Strohmeyer v. Belanger, 3:14-cv-00661-RCJ-WGC

• Decision Date: 28 August 2019
• Docket Number: 3:14-cv-00661-RCJ-WGC
• Parties: JEREMY STROHMEYER, Plaintiff, v. K. BELANGER, et al., Defendants.
• Court: U.S. District Court — District of Nevada

JEREMY STROHMEYER, Plaintiff, v. K. BELANGER, et al., Defendants.

3:14-cv-00661-RCJ-WGC

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

August 28, 2019

ORDER

Re: Plaintiff's Motion to Compel

(ECF Nos. 147, 149, 150 & 175)

I. BACKGROUND

Plaintiff is an inmate in the custody of the Nevada Department of Corrections (NDOC), proceeding pro se with this action pursuant to 42 U.S.C. § 1983. The events giving rise to this action took place while Plaintiff was housed at Lovelock Correctional Center (LCC) and Ely State Prison (ESP). Plaintiff filed an original complaint on December 18, 2014, and then sought leave to file an amended complaint. (ECF Nos. 1-1, 7.) District Judge Robert C. Jones granted the motion and screened the amended complaint, dismissing it in its entirety with prejudice. (ECF No. 8.) Plaintiff appealed. (ECF No. 11.)

On August 5, 2016, the Ninth Circuit Court of Appeals issued its memorandum decision affirming in part, reversing in part, vacating in part, and remanding Judge Jones' disposition on the amended complaint. (ECF No. 15.) District Judge Jones then gave Plaintiff 30 days to file a second amended complaint (SAC). (ECF No. 19.) He was provided several extensions of time to file the SAC. He filed the SAC on February 6, 2017. (ECF No. 33.) On March 27, 2018, District Judge Jones issued an order screening the SAC, permitting some claims to proceed and dismissing others with and without leave to amend. (ECF No. 44.) The case was then stayed while the parties participated in an early mediation conference, which was ultimately unsuccessful. (ECF Nos. 44, 48.)

On January 28, 2019, Plaintiff filed a motion for leave to file a third amended complaint (TAC). (ECF No. 110.) On February 15, 2019, the undersigned granted Plaintiff's motion and stayed the discovery and dispositive motion deadlines. (ECF No. 119.) The TAC is docketed at ECF No. 120. The court then screened the TAC under 28 U.S.C. § 1915A on July 2, 2019 (ECF No. 153), and allowed certain claims to proceed as follows:

(a) Count I - Eighth Amendment failure to protect claim against Jenkins, Vallaster, Whiting, Olivas and Keener;

(b) Count II - due process claims against Jenkins, Ward, Olivas, Keener, LeGrand, Kirkpatrick, Carpenter, and the unidentified investigator from the Inspector General's Office (who must be substituted within the parameters of the operative scheduling order and Federal Rules of Civil Procedure);

(c) Count III - retaliation claim against Jenkins, Belanger, Miranda, Olivas, Bequette (assuming this is an actual person and not just a pseudonym used by another defendant), and the unidentified mailroom officer(s) (who must be substituted within the parameters of the operative scheduling order and Federal Rules of Civil Procedure);

(d) Count IV - First Amendment mail tampering claim against Jenkins and Bequette. Plaintiff was also allowed to proceed against the unidentified mailroom officer(s) when he learns their identities (See, ECF No. 186), who must be substituted within the parameters of the operative scheduling order and Federal Rules of Civil Procedure;

(e) Count V - a "class of one" equal protection claim against Jenkins, Keener, Ward, Carpenter, Olivas and LeGrand;

(f) Count VI - a conspiracy claim against Jenkins, Vallaster, Whiting, Olivas, Keener, Carpenter, Ward, LeGrand, Belanger, Miranda, and Bequette;

(g) Count VIII - a retaliation claim against Olivas and Deal;(h) Count IX - a due process claim against Olivas and Deal;

(I) Count X - a conspiracy to retaliate claim against Olivas and Deal;

(j) Count XIV - an intentional infliction of emotional distress claim against Jenkins, Vallaster, Whiting, Olivas, Keener, Ward, LeGrand, Kirkpatrick; Carpenter; Belanger; Miranda, Olivas, Bequette, and Deal;

(k) Count XV - the assault and batter tort claims against Bobadilla

(2) The court stated that the TAC would not proceed on the following claims or as to the following parties which were already dismissed with prejudice from this action:

(a) Count VII - the due process claim based on the failure to transfer Plaintiff back to LCC;

(b) Count XI - the claim for right to counsel in the disciplinary hearing;

(c) Count XII - the deprivation of property claim;

(d) Count XIII - the claim that his requests for a polygraph examination were denied under State law;

(e) NDOC or its Inspector General's Office.

