1 2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

10

11 RAYMOND D. CHESTER, 1:16-cv-01257-DAD-GSA-PC

12 Plaintiff, ORDER GRANTING IN PART PLAINTIFF’S

MOTION TO COMPEL AND DENYING

13 vs. MOTION FOR SANCTIONS (ECF No. 29.) 14 AUDREY KING, et al.,

ORDER FOR DEFENDANT BRADLEY

15 Defendants. POWERS, M.D., TO PROVIDE

VERIFICATION OF INTERROGATORIES

16 TO PLAINTIFF WITHIN THIRTY DAYS

17 18 I. BACKGROUND 19 Raymond D. Chester (“Plaintiff”) is a civil detainee proceeding pro se and in forma 20 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with 21 Plaintiff’s First Amended Complaint against defendants Audrey King (Executive Director), 22 Jagsir Sandhu, M.D. (Chief Medical Officer), Bradley Powers, M.D. (Unit Physician), and 23 Robert Withrow, M.D. (Medical Director of CSH) for providing inadequate medical treatment 24 to Plaintiff in violation of the Fourteenth Amendment. (ECF No. 10.) 25 On December 19, 2018, the court issued a Discovery and Scheduling Order, setting a 26 deadline of June 19, 2019, for the parties to conduct discovery, including the filing of motions to 27 compel, and a deadline of August 19, 2019, for the filing of dispositive motions. (ECF No. 25.) 28 The deadlines have now expired. 1 On June 5, 2019, Plaintiff filed a motion to compel defendant Bradley Powers, M.D. to 2 further respond to Plaintiff’s First Set of Interrogatories, and for sanctions. (ECF No. 29.) On 3 June 26, 2019, defendant Powers filed an opposition to the motion. (ECF No. 31.) Plaintiff did 4 not reply to the opposition, and the time for filing a reply has passed. Plaintiff’s motion to compel 5 is now before the court. Local Rule 230(l). 6 II. PLAINTIFF’S ALLEGATIONS AND CLAIMS 7 A. Allegations 8 Plaintiff’s allegations in the First Amended Complaint follow, in their entirety.

