Howard v. Gradtillo et al

Filing 80

ORDER DENYING Plaintiff's 75 Motion to Reconsider Order Denying Motion to Compel; ORDER DENYING Plaintiff's 77 Motion to Compel; ORDER DENYING Plaintiff's 78 Motion to Extend Discovery Deadline, signed by Magistrate Judge Gerald B. Cohn on 4/13/2012. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CLARENCE HOWARD,

CASE NO. 1:05-cv-00906-AWI-GBC (PC)

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Plaintiff,

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v.

ORDER DENYING PLAINTIFF’S MOTION
TO RECONSIDER ORDER DENYING
MOTION TO COMPEL
Doc. 75

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GRADTILLO, et al.,

ORDER DENYING PLAINTIFF’S MOTION
TO COMPEL

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Defendants.
Doc. 77

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ORDER DENYING PLAINTIFF’S MOTION
TO EXTEND DISCOVERY DEADLINE

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______________________________________/ Doc. 78

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I.

Procedural History

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On June 13, 2005, Plaintiff Clarence Howard (“Plaintiff”), a state prisoner proceeding pro se and

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in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. On April 15, 2010, the

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Court found a cognizable claim against Defendants Bennett, Avila, and Jones (“Defendants”) for

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excessive force, in violation of the Eighth Amendment. Doc. 27. On March 31, 2011, the Court issued

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a discovery and scheduling order, setting a discovery deadline of November 30, 2011. Doc. 50. On

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September 7, 2011, and on October 21, 2011, Plaintiff filed duplicative motions to compel discovery.

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Docs. 56, 59. On November 4, 2011, the Court granted Defendants’ motion to modify scheduling order,

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setting a revised discovery deadline of January 16, 2012, and a revised dispositive motion deadline of

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March 16, 2012. Doc. 64. On November 22, 2011, the Court denied Plaintiff’s motions to compel, with

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leave to submit an amended motion to compel. Doc. 66. On December 7, 2011, Plaintiff filed a motion

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titled “Request to Leave to File Amended Motion to Compel.” Doc. 67. On December 20, 2011, the

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Court denied Plaintiff’s amended motion to compel for failing to meet his burden and as procedurally

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defective. Doc. 68. On January 3, 2012, the Court granted Plaintiff’s motion to modify scheduling order,

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setting a revised discovery deadline of March 16, 2012, and a revised dispositive motion deadline of

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May 16, 2012. Doc. 71. On February 6, 2012, Plaintiff filed a motion to reconsider order denying

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Plaintiff’s motion to compel. Doc. 75. On February 9, 2012, Defendants filed an opposition to Plaintiff’s

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motion to reconsider order denying Plaintiff’s motion to compel. Doc. 76. On March 7, 2012, Plaintiff

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filed a motion to compel. Doc. 77. On March 15, 2012, Plaintiff filed a motion to extend discovery

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deadline. Doc. 78. On March 16, 2012, Defendants filed a motion for summary judgment. Doc. 79.

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II.

Rule 60(b) Motion for Reconsideration

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Federal Rule of Civil Procedure 60(b) governs relief from orders of the district court. The Rule

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permits a district court to relieve a party from a final order or judgment on grounds of: “(1) mistake,

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inadvertence, surprise, or excusable neglect; . . . (3) fraud . . . by an opposing party, . . . or (6) any other

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reason that justifies relief.” Fed. R. Civ. P. 60(b). The motion for reconsideration must be made within

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a reasonable time. Id. Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent manifest

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injustice and is to be utilized only where extraordinary circumstances . . .” exist. Harvest v. Castro, 531

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F.3d 737, 749 (9th Cir. 2008). The moving party “must demonstrate both injury and circumstances

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beyond his control . . . .” Id. Local Rule 230(j) requires Plaintiff to show “what new or different facts

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or circumstances are claimed to exist which did not exist or were not shown upon such prior motion, or

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what other grounds exist for the motion.” “A motion for reconsideration should not be granted, absent

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highly unusual circumstances, unless the district court is presented with newly discovered evidence,

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committed clear error, or if there is an intervening change in the controlling law,” and it “may not be

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used to raise arguments or present evidence for the first time when they could reasonably have been

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raised earlier in the litigation.” Marilyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d

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873, 880 (9th Cir. 2009) (emphasis in original).

