shown that he diligently pursued discovery of these materials in the past. 13 Conkle, 73 F.3d at 914 . The motion is denied. 14 V. Motion to Appoint Expert Witness 15 On April 8, 2021, Plaintiff filed a motion requesting the Court to appoint an expert 16 witness. (ECF No. 75.) Defendant did not file a response. 17 In his motion, Plaintiff argues that he is indigent and unable to pay for an expert witness, 18 and Defendant’s motion for summary judgment requires Plaintiff to respond with an expert 19 witness of his own. Further, appointment of an expert witness would avoid a wholly one-sided 20 presentation of facts needed to resolve the issues at stake. (Id.) 21 Federal Rule of Evidence 706 authorizes courts, within their discretion, to appoint a 22 neutral, independent expert witness. Fed. R. Evid. 706(a); Walker v. Am. Home Shield Long 23 Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999). The appointment of such an expert 24 witness may be appropriate when “scientific, technical, or other specialized knowledge will assist 25 the trier-of-fact to understand the evidence or decide a fact in issue.” Ledford v. Sullivan, 105 26 F.3d 354, 358-59 (7th Cir. 1997). 27 However, the statute authorizing a petitioner’s in forma pauperis status does not authorize 28 the expenditure of public funds for expert witnesses. See 28 U.S.C. § 1915 ; Tedder v. Odel, 890 1 F.2d 210 , 211–12 (9th Cir. 1989) (per curiam) (expenditure of public funds on behalf of indigent 2 litigant is proper only when authorized by Congress); Boring v. Kozakiewicz, 833 F.2d 468 , 474 3 (3d Cir. 1987) (no provision to pay fees for expert witnesses). An indigent prisoner litigant must 4 bear his or her own costs of litigation, including witnesses. See, e.g., Tedder, 890 F.2d at 211. 5 Furthermore, although a court may apportion costs for the expert witnesses among the 6 parties, including apportionment of costs to one side, Fed. R. Evid. 706; Ford ex rel. Ford v. Long 7 Beach Unified School Dist., 291 F.3d 1086, 1090 (9th Cir. 2002); Walker, 180 F.3d at 1071 , 8 where the cost would likely be apportioned to the state, the court should exercise caution. 9 Finally, there is no indication that a neutral expert will be required to assist the trier of fact 10 in this matter. Plaintiff’s allegations are not so complicated as to require the appointment of an 11 expert witness to assist the court and/or a jury. To the extent Plaintiff argues that appointment of 12 an expert is necessary to avoid a one-sided presentation of the facts in this case, Plaintiff is 13 informed that Federal Rule of Evidence 706 does not contemplate court appointment and 14 compensation of an expert witness as an advocate for Plaintiff. Brooks v. Tate, 2013 WL 15 4049043, *1 (E.D. Cal. Aug. 7, 2013) (denying appointment of medical expert on behalf of state 16 prisoner in section 1983 action); Gorrell v. Sneath, 2013 WL 3357646 , * 1 (E.D. Cal. Jul. 3, 17 2013) (purpose of court-appointed expert is to assist the trier of fact, not to serve as an advocate 18 for a particular party). Moreover, Rule 706 is not a means to avoid the in forma pauperis statute 19 and its prohibition against using public funds to pay for the expenses of witnesses. Manriquez v. 20 Huchins, 2012 WL 5880431 , * 12 (E.D. Cal. 2012). 21 VI. Order 22 Based on the foregoing, IT IS HEREBY ORDERED as follows: 23 1. Plaintiff’s motion for order compelling production of documents, (ECF No. 59), and 24 second request for order compelling further discovery, (ECF No. 74), are DENIED; 25 2. Plaintiff’s motion for third party production of documents, (ECF No. 72), is DENIED; 26 3. Plaintiff’s request to stay Defendant’s motion for summary judgment, (ECF No. 73), and 27 amended second request to stay Defendant’s motion for summary judgment, (ECF No. 28 81), are DENIED; 1 4. Plaintiff’s motion for the Court to appoint an expert witness, (ECF No. 75), is DENIED; 2 5. Plaintiff’s opposition to Defendant’s motion for summary judgment is due within twenty3 one (21) days from the date of service of this order; and 4 6. Plaintiff’s failure to file an opposition in compliance with this order will result in 5 dismissal of this action, with prejudice, for failure to prosecute. [6] IT IS SO ORDERED. [7] 8 Dated: September 13, 2021 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE