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ORDER DENYING PLAINTIFF’S

MOTION TO COMPEL

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

JAMES A. BOYD, )

)

Plaintiff, ) CASE NO. C06-360-MJP-JPD

)

v. )

)

)

DR. MARC STERN, et al., ) ORDER DENYING PLAINTIFF’S

) MOTION TO COMPEL

Defendants. )

____________________________________)

This is a civil rights action brought under 42 U.S.C. § 1983. Plaintiff alleges in his civil

rights complaint that defendants have denied him necessary treatment for his Hepatitis C in

violation of his right to be free from cruel and unusual punishment and his right to equal

protection. Currently before the Court is plaintiff’s motion for an order to compel discovery. At

issue is a document which plaintiff requested from defendants in his first set of interrogatories

and requests for production but which defendants refused to produce. 

Specifically, plaintiff asked defendants to produce “a copy of the number of inmates in

the Washington Dept. of Corrections, (Black, White, Native and Hispanic), who have been

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ORDER DENYING PLAINTIFF’S

MOTION TO COMPEL

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retreated with pegylated interferon and ribaviron (sic), after failing to respond to interferon and

ribaviron (sic), this did not include the identity or medical records of these inmates.” Defendants

responded that this request was “not reasonably calculated to lead to the discovery of admissible

evidence, as it seeks information relating to inmates who are not parties to this lawsuit.” Plaintiff

maintains that this information is relevant to his equal protection claim.

Defendants oppose the instant motion on several grounds. Defendants argue that plaintiff

failed to give reasonable notice to defendants before applying for an order compelling discovery

as required by Fed. R. Civ. P. 37(a). Defendants further argue that plaintiff failed to make a

good-faith effort to confer with defendants, or to certify that he had attempted to do so, prior to

filing his motion. Finally, defendants argue that the information being sought by plaintiff is not a

required disclosure under either Fed. R. Civ. P. 26(a) or Fed. R. Civ. P. 34(a) because plaintiff

seeks production of a “number” and not a document or tangible thing. 

Plaintiff appears to concede in his reply brief that he did not fully comply with all

procedural requirements before filing his motion to compel. He attributes this premature filing to

the fact that he knew his transfer from one institution to another was imminent. He also requests

in his reply brief that defendants be compelled to produce for in camera review the medical

records of all inmates within the Washington Department of Corrections who have been retreated with pegylated interferon and ribavirin if the Court decides that defendants should not be

compelled to produce the document he originally requested.

Plaintiff’s motion for an order compelling discovery is subject to denial on procedural

grounds as the record makes clear that plaintiff did not give reasonable notice to defendants

before filing his motion nor did he certify that he made a good faith effort to meet and confer

with defendants before filing his motion. Moreover, the Court is not satisfied, based upon its

review of 

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ORDER DENYING PLAINTIFF’S

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the record, that the information being sought by plaintiff is discoverable. For all of these reasons,

plaintiff’s motion to compel (Dkt. No. 21) is denied.

The Clerk is directed to send copies of this Order to plaintiff, to counsel for defendants,

and to the Honorable Marsha J. Pechman.

DATED this 5th day of November, 2006.

AJAMES P. DONOHUE

United States Magistrate Judge 

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