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Plaintiff’s motion for reconsideration does not reveal any newly discovered evidence, that the

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Court committed clear error, or that there was an intervening change in the controlling law. The Court

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held that Plaintiff failed to show he submitted discovery requests to Defendants, and failed to set forth

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each discovery request and the response that was in issue. Therefore, the Court Plaintiff’s motion for

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reconsideration is denied.

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III.

Motion to Compel

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A.

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“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s

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claim or defense . . . . Relevant information need not be admissible at the trial if the discovery appears

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reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). The

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responding party is obligated to respond to the interrogatories to the fullest extent possible, Fed. R. Civ.

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P. 33(b)(3), and any objections must be stated with specificity, Fed. R. Civ. P. 33(b)(4). The responding

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party shall use common sense and reason. E.g., Collins v. Wal-Mart Stores, Inc., No. 06-2466-CM-

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DJW, 2008 WL 1924935, *8 (D. Kan. Apr. 30, 2008). A responding party is not generally required to

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conduct extensive research in order to answer an interrogatory, but a reasonable effort to respond must

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be made. L.H. v. Schwarzenegger, No. S-06-2042 LKK GGH, 2007 WL 2781132, *2 (E.D. Cal. Sep.

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21, 2007). Further, the responding party has a duty to supplement any responses if the information

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sought is later obtained or the response provided needs correction. Fed. R. Civ. P. 26(e)(A).

Legal Standard

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If Defendants object to one of Plaintiff’s discovery requests, it is Plaintiff’s burden on his motion

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to compel to demonstrate why the objection is not justified. In general, Plaintiff must inform the Court

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which discovery requests are the subject of his motion to compel, and, for each disputed response,

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inform the Court why the information sought is relevant under Rule 26(b)(1) and why Defendants’

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objections are not justified.

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B.

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In its orders filed on November 22, 2011, and on December 20, 2011, the Court previously

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informed Plaintiff of the requirements necessary to submit a motion to compel. Docs. 66, 68. On

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December 20, 2011, the Court denied Plaintiff’s amended motion to compel for failing to meet his

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burden and as procedurally defective. Doc. 68. In this current motion, Plaintiff still has not met his

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burden on his motion to compel. In this instance, Plaintiff moves to compel the production of responses,

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interrogatories and documents which he asserts that he has served on Defendants. Doc. 77. Plaintiff’s

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motion to compel simply describes what discovery Plaintiff asserts he has requested from Defendants.

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Id.

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Analysis

When bringing a motion to compel discovery responses, the moving party shall set forth each

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discovery request and the response that is at issue. See E.D. Cal. Local Rule 34-250.3(c); E.D. Cal. Local

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Rule 36-250(c). Plaintiff’s motion is procedurally defective because it does not provide Plaintiff’s

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requests for discovery. Plaintiff fails to submit any proof that he has ever submitted a discovery request

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to the Defendants and Plaintiff’s previous motions to compel discovery does not satisfy that requirement.

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Moreover, in Plaintiff’s motion to reconsider order denying motion to compel, Plaintiff states that

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Defendants answered his interrogatories and admissions but failed to turn over all information requested

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in his request for production of documents. Mot. Recons. at 5-6, Doc. 75. However, in his motion to

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reconsider or in his motion to compel, Plaintiff does not specifically list his requests or Defendants’

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responses to his specific requests. See id.; see also Mot. Compel, Doc. 77. Therefore, Plaintiff’s motion

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to compel is denied.

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IV.

Motion to Extend Discovery

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The Court originally established a discovery deadline of November 30, 2011. Doc. 50. the Court

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has twice extended the discovery deadline, from January 16, 2012 to March 16, 2012. Docs. 64, 71. This

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action has been proceeding since June 13, 2005, and Defendants filed a motion for summary judgment

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on March 16, 2012. Docs. 1, 79. Plaintiff does not state good cause to further extend the discovery

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deadline. Fed. R. Civ. P. 16(b)(4); Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087-88

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(9th Cir. 2002).

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V.

Conclusion and Order

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Accordingly, it is HEREBY ORDERED that:

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Plaintiff’s motion to reconsider order denying motion to compel is DENIED;

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2.

Plaintiff’s motion to compel is DENIED; and

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3.

Plaintiff’s motion to further extend the discovery deadline is DENIED.

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IT IS SO ORDERED.

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Dated:
7j8cce

April 13, 2012
UNITED STATES MAGISTRATE JUDGE

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