Martin v. Winett, et al

Filing 134

ORDER DENYING Plaintiff's Motion to Compel as Untimely 132 , signed by Magistrate Judge Barbara A. McAuliffe on 10/17/11. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ERIC MARTIN,

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CASE NO. 1:04-cv–05358-LJO-BAM PC
Plaintiff,

ORDER DENYING PLAINTIFF’S MOTION TO
COMPEL AS UNTIMELY

v.
(ECF No. 132)

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DAVID WINETT, et al.,

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Defendants.
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Plaintiff Eric Martin (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights

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action pursuant to 42 U.S.C. § 1983. The discovery and scheduling order in this action issued on

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January 6, 2011, setting the discovery cut-off date of September 6, 2011. (ECF No. 122.) Plaintiff

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filed a motion to compel on September 30, 2011.1 (ECF No. 132.)

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Plaintiff brings this motion because Defendants “bearly [sic] responded” to his interrogatories

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and have notified him that they are not going to respond to his requests for admissions and

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production of documents. (Motion to Compel 2.) Plaintiff served his request for admissions and

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request for production of documents on August 28, 2011. (Id. at 3.) In the discovery and scheduling

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order the parties were advised that all discovery requests must be served at least forty five days

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before the discovery deadline. (Discovery and Scheduling Order 1:23-24.) Additionally the parties

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were informed that all discovery, including the filing of motions to compel, must be completed by

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September 6, 2011. (Id. at 2:15-16.)

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A review of the motion to compel shows that it was prepared on September 19, 2011.

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Although Plaintiff states that he attempted to serve the discovery requests on August 15,

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2011, and was unable to because the prison copy machine was unavailable, the requests were

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untimely on that date. On May 3 and June 16, 2011, Plaintiff filed a motion for an extension of time

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to serve responses to Defendants discovery requests which was granted. Plaintiff’s argument that

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the discovery cut-off date was amended due to the granting of these motions is incorrect. Plaintiff

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did not make a motion to amend the scheduling order and the motions he submitted clearly dealt with

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his responses to Defendants’ discovery requests and did not address an extension of time for Plaintiff

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to propound discovery. Plaintiff’s request for admissions and production of documents, served less

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than two weeks prior to the discovery cut-off date, were untimely, and Defendants were not required

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to respond to these discovery requests.
Plaintiff moves to compel additional responses to his request for interrogatories propounded

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March 23, 2011.2

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interrogatories had to be filed prior to September 6, 2011.

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To be timely, Plaintiff’s motion to compel additional responses to the

Accordingly, it is HEREBY ORDERED that Plaintiff’s motion to compel, filed September

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30, 2011, is DENIED as untimely.

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IT IS SO ORDERED.

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Dated:
1c20kb

October 17, 2011

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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The Court notes that on June 8, 2011, the Court granted Defendants motion for an extension of time to file
a response to Plaintiff’s interrogatories. (ECF No. 129.) Defendants responses were due within thirty days giving
Plaintiff approximately two months to bring this motion to compel.

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