9 Plaintiff has Hepatitis C. Hepatitis C is a fatal disease of the liver. 10 Hepatitis C will destroy plaintiff’s liver and kill plaintiff if it is not treated. 11 However, there is a cure for Hepatitis C. This cure is a drug called Harvoni. 12 Harvoni is the only available treatment that will cure plaintiff’s Hepatitis C 13 disease. 14 At least three times since July 31, 2015, plaintiff has requested Hepatitis 15 C treatment, but no treatment has commenced over the past year. Plaintiff has 16 been repeatedly told that “approval is needed” to treat plaintiff’s Hepatitis C. 17 (ECF No. 10 at 4.) As of December 29, 2015, “a referral for an infectious disease 18 consultant [was] made to address treatment of [plaintiff’s] Hepatitis C” by 19 plaintiff’s former primary care physician. (Id.) Nothing else has happened to 20 actually provide plaintiff with Hepatitis C treatment. In fact, since his ascension 21 into the position of plaintiff’s Primary Care Physician in October 2016, defendant 22 Bradley Powers has made refus[al]s to pursue the critical medical treatment 23 plaintiff needs with Harvoni to stay alive and regain his health. 24 Please see attached Administrative Grievances, wherein plaintiff 25 complained about not receiving treatment for his Hepatitis C. It must be noted 26 that plaintiff is a patient in a state hospital with significant brain damage due to a 27 previous motorcycle accident; it must be further noted that the “advocate 28 1 specialists” handling plaintiff’s administrative complaints did nothing to forward 2 plaintiff’s grievances to higher levels, preferring not to advocate for plaintiff, but 3 to tell plaintiff to do it himself. (Id.) However, plaintiff is informed and believes 4 and thereon alleges that due to his verbal inquiries, defendant Powers personally 5 interfered with the former referral for Harvoni by withdrawing it; the matter was 6 personally denied by defendant Dr. Sandhu (and also by Dr. Neubarth and Dr. 7 Withrow). Upon personal inquiry to defendant King through a third party (and 8 also by Dr. Price), plaintiff has learned two things: (1) he will be consistently be 9 denied Hepatitis C treatment with Harvoni, the only available treatment to cure 10 Hepatitis C; and (2) At least four Hepatitis C patients at plaintiff’s State hospital 11 have requested Harvoni, and all four patients have been denied on the ground that 12 they were not “sick enough” for Harvoni. (Id.) In all four cases, plaintiff is 13 informed and believes and thereon alleges that the four patients denied treatment 14 with Harvoni died of cirrhosis of the liver, and therefore liver failure. In these 15 cases, Harvoni is ineffective because the defendants wait too long to initiate 16 treatment. 17 B. Civil Detainees 18 Plaintiff is a civil detainee at Coalinga State Hospital (CSH) in Coalinga, California. 19 “Persons who have been involuntarily committed are entitled to more considerate treatment and 20 conditions of confinement than criminals whose condition of confinement are designed to 21 punish.” Youngberg v. Romeo, 457 U.S. 307, 321-22 (1982). A civil detainee “is entitled to 22 protections at least as great as those afforded to a civilly committed individual and at least as 23 great as those afforded to an individual accused but not convicted of a crime.” Jones v. Blanas, 24 393 F.3d 918, 932 (9th Cir. 2004). Nevertheless, civilly committed persons can “be subjected to 25 liberty restrictions ‘reasonably related to legitimate government objectives and not tantamount 26 to punishment.’” Serna v. Goodno, 567 F.3d 944, 949 (8th Cir. 2009) (quoting Youngberg, 457 27 U.S. at 320-21). 28 /// 1 C. Plaintiff’s Medical Claim -- Fourteenth Amendment 2 The Fourteenth Amendment provides that “[n]o State shall . . . deprive any person of life, 3 liberty, or property, without due process of law.” U.S. Const. amend. 14 § 1. Fourteenth 4 Amendment protections cover a procedural as well as a substantive sphere, such that they bar 5 certain government actions regardless of the fairness of the procedures used to implement them. 6 County of Sacramento v. Lewis, 523 U.S. 833, 840 (1998). Here, because Plaintiff was and 7 remains a civil detainee, his right to be free from cruel and unusual punishment is derived from 8 the due process clause of the Fourteenth Amendment rather than the Eighth Amendment. See 9 Bell v. Wolfish, 441 U.S. 520, 535 (1979); Castro v. County of Los Angeles, 833 F.3d 1060, 10 1067–68 (9th Cir. 2016). 11 The Ninth Circuit has clarified that, in the context of detainees protected by the 12 Fourteenth Amendment, deliberate indifference is interpreted solely from an objective 13 perspective and has no subjective component. Castro, 833 F.3d at 1069–70. Rather, “a pretrial 14 detainee who asserts a due process claim for failure to protect [must] prove more than negligence 15 but less than subjective intent—something akin to reckless disregard.” Id. at 1070–71. Thus, 16 Plaintiff here must plead four elements in stating his deliberate indifference claim: (1) “[t]he 17 defendant made an intentional decision with respect to the conditions under which the plaintiff 18 was confined; (2) [t]hose conditions put the plaintiff at substantial risk of suffering serious harm; 19 (3) [t]he defendant did not take reasonable available measures to abate that risk, even though a 20 reasonable officer in the circumstances would have appreciated the high degree of risk 21 involved—making the consequences of the defendant’s conduct obvious; and (4) [b]y not taking 22 such measures, the defendant caused the plaintiff’s injuries.” Id. at 1071. Regarding the third 23 element, the defendant’s conduct must be objectively unreasonable, which is determined based 24 on the “facts and circumstances of each particular case.” Id. (quoting Kingsley v. Hendrickson, 25 135 S. Ct. 2466, 2473 (2015)). 