On July 18, 2019, Plaintiff filed a motion to correct what he perceived as mistakes in the court's July 2, 2019 Screening Order (ECF No. 163).¹ In ECF No. 163, the court granted Plaintiff's request that the court correct these mistakes or misinterpretations the court made as to Plaintiff's 68-page handwritten Third Amended Complaint. With the possible exception of the court's analysis of Plaintiff's Count XII, none of the corrections or revisions the court subsequently approved were substantive and will not have a significant bearing on the court's resolution of Plaintiff's motion to compel.²

II. PLAINTIFF'S MOTION TO COMPEL

Before the court is Plaintiff's motion to compel (ECF No. 147). Plaintiff's discovery motion pertained to Plaintiff's 40 Requests for Production which were served as to Defendant Olivas whoobjected in one fashion or another to all Plaintiff's requests. (Id. at 87-126.) Plaintiff argues Defendant should be compelled to provide further responses to the discovery requests.

Upon the filing of the motion, Defendants requested the court stay the deadline to respond to Plaintiff's 51 page Motion to Compel (ECF No. 147):

"* * * because Defendants believe that a conference with the Court regarding the issues raised in the Motion to Compel could assist in narrowing the discovery issues between the parties, and help control the excessive amount of filings in this case. . . . Plaintiff's discovery requests seek personal information from Defendants that Defendants believe is beyond the permissible scope of discovery, particularly when considering the nature of this case. For example, Plaintiff is seeking, among other things, Defendants' tax returns, cell phone contracts, cell phone application information, and GPS tracking data. Accordingly, Defendants respectfully request that the deadline to oppose Plaintiff's motion be stayed until a conference can be held to address the numerous and lengthy discovery requests that have already been propounded in this case."

(ECF No. 149 at 2.)

Defendants also filed a motion requesting the court conduct a hearing on Plaintiff's motion to compel before requiring Defendants to respond, if at all. (ECF No. 148.) The Defendants argued that the discovery Plaintiff was seeking in his motion to compel "is beyond the scope of discovery . . . ." The Defendants therefore requested that an initial hearing be held on Plaintiff's motion "to help define the scope of permissible discovery in this matter." (Id. at 2.)

The court granted Defendants' motion, stating that under the circumstances surrounding Plaintiff's motion to compel, it "appear[ed] appropriate that the court have a conference to discuss Plaintiff's discovery prior to requiring Defendant Olivas to respond." Defendants' motion to stay was granted and the court directed the Courtroom Administrator to schedule a discovery conference on Plaintiff's motion. (ECF No. 148.)

On August 12, 2019, Plaintiff filed a motion to submit additional exhibits that he claimed pertained to his motion to compel (ECF No. 175). Plaintiff's motion submitted some additional 62 pages of exhibits in supplement to his underlying 74-page motion to compel and approximately 50 pages of exhibits which accompanied his original motion.³

On August 27, 2019, the court conducted a discovery conference on Plaintiff's motion to compel at which time the court heard argument on whether Plaintiff's 40 requests for production sought legitimately discoverable information under Fed. R. Civ. P. 26(b). See ECF No. ___ (Minutes of Proceedings, 8/27/2019). The court now formally rules on the viability of Plaintiff's Requests for Production to Defendant Olivas.

III. LEGAL STANDARD

Fed. R. Civ. P. 26(b)(1) defines the scope of permissible discovery as follows:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportionat 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.

See Fed. R. Civ. P. 26(b)(1) (emphasis added). Thus, to be discoverable under Fed. R. Civ. P. 26(b)(1), the information sought must be (1) "relevant to any party's claim or defense" and (2) "proportional to the needs of the case."

A. Relevancy

Under the first prong of this test, for information to be discoverable, it must be "relevant to any party's claim or defense." Id. The term "relevant" is not defined in the Rules, but relevance is generally construed broadly. However, to be relevant, the discovery has to pertain to a claim, issue or defense that is pleaded in the case. Amgen, Inc. v. Hospira, Inc., 866 F.3d 1355, 1361 (Fed. Cir. 2017).

B. Proportionality

Under the second part of the Fed. R. Civ. P. 26(b)(1) test, to be discoverable, information must be "proportional to the needs of the case." The 2015 amendments added the proportionality requirement for permissible discovery—relevancy alone is no longer sufficient. As the Rule states, when determining whether discovery is "proportional to the needs of the case," the Court must examine the information requested in light of six factors: "[1] the importance of the issues at stake in action, [2] the amount in controversy, [3] the parties' relative access to relevant information, [4] the parties' resources, [5] the importance of the discovery in resolving the issues, and [6] whether the burden or expense of the proposed discovery...