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Picozzi v. Clark County Detention Center

United States District Court, D. Nevada

October 16, 2017

MARK PICOZZI, Plaintiff,

          ORDER (MOTIONS - ECF NO. 68, 69, 90, 93)


         This matter is before the court on Plaintiff Mark Picozzi's Motion to Compel Visit Logs / Video (ECF No. 68), Motion for Copy of Deposition (ECF No. 69), Motion to Order Discovery (ECF No. 90), and Motion for Deposition Upon Written Questions (ECF No. 93). 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.

         Mr. Picozzi is a pro se prisoner in the custody of the Nevada Department of Corrections who is proceeding in forma pauperis (“IFP”). See IFP Application (ECF No. 3); Screening Order (ECF No. 15). This case arises from Picozzi's allegations, pursuant to 28 U.S.C. § 1983, regarding his treatment while he was incarcerated at the Clark County Detention Center (“CCDC”). Upon review of the Amended Complaint (ECF No. 14), the court found that Picozzi stated plausible claims against 13 defendants: Sergeant Judd, Officers Hightower, Daos, Goins, Hans, Brooks, Phillips, Carr, Razzo, Jolley, Coker, Garcia, and Nurse Amanda Vertner.[1] See Screening Order (ECF No. 15).

         On June 1, 2016, the court entered a Scheduling Order (ECF No. 28) as to defendants Coker, Daos, Goins, Hightower, Judd, and Phillips (the “CCDC defendants”) setting various discovery and motion deadlines. The parties later requested an extension of the discovery deadlines. The court found good cause to extend the deadlines stated in the Scheduling Order by 90 days: “(1) discovery in this action shall be completed on January 30, 2017; (2) discovery motions shall be filed and served no later than February 13, 2017….” Oct. 31, 2016 Order (ECF No. 52).[2]

         I. Motion to Compel Visit Logs / Video (ECF No. 68)

         This motion, filed March 27, 2017, asks the court to compel CCDC to provide the sign-in sheets, log books, visit logs, and video of a visit CCDC said he received on April 29, 2014. The Response (ECF No. 75) argues that Picozzi's motion fails to include a certification that he has conferred or attempted to confer in good faith with other affected parties in an effort to resolve the dispute without court action. In his Reply (ECF No. 79), Picozzi asserts that he has repeatedly asked for the video to be saved in discovery requests and grievances.

         Picozzi's motion is denied for multiple reasons. First, the motion is untimely. The Scheduling Order required that the parties file any discovery motions no later than February 13, 2017. The motion was filed on March 27, 2017, and provides no explanation for why it was not filed on time. Second, the motion does not provide a copy of his requests for production or the CCDC defendants response to his requests as required by Local Rule 26-7(b) (“All motions to compel discovery or for a protective order must set forth in full the text of the discovery originally sought and any response to it.”). The purpose of that rule is to enable the court to determine whether the discovery requests and/or the responses are appropriate and comply with the discovery rules. The court cannot make this determination without seeing the original requests and the responses.

         Finally, as the Response points out, the motion does not show that Picozzi met and conferred in good faith with the CCDC defendants or attempted to do so as required by LR 26- 7(c) and Rule 37(a)(2)(B) of the Federal Rules of Civil Procedure.[3] Where one of the parties is a prisoner, the court does not require in-person meetings and allows the parties to meet and confer by telephone or by exchanging letters, which a party may then attach to his motion. Although the format of the meet-and-confer process changes, the substantive requirement remains the same- namely, the parties must engage in a good faith effort to meet and confer to resolve discovery disputes before seeking court intervention. For these reasons, the motion is denied.

         II. Motion for Copy of Deposition

         In this motion, Picozzi asks the court to reconsider its Order (ECF No. 66) denying his first motion (ECF No. 56) requesting a copy of his deposition transcript. The court has considered the CCDC defendants' Response (ECF No. 76) and Picozzi's Reply (ECF No. 80). For the reasons stated in the court's original order, the request for reconsideration is denied.

         III. Motion to Order Discovery (ECF No. 90)

         Picozzi's motion, filed July 19, 2017, argues that counsel for the CCDC defendants is refusing to turn over discovery or respond to depositions he submitted to the new defendants who were recently served. Attached to his motion are letters addressed to counsel for the CCDC defendants, dated May 31, 2016, and the Las Vegas Metropolitan Police Department Risk Management Division, dated May 1, 2014, and March 3, 2015. The letters each request preservation of video of the alleged incident that is the subject of this lawsuit. The letter to counsel also contains other discovery requests. In their Response (ECF No. 91), the CCDC defendants note that Picozzi is moving in part for the same relief he requested in the previous motion to compel (ECF No. 68), to which they already responded. See ECF No. 75. Additionally, the CCDC defendants claim that the letters are not genuine and he produced them “now, ostensibly, to support a claim that Defendants intentionally destroyed video evidence that Picozzi will likely claim would have been helpful to his case.” Response (ECF No. 91) at 2. The CCDC defendants also refer to their recent Notice (ECF No. 88) in which they describe how Mr. Picozzi ignored the court's Order (ECF No. 72) to meet and confer regarding the remaining discovery for the new defendants. In his Reply (ECF No. 92), Picozzi denies fabricating the letters and argues that his legal mail was repeatedly tampered with while he was incarcerated at CCDC.

         This motion is also untimely as it was filed almost four months after the deadline for discovery motions. Picozzi asks the court to please look at all the exhibits submitted. The court has done so. His letter requests are not requests for production of documents or tangible things. Such requests are made and served pursuant to Rule 34 of the Federal Rules of Civil Procedure. A motion to compel may be filed only when a request has been made, the opposing party or parties have failed to respond or responded in a manner the requesting party finds insufficient and the requesting party engages in a good faith effort to resolve the matter with the other side without court intervention. Mr. Picozzi does not attempt to explain why he has not complied with the scheduling order. Assuming that the letters were sent to opposing counsel in 2014, 2015, and 2016 as Picozzi claims, that still does not explain why he failed to timely file his motion by the February 2017 deadline, especially since he has filed many other motions.[4]

         With regard to Mr. Picozzi's deposition requests for the new defendants, the motion is premature. Discovery with the newly served defendants does not begin until the defendants have appeared by filing an answer or other responsive pleading, and the parties have met and conferred and submitted a proposed discovery plan and scheduling order which the court approves. See Fed. R. Civ. P. 26. It is for this precise reason that the court ordered the parties to meet and confer regarding whether Mr. Picozzi and/or the new defendants will require discovery once the new defendants answered or otherwise appeared. See Apr. 6, 2017 Order (ECF No. 72). The CCDC defendants informed the court that Picozzi refused to do so until his existing discovery motions were resolved. See Notice (ECF No. 88). In a separate ...

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