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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

O.Z. MARTIN, 

Plaintiff, No. CIV S-04-2234 FCD KJM P

vs.

EDWARD ALAMEIDA, et al., 

Defendants. ORDER

 /

Plaintiff, a state prison inmate proceeding pro per, has filed a motion for an order

compelling defendants Alameida, Carey, Traquina, and Thor “to answer the following

interrogatories and produce for inspection and copying the following documents pursuant to rules

33 and 34 of the Federal Rules Civil Procedure” [sic] and for sanctions for the defendants’ failure

to comply. Plaintiff has not attached those portions of the discovery requests or the responses

thereto he believes were inadequate, but has listed several inquiries and responses and additional

questions in separate sections of his motion.

Defendants counter that plaintiff served defendants with a request for the

production of documents, not interrogatories, and assert that they have complied. They also

contend that plaintiff has posed questions in the motion to compel that were not included in his

original discovery requests.

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I. The Request For Production Of Documents

Under Local Rule 34-250(c), a request for the production of documents is not to

be filed “until there is a proceeding in which the request [or] response . . . is at issue”; plaintiff

has not filed his request now that there is a dispute. Defendants, however, have attached as

Exhibit A their responses to plaintiff’s first request for production of documents, reproducing the

requests:

REQUEST NO. 1: State the current addresses, job titles, duties and

responsibilities for each defendant. If this information is set forth

in any document, produce the document.

RESPONSE TO REQUEST NO. 1: Defendant objects to this

request on the grounds that it is not a request for a document. 

Without waiving this objection, copies of the duty statements for

the Director or the California Department and Rehabilitation

(CDCR), Warden, and Physician & Surgeon are being produced as

Attachment 1.

REQUEST NO. 2: State the names, current addresses, job titles,

duties and responsibilities for each member of the CSP Solano

Medical Authorization Review Committee that denied plaintiff’s

reconstructive ear surgery. If this information is set forth in any

document, produce the document.

RESPONSE TO REQUEST NO. 2: Defendant objects to this

request on the grounds that it is not a request for a document,

vague as to the date of the MAR committee, and not reasonably

calculated to lead to the discovery of admissible evidence. 

Without waiving these objections, and assuming that plaintiff is

referring to the MAR Committee that denied his request for

cosmetic surgery, copies of the duty statements for Physician &

Surgeon are being produced as Attachment 1.

Defendants have also included the duty statements as attachments to their responses.

According to defendant’s response, plaintiff’s request was labeled a “First

Request For Production Of Documents.” His attempts to combine interrogatories under Federal

Rule of Civil Procedure 33 with a request for production of documents under Federal Rule of

Civil Procedure 34 fails. See Britting v. Pennsylvania Greyhound Lines, 10 F.R.D. 536 (N.D.

Ohio 1950). Defendants responded to that portion of plaintiff’s request which called for a

document, but declined to answer the questions posed. This was proper. 

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II. Discovery Sought

In the second part of his motion entitled “Discovery Sought,” plaintiff poses

interrogatories to the defendants, seeking information about their tenure in various jobs and the

number of successful lawsuits against each. Defendants counter that these were not part of

plaintiff’s original discovery requests. In his reply, plaintiff claims to have served two discovery

requests to defendants, implying that the questions he posed in the motion to compel were

included in one of the requests. However, because plaintiff has not attached those portions of the

requests, in contravention of Local Rules 33-250(c) and 34-250(c), this court cannot evaluate his

claim. 

To the extent plaintiff attempts to use the motion to compel to seek additional

discovery is unavailing; a motion to compel is designed to secure a party’s response when that

party has refused to respond to requests. Fed. R. Civ. P. 37(a)(2)(B). Plaintiff’s status as a pro se

litigant does not excuse his failure to comply with the rules of procedure. Creative Gifts, Inc. v.

UFO, 235 F.3d 540, 549 (10th Cir. 2000).

III. Request for Sanctions

Plaintiff seeks sanctions of $100 a day from each defendant for their failure timely

to respond to his discovery requests; it is unclear whether plaintiff seeks the same sanctions

because of what he deems to be defendants’ unacceptable response to his request for production

of documents. 

As noted above, on the record plaintiff has provided, this court cannot find that

defendants’ responses are vague or inadequate. Moreover, defendants’ August 9, 2006 responses

were timely with regard to plaintiff’s June 22 request, within the forty-five days given in this

court’s discovery order of May 11, 2006 plus the three days permitted for mailing under Federal

Rule of Civil Procedure 6(e) and Local Rule 6-136(a). Sanctions are not appropriate. See

Creative Resources Group of New Jersey, Inc. v. Creative Resources Group, Inc., 212 F.R.D. 94,

103 (E.D.N.Y. 2002) (sanctions appropriate when needed to ensure offending party will not

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benefit from discovery failure). 

Accordingly, IT IS HEREBY ORDERED that plaintiff’s August 23, 2006 motion

to compel discovery is denied.

DATED: October 26, 2006.

______________________________________

UNITED STATES MAGISTRATE JUDGE

2

mart2234.dd

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