Tagle v. Anderson, Case No. 2:16-cv-00757-JCM-PAL

• Decision Date: 19 March 2019
• Docket Number: Case No. 2:16-cv-00757-JCM-PAL
• Parties: VICTOR TAGLE, Plaintiff, v. MICHAEL ANDERSON, et al., Defendants.
• Court: U.S. District Court — District of Nevada

VICTOR TAGLE, Plaintiff, v. MICHAEL ANDERSON, et al., Defendants.

Case No. 2:16-cv-00757-JCM-PAL

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

March 19, 2019

ORDER

(Mot. Compel - ECF No. 95; Mots. Strike -ECF Nos. 99, 132)

This matter is before the court on the Motion Compel Discovery Responses (ECF No. 95) and Motions to Strike (ECF Nos. 99, 132) by defendants Jayson Artinger, Regina Barrett, Rebecca Boyd, Andrew Bulfer, Vance Crowder, Robert Douglas, Antonio Garcia, Terrel Gregory, Jonathan Hester, Salvatore Marino, Dean Ontiveros, Charles Pascascio, Alan Richardson, April Witter, Juan Zelaya, Joseph Dugan, Juan Sotomayor, Joshua Barfield, Julie Matousek, and Dwight Neven (jointly, the "NDOC Defendants"). These motions are referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and LR IB 1-3 of the Local Rules of Practice.

BACKGROUND

Plaintiff Victor Tagle is a pro se prisoner formerly in the custody of the Nevada Department of Corrections ("NDOC"). He was transferred to the Saguaro Correctional Center, a privately-run facility in Eloy, Arizona, pursuant to the Interstate Compact Agreement between NDOC and the Corrections Corporation of America. This case arises from Tagle's allegations, pursuant to 28 U.S.C. § 1983, that defendants violated his civil rights. The court determined that Tagle's Amended Complaint (ECF No. 8) states four plausible claims: (1) First Amendment mail violation, (2) denial of access to the courts, (3) due process violation for authorized, intentional deprivations of property, and (4) supervisory liability. Screening Order (ECF No. 23). The Nevada Office of the Attorney General ("Attorney General") accepted service on behalf of the NDOC defendants, Notice of Acceptance of Service (ECF No. 38), and filed their Answer (ECF No. 44).

The court entered its standard scheduling order for civil rights actions filed by incarcerated pro se plaintiffs. Scheduling Order (ECF No. 47). Mr. Tagle requested an extension of the discovery deadlines. Pl.'s Mot. Extend Time (ECF No. 68). The court granted Tagle's request and extended discovery through October 16, 2018. Order (ECF No. 82). Based on pending motions regarding discovery and service of additional defendants, the NDOC defendants requested additional time to file a motion for summary judgment. Dec. 17, 2018 Defs.' Mot. Extend Time (ECF No. 110). To preserve resources and streamline this litigation, the district judge granted the motion and ordered the NDOC defendants to file their summary judgment motion within "thirty (30) days after the court resolves the pending discovery-related motions." Order (ECF No. 111).

On September 24, 2018, Mr. Tagle submitted a 12-page document tiled "Answer to Defendants' First Set of Requests" (ECF No. 92-1) along with a 131-page attachment (ECF No. 92-2) of discovery materials. The Clerk of Court entered a minute order (ECF No. 92) returning Tagle's submission to pursuant to LR 26-8 of the Local Rules of Practice. The minute order stated, "Unless the court orders otherwise, written discovery, including discovery requests, discovery responses, deposition notices, and deposition transcripts, must not be filed with the court." Id. A notice of electronic filing for the minute order, which attached Tagle's submission, was delivered via electronic mail to the Attorney General and standard postal service to Tagle.

DISCUSSION

I. MOTION TO COMPEL (ECF NO. 95)

On October 29, 2018, the NDOC defendants filed the Motion to Compel (ECF No. 95) regarding their first sets of interrogatories, Exs. C-V (ECF Nos. 95-3 - 95-22), requests for admissions, Ex. W (ECF No. 95-23), and requests for production of documents, Ex. X (ECF No. 95-24). The NDOC defendants assert that "Tagle has failed to respond to any of the Discovery requests" as of the date of filing. Id. at 2:9-10. During the parties meet-and-confer conference, Tagle stated that he had in fact responded and he filed his response with the court. However, he could not identify any ECF numbers for his discovery responses. Defense counsel claims that a "review of the docket from September 5, 2018 to the present (i.e., ECF Nos. 89 to 94) does notshow that Tagle filed discovery responses with this Court." Id. at 2:20-21. Tagle did not respond to the NDOC defendants' motion before the November 12, 2018 deadline.¹