26 On April 23, 2018, the court found that liberally construed, Plaintiff stated a medical 27 claim in the First Amended Complaint against defendants Audrey King (Executive Director), 28 Jagsir Sandhu, M.D. (Chief Medical Officer), Bradley Powers, M.D. (Unit Physician), and 1 Robert Withrow, M.D. (Medical Director of CSH) who were all employed at CSH during the 2 relevant time period. Plaintiff informed the court that Audrey King is now the former Executive 3 Director and has been replaced by Brandon Price, and that Jagsir Sandhu, M.D., was replaced by 4 Jeffrey Lee Neubarth, M.D., as Chief Medical Officer. The court liberally construed Plaintiff’s 5 pro se pleading as alleging a total failure to treat his medical condition by defendants. 6 III. MOTION TO COMPEL 7 A. Federal Rules of Civil Procedure 26(b), 33(a), and 37(a) 8 Under Rule 26(b), “[U]nless otherwise limited by court order, the scope of discovery is 9 as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to 10 any party’s claim or defense C including the existence, description, nature, custody, condition, 11 and location of any documents or other tangible things and the identity and location of persons 12 who know of any discoverable matter. For good cause, the court may order discovery of any 13 matter relevant to the subject matter involved in the action. Relevant information need not be 14 admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of 15 admissible evidence.@ Fed. R. Civ. P. 26(b)(1). 16 Pursuant to Rule 33(a), an interrogatory may relate to any matter that may be inquired 17 into under Rule 26(b). Fed. R. Civ. P. 33(a)(2). 18 Pursuant to Rule 37(a), a party propounding discovery may seek an order compelling 19 disclosure when an opposing party has failed to respond or has provided evasive or incomplete 20 responses. Fed. R. Civ. P. 37(a)(2)(3). An evasive or incomplete disclosure, answer, or response 21 is to be treated as a failure to disclose, answer, or respond.” Fed. R. Civ. P. 37(a)(3). “It is well 22 established that a failure to object to discovery requests within the time required constitutes a 23 waiver of any objection.” Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 24 (9th Cir. 1992) (citing Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981)). The moving party 25 bears the burden of demonstrating “actual and substantial prejudice” from the denial of discovery. 26 See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002) (citations omitted). 27 /// 28 /// 1 A. Plaintiff=s Motion 2 Plaintiff seeks an order compelling defendant Bradley Powers, M.D. (“Defendant”), to 3 respond further to Plaintiff’s First Set of Interrogatories which were propounded upon Defendant 4 on April 11, 2019. Counsel for defendant Powers responded to Plaintiff’s interrogatories on May 5 16, 2019. 6 Plaintiff first argues that Defendant’s responses are all frivolous objections made by 7 defense counsel, and there is no indication that Plaintiff’s interrogatories were presented to 8 Defendant by his counsel for his responses. Second, Plaintiff contends that if Defendant does 9 not possess, own, or maintain any records to respond to Plaintiff’s interrogatories, Defendant 10 should obtain access to Plaintiff’s medical records directly and/or through assistance of Coalinga 11 State Hospital’s Health Information Maintenance Division. Third, Plaintiff disagrees with 12 Defendant’s claim that the information sought by Plaintiff is equally available to Plaintiff because 13 Plaintiff does not have access to the records, nor does he have the skill to search through many 14 binders of medical documents in the limited time that would be given. Finally, Plaintiff asserts 15 that he seeks the thoughts, intent, and motive of Dr. Powers as this information is the purpose of 16 much discovery under Rule 26 of the Federal Rules of Civil Procedure. 17 B. Defendant Powers’s Opposition 18 Defendant Powers opposes Plaintiff’s motion against him because, (1) Plaintiff failed to 19 engage in a good faith effort to resolve the discovery disputes pursuant to the Federal Rules of 20 Civil Procedure and the Local Rules, and (2) Defendant Powers did not provide evasive or 21 incomplete responses or make meritless, boilerplate objections to Plaintiff’s discovery requests. 22 First, Defendant asserts that his responses to many of Plaintiff’s interrogatories are 23 dependent on an evaluation of Plaintiff’s medical records which Dr. Powers is not in possession 24 of, nor has access to the same. Defendant asserts that he has sent multiple subpoenas to CSH but 25 CSH has not released any medical records to him. Defendant stated in his written responses to 26 interrogatories that he does not possess, own, or maintain any records. 27 Second, Defendant argues that Plaintiff’s motion should be denied because Plaintiff did 28 not satisfy his burden under the Federal and Local Rules to meet and confer in good faith with 1 Dr. Powers before filing his motion. Defendant also argues that Plaintiff’s motion is deficient 2 because it does not specifically identify which discovery requests are disputed and subject to the 3 motion, and why the information he seeks is relevant to this case. 4 Finally, Defendant asserts that he fully responded to each interrogatory based on the 5 information available to him, and that he was not Plaintiff’s treating physician at the time 6 contemplated by some of the interrogatories. Defendant also asserts that a signed verification 7 was served on Plaintiff with the discovery responses. 