United States District Court, D. Nevada
ORDER (MOT. COMPEL - ECF NO. 95; MOTS. STRIKE -ECF
NOS. 99, 132)
A. LEEN UNITED STATES MAGISTRATE JUDGE
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.
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).
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).
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.
Motion to Compel (ECF No. 95)
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 not show 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.
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).
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:
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 Attach
ment)(Co pies have been distributed pursuant to the NEF -
ADR) Modified on 9/24/2018 to add order language (ADR).
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.
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 Procedure 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 ...