Parties and their counsel should strive to be cooperative, practical, and sensible during discovery, and should only seek judicial intervention "in extraordinary situations that implicate truly significant interests." Cardoza v. Bloomin' Brands, Inc., 141 F. Supp. 3d. 1137, 1145 (D. Nev. 2015) (citation omitted). "Discovery is supposed to proceed with minimal involvement of the Court." Id. A motion to compel discovery materials may only be filed when a discovery request has been timely served, the opposing party has not responded or has inadequately responded, and the moving party has attempted in good faith to resolve any dispute about the adequacy of the discovery responses without the court's intervention. Fed. R. Civ. P. 37(a); LR 26-7. A threshold issue in the review of any motion to compel is whether the movant made adequate efforts to resolve the dispute without court intervention. Id. Each party is required to make every effort to reach a satisfactory resolution. Nevada Power Co. v. Monsanto Co., 151 F.R.D. 118, 120 (D. Nev. 1993).

Here, it appears that counsel for the NDOC defendants overlooked Mr. Tagle's filing of a discovery response. The docket shows that Tagle filed an "Answer to Defendants First Set of Requests" on September 24, 2018, albeit by improperly sending the response to the court:

09/24/2018

Image materials not available for display. 92

MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Peggy A. Leen on 9/24/2018.

DISCOVERY DOCUMENTS: Unless the court orders otherwise, written discovery, including discovery

requests, discovery responses, deposition notices, and deposition transcripts, must not be filed with

the court. Your documents are returned herewith. See Local Rule 26-8. (Attachments: # 1 Answer to

Defendant's First Set of Requests, # 2 Attachment)(Copies have been distributed pursuant to the NEF

- ADR) Modified on 9/24/2018 to add order language (ADR). (Entered: 09/24/2018)

ECF Nos. 92-1, 92-2. The receipt generated by the CM/ECF filing system on September 24, 2018, indicates a notice of electronic filing was delivered via electronic mail to three separate email addresses associated with the Attorney General, including that of defense counsel. Although Mr.Tagle's refusal to serve his response to the Attorney General is not acceptable, so too is counsel's apparent failure read the court's notices of electronic filing or carefully inspect the docket prior to filing the motion, particularly after Tagle told counsel he filed his response with the court.

Mr. Tagle's Answer to Defendants First Set of Requests (ECF No. 92-1) is not responsive to the NDOC defendants' written discovery requests. In the document, he objects to the requests on meritless grounds. Id. at 2. First, Tagle objects to the NDOC defendants' instruction to send his answers back to the Attorney General based on previous problems with the mail; thus, it was sent to the court. Id. Tagle is not permitted by the Federal Rules of Civil Procedure² to deliver his discovery response to the court, instead of the Attorney General. Discovery requests must be served directly on opposing parties, who then have 30 days to serve a response directly on the requesting parties. See Fed. R. Civ. P. 34. The Local Rules of Civil Practice for this court prohibit parties from filing written discovery with the court: "Unless the court orders otherwise, written discovery, including discovery requests, [and] discovery responses ... must not be filed with the court. Originals of responses to written discovery requests must be served on the party who served the discovery request...." LR 26-8 (emphasis added).

Mr. Tagle also objects that defense counsel's requests have become more demanding. ECF No. 92-1 at 2. He asks, "at what point am I required to answer all this ???. [sic]" Id. He therefore requests the court's instruction. With regard to the NDOC defendants' requests for admissions, Tagle refuses to answer on multiple grounds. He objects to the 30-day response time. He objects to counsel's citation to LR 26-5 and instruction to write out "Defendants' Requests for Admissions in their entirety, including the number of each request, and then write his answer." Id. He suggests the requests for admissions are improper as they are "not a set of questions, AKA: interrogatory, questionary, etc. [sic]" Id. These are only a few of his unfounded objections.

The court has reviewed the NDOC defendants' discovery requests and finds no misstatements of the Federal Rules or the Local Rules of Practice. Plaintiff objects to the volume of interrogatories. However, he sued a large number of individuals and each is entitled to servehim with up to 25 interrogatories, Fed. R. Civ. P. 33(a)(1), though no defendant served more than 11 interrogatories and most served seven or less. The questions are narrowly tailored to the allegations in Tagle's Amended Complaint. Mr. Tagle's objections lack merit and are overruled.

In addition, with regard to the requests for production of documents, Tagle states that "he lacks of materials, means, 'et al.' " Id. Thus, if the NDOC defendants "have not been able to produce discovery on 6 months, even though they have everything at hand!, how do they spect me to produce his requests? None Sense, right?? [sic]" Id. Tagle objects to these "questions until he's ready to answer, discovery, & supplies provided!. [sic]" Id.

Mr. Tagle may not delay his discovery responses without the agreement of the requesting party or the court, and he certainly cannot do so indefinitely. Federal Rules 33, 34, and 36 each provide 30 days to serve discovery responses. When a party needs additional...