United States District Court, D. Arizona
C. Bury Judge.
discovery matters now being fully briefed, the Court allows
30 days for discovery to be completed as described below,
with any dispositive motions to be filed by January 15, 2019,
and the Joint Pretrial Order due by February 15, 2019. THERE
SHALL BE NO FURTHER EXTENSIONS OF TIME FOR DISCOVERY.
Plaintiff has filed three Motions to Compel/Sanctions and
Defendants have filed one Motion to Compel and a Motion for
Protective Order. The Plaintiff has filed a Motion for
Clarification regarding the Court's dismissal of
Defendant Monson. Both parties agree the reinstatement of
Defendant Monson in Count IV. See (Response (Doc.
199) at 1 (no objection to Defendant Monson in Count IV)).
Court denies the Plaintiff's request for sanctions,
grants in part and denies in part the motions to compel,
denies the Motion for Protective Order, and grants the Motion
sides complain that the other has failed to comply with Rule
37 of the Federal Rules of Civil Procedure, which requires
that a Motion to Compel must include a certification that the
movant has in good faith conferred or attempted to confer
with the person or party failing to make disclosure or
discovery in an effort to obtain it without court action.
Fed. R. Civ. P.37(a)(1). Plaintiff seeks sanctions against
the Defendants, which the Court denies.
Court directed that in the event of a dispute over discovery
matters, the parties should first “engage in personal
consultation regarding the dispute and  make a sincere
effort to resolve the conflict. The parties should act to
resolve discovery disputes quickly.” (Scheduling Order
(Doc. 43) at 2.) As this Court noted when it considered a
previous Motion to Compel from the Plaintiff, the Defendants
may communicate with the Plaintiff in writing or call him,
whichever form of communication they believe will be the most
efficient way to expeditiously resolve [disputes].”
(Order (Doc. 114) at 4.) To be clear, both parties, Plaintiff
and Defendants, may confer in writing or by telephone as long
as each side “present[s] to each other the merits of
their respective positions with the same candor, specificity,
and support during the informal negotiations as during the
briefing of discovery motions.” Cardoza v.
Bloomin' Brands, Inc., 141 F.Supp.3d. 1137, 1145
(Nevada 2015)). In respect to the pending discovery disputes,
the parties have now conferred in writing. Below, the Court
resolves the remaining discovery disputes.
Motion for Protective Order (Doc. 149)
16, 2018, the Defendant filed an objection to Requests for
Admissions served by the Plaintiff on Defendants on June 13
and June 15, 2018, because the discovery deadline was July 5,
2018. Rule 36 of the Federal Rule of Civil Procedure allows a
matter to be admitted or denied within 30 days of service.
Defendants argued the Requests for Admissions were untimely.
On review of the record, it appears that the Motion for
Protective Order was in response to the Plaintiff's
decision to file a Motion to Enlarge Time for Discovery (Doc.
145), but this was not entirely clear until the Defendants
filed the Reply in Support of the Motion for the Protective
Order. (Reply (Doc. 155) at 1.) In ruling on the Motion to
Enlarge the Time for Discovery, the Court denied it without
prejudice to be decided based on the outcome of the then
pending discovery motions being ruled on here.
addition to reviewing the briefs related to the Motion for
Protective Order, the Court has reviewed the briefs related
to the Motion to Enlarge Time for Discovery, including the
Defendants' Response. The Court finds that Defendant made
two objections: 1) untimeliness and 2) the sheer volume of
discovery requests to which Defendants had already responded.
The Court finds that the evidentiary value of admissions
cannot be duplicated by other discovery requests. The Court
has now determined that pending resolution of Plaintiff and
Defendants' discovery disputes, it will allow the parties
a 60 day extension of time to complete any remaining
discovery. (Order (Doc. 200) at 2.) Accordingly, the Motion
for Protective Order is DENIED. The Defendants shall answer
the June 13 and 15, 2018, Requests for Admissions.
Motion to Compel and Motion/Sanctions (Doc. 157)
for Production No. 1: Plaintiff challenges production of two
mail policies, DO 914.08.21 dated 2/26/2010 and DO 914.07.1.3
dated 3/4/2016, as inconsistent with Defendant Warford's
response to Interrogatory No. 18. Interrogatory No. 18 asked:
“After Plaintiff's lawsuit herein was filed in
January 2017, were you told by authorities at Central Office
to stop seizing material from online pen pal services.”