8 C. Discussion 9 While the parties in this case are not required to meet and confer prior to filing motions 10 to compel, Defendant is correct that they are required to exchange written correspondence in an 11 attempt to resolve the issues. (ECF No. 25 at 2:15-24.) There is no indication that Plaintiff 12 complied with this directive. Defendant also correctly points out that Plaintiff’s motion to 13 compel is procedurally deficient. At a minimum, as the moving party Plaintiff bears the burden 14 of informing the court (1) which discovery requests are the subject of his motion to compel; (2) 15 which of Defendant’s responses are disputed; (3) why he believes Defendant’s responses are 16 deficient; (4) why Defendant’s objections are not justified; and (5) why the information he seeks 17 through discovery is relevant to the prosecution of this action. See e.g., Brooks v. Alameida, 18 2009 WL 331358 at *2 (E.D.Cal. Feb.10, 2009); Ellis v. Cambra, 2008 WL 860523 at *4 19 (E.D.Cal. Mar. 27, 2008). Plaintiff has not done so. Plaintiff does not address each of 20 Defendant’s responses to individual interrogatories, yet he concludes that “[e]ach and every 21 response to plaintiff’s interrogatories is a frivolous objection made by counsel.” (ECF No. 29 at 22 3 ¶ 1.) The parties are advised that the court does not hold litigants proceeding pro se to precisely 23 the same standards that it holds attorneys, therefore despite the procedural deficiencies the court 24 shall address Plaintiff’s arguments. 25 Plaintiff argues that defense counsel, and not defendant Powers, responded to his 26 interrogatories and failed to provide Defendant’s verification under oath. Under the Federal 27 Rules of Civil Procedure, interrogatories must be signed, under oath, by the party itself, not the 28 party’s lawyer. See Fed. R. Civ. P. 33(b)(3) and (5) (the party must answer each interrogatory 1 separately and fully in writing under oath—the attorney signs only as to objections that are 2 interposed). Defendant responds that a signed verification by Defendant Powers was provided 3 to Plaintiff. In the event that Plaintiff did not receive the signed verification, Defendant shall be 4 required to provide Plaintiff with a copy within thirty days. 5 Plaintiff asserts that Defendant failed to provide responses to the interrogatories that can 6 be found in documents under Defendant’s control. Plaintiff contends that Defendant is required 7 to request Plaintiff’s records from Coalinga State Hospital instead of simply stating that 8 Defendant does not own, possess, or maintain medical records. While a reasonable effort to 9 respond must be made, a responding party is not generally required to conduct extensive research 10 in order to answer an interrogatory. Gorrell v. Sneath, 292 F.R.D. 629, 629 (E. D. Cal. Apr. 5, 11 2013); L.H. v. Schwarzenegger, No. S-06-2042 LKK GGH, 2007 WL 2781132, *2 (E.D. Cal. 12 Sep. 21, 2007). Here, Defendant asserts that he does not have the records, and he has made 13 requests to CSH for the records but has not received them. Defendant cannot be expected to 14 provide answers that he does not have, or has not been able to obtain despite due diligence. 15 Plaintiff argues that he does not have access to the sought-after records himself, nor does 16 he have the skill to search through many binders of medical documents in the time that would be 17 given. However, upon a proper request, Plaintiff should be allowed access to his own medical 18 records at CSH. Plaintiff has not indicated whether he made such a request, but he makes 19 reference to multiple binders of his records that would be burdensome to search through. 20 Burdensome or not, Plaintiff may not expect Defendant to do his research for him. A party 21 answering interrogatories cannot limit his answers to matters within his own knowledge and 22 ignore information immediately available to him or under his control, Essex Builders Group, 23 Inc. v. Amerisure Insurance Co., 230 F.R.D. 682, 685 (M.D. Fla. 2005), but Defendant is not 24 required to conduct extensive research in order to answer an interrogatory. 25 The court has reviewed Defendant’s responses to each of the eight interrogatories in 26 Plaintiff’s First Set of Interrogatories and finds that all of Defendant’s responses are sufficient. 27 Plaintiff’s argument that Defendant only makes frivolous objections is without merit. While 28 Defendant has raised objections to many of the interrogatories, Defendant has also provided 1 reasonable responses to those same interrogatories “subject to and without waiving these 2 objections.” (E.g., ECF No. 29 at 11:17-22, 12:1-9, 13:10-13.) The court finds that Defendant 3 has fully and satisfactorily responded to each of the interrogatories. 4 Based on the foregoing, Plaintiff’s motion to compel shall be granted in part. Defendant 5 shall be required to provide Plaintiff with a verification of the interrogatories signed under oath 6 by Defendant Bradley Powers, M.D., within thirty days. However, Defendant is not required to 7 provide further responses to any of Plaintiff’s interrogatories. 8 IV. MOTION FOR SANCTIONS 9 Plaintiff also brings a motion for punitive sanctions against defendant Powers and defense 10 counsel. Plaintiff is not entitled to sanctions as his motion to compel was not meritorious and 11 there are no other grounds presented which support a request for sanctions. Fed. R. Civ. P. 12 37(a)(5), (d). Therefore, Plaintiff’s motion for sanctions shall be denied. 13 V. CONCLUSION 14 Based on the foregoing, IT IS HEREBY ORDERED that: 15 1. Plaintiff’s motion to compel, filed on June 5, 2019, is GRANTED IN PART; 16 2. Defendant is required to provide Plaintiff with a verification of the interrogatories 17 signed under oath by defendant Bradley Powers, M.D., within thirty days from 18 the date of service of this order; 19 3. Other than providing the verification, Defendant is not required to make any 20 further responses to any of the eight interrogatories in Plaintiff’s First Set of 21 Interrogatories; and 22 4. Plaintiff’s motion for sanctions is DENIED. 23

IT IS SO ORDERED.

24

25 Dated: August 26, 2019 /s/ Gary S. Austin

UNITED STATES MAGISTRATE JUDGE

26

27 28