1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

KEITH M. CASSELLS,

Plaintiff, No. CIV S-04-1798 FCD PAN P

vs.

DR. D. MEHTA, et al.,

Defendants. ORDER

 /

Plaintiff is a prisoner without counsel seeking relief pursuant to 42 U.S.C. § 1983.

He claims (1) defendants Mehta, Donahue and Bick delayed seven months before sending

plaintiff for a follow-up visit after surgery to correct herniated discs in his neck; (2) in December

2003, defendants Dr. Mehta and Dr. Bick failed to provide plaintiff with an eggcrate mattress to

ease discomfort in plaintiff’s arms, hands and neck; (3) Dr. Mehta was deliberately indifferent o

plaintiff’s neck injury by substantially delaying “revision surgery” on plaintiff’s neck. On

December 27, 2005, and January 13, 2006, plaintiff filed a motion for an order directing

defendants to respond to plaintiff’s first request for production of documents pursuant to Fed. R.

Civ. P. 37(a)(2)(B). On January 11, 2006, and January 31, 2006, defendants filed oppositions. 

DISCOVERY STANDARDS

Parties may obtain discovery regarding any matter, not privileged, that is relevant 

Case 2:04-cv-01798-FCD-EFB Document 53 Filed 04/10/06 Page 1 of 3
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

2

to the claim or defense of any party. Fed. R. Civ. P. 26(b)(1). Information sought need not be

admissible at trial if the discovery is reasonably calculated to lead to the discovery of admissible

evidence. Id. The court may limit discovery if it determines the discovery sought is

unreasonably cumulative or obtainable from a more convenient or less expensive source, the

party seeking discovery had ample opportunity to obtain the information sought, or the burden or 

expense of the proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(2). A party

has a continuing duty to supplement, correct or amend discovery responses if the court so orders

or if the party learns the responses were in some material respect incorrect or incomplete and the

information has not otherwise been made available to other parties. Fed. R. Civ. P. 26(e)(2).

Any party may request any other party produce for inspection documents

including writings, drawings, graphs, charts or data compilations. Fed. R. Civ. P. 34(a). The

requesting party must identify the items to be produced and the party upon whom the request is

made must make a written response stating that inspection will be permitted as requested, unless

the party objects and states the basis therefor. Fed. R. Civ. P. 34(b).

A party may move for an order compelling discovery with respect to objections or

other failure to respond to interrogatories or requests to produce documents. Fed. R. Civ. P.

37(a)(2)(B), 34(b). When a party upon whom interrogatories or requests for production of

documents have been served fails to respond but then makes the required disclosure after party

seeking discovery files a motion to compel, the court may order the non-moving party to pay

reasonable expenses incurred in making the motion. Fed. R. Civ. P. 37(4)(A).

ANALYSIS

Defendants contend plaintiff has not certified that he “has in good faith conferred

or attempted to confer” with them as required by Fed. R. Civ. P. 37(a)(2)(B). This rule provides

that:

If a deponent fails to answer a question propounded or submitted under Rules 30

or 31, or a corporation or other entity fails to make a designation under Rule

30(b)(6) or 31(a), or a party fails to answer an interrogatory submitted under Rule

Case 2:04-cv-01798-FCD-EFB Document 53 Filed 04/10/06 Page 2 of 3
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

3

33, or if a party, in response to a request for inspection submitted under Rule 34,

fails to respond that inspection will be permitted as requested, the discovering

party may move for an order compelling an answer, or a designation, or an order

compelling inspection in accordance with the request. The motion must include a

certification that the movant has in good faith conferred or attempted to confer

with the person or party failing to make the discovery in an effort to secure the

information or material without court action. When taking a deposition on oral

examination, the proponent of the question may complete or adjourn the

examination before applying for an order.

Insofar as defendants did not respond that inspection would be permitted as requested, plaintiff

makes no showing he conferred or attempted to confer.

Defendants also assert plaintiff did not direct his discovery request to any

particular party and so they do not know who should respond.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff’s December 27, 2005, motion for an order compelling disclosure is

denied;

2. Any future discovery requests must be directed to a particular party; and

3. Any future motion to compel must be accompanied by a certification that

plaintiff has attempted informally to resolve the discovery dispute, as by writing a letter to

defendants’ counsel;

4. Plaintiff is advised that any future motion to compel discovery should be

accompanied by a copy of the discovery request and response that are at issue. See Local Rules

33-250, 34-250, 36-250.

DATED: April 7, 2006.

\004\dny mtc discov (#42, 46).

Case 2:04-cv-01798-FCD-EFB Document 53 Filed 04/10/06 Page 3 of 3