Rosenblum v. Ellis, et al

Filing 112

ORDER DENYING Plaintiff's Motion to Compel Further Responses to Interrogatories; ORDER DENYING Plaintiff's Motion to Extend Discovery; ORDER CLOSING Discovery; ORDER REINSTATING Defendant's Motion for Summary Judgment on Court's C alendar 104 ; ORDER GRANTING Plaintiff's Motion to Extend Time to Respond to Motion for Summary Judgment 109 ; THIRTY DAY Deadline for Plaintiff to File a Response to Defendant's Motion for Summary Judgment, signed by Magistrate Judge Gary S. Austin on 4/9/12. (Hellings, J)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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PHILLIP JON ROSENBLUM,

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Plaintiff,

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1:05-cv-01473-LJO-GSA (PC)
ORDER DENYING PLAINTIFF’S MOTION
TO COMPEL FURTHER RESPONSES TO
INTERROGATORIES

vs.
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ORDER DENYING PLAINTIFF’S MOTION
TO EXTEND DISCOVERY
C/O ELLIS, et al.,
ORDER CLOSING DISCOVERY

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Defendants.

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ORDER REINSTATING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT ON
COURT’S CALENDAR
(Doc. 104.)
ORDER GRANTING PLAINTIFF’S MOTION
TO EXTEND TIME TO RESPOND TO
MOTION FOR SUMMARY JUDGMENT
(Doc. 109.)

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THIRTY DAY DEADLINE FOR PLAINTIFF
TO FILE A RESPONSE TO DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT

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________________________________/

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Plaintiff is a former state prisoner proceeding pro se and in forma pauperis in this civil

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rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action

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on November 21, 2005. (Doc. 1.) This case now proceeds on the First Amended Complaint filed

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by Plaintiff on July 20, 2010, against defendant Correctional Officer Ellis (“Defendant”) for failure

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to protect Plaintiff in violation of the Eighth Amendment.1 (Doc. 62.)

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On February 29, 2011, Plaintiff filed a motion to extend the discovery deadline in this

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action, to compel Defendant to respond to Plaintiff’s interrogatories, and to extend time for

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Plaintiff to file an opposition to Defendant’s motion for summary judgment. (Doc. 109.) On

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March 5, 2012, Defendant filed an opposition. (Doc. 110.) Plaintiff did not file a reply to the

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opposition. Plaintiff’s motion is now before the Court.

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II.

MOTION TO COMPEL

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Pursuant to Rule 37(a), a party propounding discovery may seek an order compelling

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disclosure when an opposing party has failed to respond or has provided evasive or incomplete

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responses. Fed. R. Civ. P. 37(a)(2)(3). An evasive or incomplete disclosure, answer, or response

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is to be treated as a failure to disclose, answer, or respond.” Fed. R. Civ. P. 37(a)(3). The moving

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party bears the burden of demonstrating “actual and substantial prejudice” from the denial of

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discovery. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002) (citations omitted.).

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A.

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Plaintiff seeks an order compelling Defendant to answer his interrogatories. Plaintiff

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declares under penalty of perjury that Defendant “declined to answer Plaintiff’s discovery requests,

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absent a court order.” (Motion, Doc. 109 at 2 ¶3.)

Plaintiff’s Motion

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B.

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In opposition, Defendant argues that he fully responded to each of Plaintiff’s discovery

Defendant’s Opposition

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requests.

Defendant submits as evidence copies of Plaintiff’s seven interrogatories and

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Defendant’s responses dated February 27, 2012. (Opp’n, Doc. 110, Exh. A, C.)

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On October 28, 2010, the Court dismissed all other claims and defendants from this action, based on
Plaintiff's failure to state a claim. (Doc. 66.)

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C.

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Plaintiff has not offered any evidence, except his statement that Defendant “declined to

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answer,” demonstrating that Defendant’s responses to Plaintiff’s interrogatories were deficient,

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whereas Defendant has submitted evidence showing that he responded to each of Plaintiff’s seven

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interrogatories. (Opp’n, Exh. C, Doc. 110-4). While the evidence shows that Defendant raised

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objections to most of Plaintiff’s interrogatories, Defendant also made substantive responses to each

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of the questions asked by Plaintiff. Id.2 Plaintiff did not address Defendant’s individual responses

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l in his motion to compel. As discussed above, the moving party bears the burden of demonstrating

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“actual and substantial prejudice” from the denial of discovery. See Hallett, 296 F.3d at 751.

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Plaintiff has not met his burden, and his argument fails. Therefore, Plaintiff’s motion to compel

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shall be denied.

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III.

Discussion

PLAINTIFF’S MOTIONS TO EXTEND TIME

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Plaintiff requests an extension of the April 6, 2012 discovery deadline in this action

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established by the Court’s order of February 3, 2012. (Doc. 108.) Modification of a scheduling

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order requires a showing of good cause. Fed. R. Civ. P. 16(b). Plaintiff seeks an extension of the

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discovery deadline to allow time for the Court to compel Defendant to respond further to Plaintiff’s

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interrogatories. In light of the Court’s decision to deny Plaintiff’s motion to compel, there is no

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good cause to extend the discovery phase of this action. The parties have now completed

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discovery. Therefore, Plaintiff’s motion to extend the discovery deadline shall be denied, and

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discovery in this action is closed.

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Plaintiff also requests an extension of time to respond to Defendant’s motion for summary

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judgment. Good cause appearing, Plaintiff shall be granted thirty days from the date of service of

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this order in which to file a response to Defendant’s motion for summary judgment.

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E.g., “RESPONSE TO INTERROGATORY NO. 2: Objection: Responding party objects to the
interrogatory as vague, ambiguous, overly broad, and unintelligible as to the phrase ‘the matter.’ W ithout waiving
the objection, responding party states that all of the information which is responsive to the interrogatory is set forth
in the CDCR Crime/Incident Reports that are attached to this response as Exs. A-G.” (Opp’n, Exh. C, Doc. 110-4 at
3:7-11.)

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III. CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s motion to compel is DENIED;

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2.

Plaintiff’s motion for extension of the discovery deadline in this action is DENIED;

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3.

Discovery in this action is CLOSED;

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4.

Defendant’s motion for summary judgment, filed on December 22, 2011, is

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REINSTATED on the Court’s calendar;

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5.

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Plaintiff’s motion for extension of time to file a response to Defendant’ motion for
summary judgment is GRANTED;

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6.

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Within thirty days from the date of service of this order, Plaintiff shall file a
response to Defendant’s motion for summary judgment; and

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Plaintiff’s failure to comply with this order shall result in a recommendation that

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this action be dismissed, with prejudice, for Plaintiff’s failure to prosecute this

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action.

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IT IS SO ORDERED.

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Dated:
6i0kij

April 9, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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