Warford answered: “No. DO 914 was subsequently
amended to allow inmates to receive mail from on line pen pal
services, subject to the publication review process.”
(emphasis added). Plaintiff notes that both policies
disclosed by Defendant predate his law suit. He believes that
Defendant has failed to disclose the amendment of DO 914,
referenced by Warford in answer to Interrogatory 18 that was
made subsequent to the filing of his law suit. Use of the
term “subsequently” by Warford appears to have
inaccurately described the timing of the amendments. The mail
at issue in Plaintiff's law suit was seized June 25 and
27, 2015, under the 2010 DO 914.08 policy, which was amended
March 4, 2016 after the seizure but prior to the January 2017
filing of the law suit. DENIED.
for Production No. 6: Plaintiff is willing to compromise on
this request to lessen the burden on Defendant to search
records where there is no central data base. He seeks
production of ASPC-Tucson records for contraband notices
and/or for Office of Publication Review (OPR) decisions that
reflect that Prison Inmate Online (PIO) sent their brochure
to other inmates besides the Plaintiff and mailroom
Defendants contrabanded the PIO brochure for any such
prisoners and sent it back to PIO. (Reply (Doc. 172) at 8.)
Defendant argues that Plaintiff's mail was seized because
of inmate visitation photographs that had been altered and
sent back into the institution through the mail. (Response,
Ex. A (Doc. 166-1) at 2.) The Plaintiff argues the records
are relevant to prove the Count Four allegations that
Defendant adhered to an unofficial policy and kept returning
mail sent from PIO to the Plaintiff to PIO. (Screening Order
(Doc. 161) at 5-6); (Fourth Amended Complaint (Doc. 162) at
17-23, ¶ 39) (alleging that PIO sent a message to
Plaintiff via his parents that it was able to correspond with
other ADC prisoners but not him-Defendants Frame, Warford,
and other mailroom staff were intentionally targeting him).
Plaintiff does not allege that Defendant returned PIO mail to
PIO for other inmates. Therefore, records for other inmate
PIO correspondence is of limited, if any, evidentiary value
and does not warrant the burden of the search on the
Defendant even if limited to ASPC-Tucson. DENIED.
Motion to Compel/Sanctions (Doc. 178)
Request for Production No. 6: See Order (Doc. 196)
(granting in part and denying in part Defendants' Motion
for Protective Order for disclosure of Arizona Department of
Corrections (ADC) Authorized Religious Property Lists from
2015, 2016, and 2017).
Interrogatory No. 5: Plaintiff asks Irby to “identify
any and all agreements signed by Plaintiff that show he
agreed to ‘abstain from purchasing food items at the
inmate store that [the ADC and its agents allege] are not
Kosher certified.'” (Motion (Doc. 137) at 5.) Irby
responded by identifying the Restricted Diet Order signed by
Merrick on December 30, 2015 and the settlement agreement in
Merrick I. The remainder of both parties'
responses contain argument as to whether or not these two
things are agreements and/or what these documents say.
Accordingly, the interrogatory has been answered. DENIED.
Interrogatory No. 6: Defendant Irby answered that he did not
have access to information pertaining to the cost of a Kosher
Diet compared to a regular inmate diet. Defendant has
produced records showing the relative costs in the First
Supplemental Disclosure Statement Bates No. 00137-00192.
Interrogatory No. 8: “What ADC official would be
responsible for authorizing policy that states inmates must
abstain from purchasing food items at the inmate store that
does not have a certified kosher mark while on the
diet?” Irby responded that the Director of the ADC has
delegated to the Pastoral Administrator the responsibility to
authorize and implement its inmate religious diets, and
Plaintiff inquired as to whether there is someone else
responsible for policies. According to Defendant,
“There is no one else. Irby's response merely
indicated that the Director delegates various aspects of his
authority over the ADC's policies to other staff and one
of those is the Pastoral Administer, [Defendant
Linderman].” (Response (Doc. 188) at 4.) GRANTED: The
Defendant shall clarify whether Linderman has policy making