Cranford v. Nickels

Filing 41

ORDER STRIKING 35 Motion to Compel; ORDER DISCHARGING 36 Order to Show Cause, signed by Magistrate Judge Jennifer L. Thurston on 08/15/2011. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ARCHIE CRANFORD,

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Plaintiff,

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Case No. 1:07-cv-01812 JLT (PC)
ORDER STRIKING PLAINTIFF’S
MOTION TO COMPEL

vs.
(Doc. 35)

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CHRISTINA NICKELS,

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ORDER DISCHARGING ORDER TO
SHOW CAUSE

Defendant.
______________________________/

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(Doc. 36)

Plaintiff is a civil detainee proceeding pro se and in forma pauperis with a civil rights action

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pursuant to 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s motion to compel discovery.

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I.

BACKGROUND

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Plaintiff filed the instant motion to compel on June 9, 2011. (Doc. 35.) Therein, Plaintiff seeks

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responses to the interrogatories and admissions he filed in 2010. (Id. at 2.) In addition, Plaintiff seeks

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the production of various documents, including: (1) all patients’ rights complaints prior to the filing of

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this action; (2) all EKGs taken on the afternoon of Plaintiff’s heart attack in 2006; and (3) all reports

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filed by R.N. Charles. (Id.)

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Defendant failed to file an opposition or statement of no opposition to the motion to compel in

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accordance with Local Rule 230(l). Accordingly, on July 13, 2011, the Court issued an order to show

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cause. (Doc. 36.) In response, Defendant explained that she did not file an opposition to the motion

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because it was her belief that the motion was filed in error. (Doc. 37 at 2.) Defendant maintained that
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she had never received any discovery requests from Plaintiff in this case. (Id.) Defendant opined that

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Plaintiff may have actually intended to file the instant motion in a related case, Cranford v. Salber, No.

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08-cv-0063 JLT (PC), in which Plaintiff did propound discovery. (Id.)

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On August 4, 2011, Plaintiff filed his own response to the Court’s July 13, 2011 order to show

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cause. (Doc. 40.) Therein, Plaintiff simply requests responses to the following questions: (1) Did

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Defendant at any time say that only Mexicans could receive aid from her? (2) Did Defendant refuse to

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provide Plaintiff medication? (3) Did Plaintiff at any time live on unit 2. (See id. at 1.) Plaintiff does

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not address Defendant’s assertion that Plaintiff filed the instant motion in error.

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II.

DISCUSSION

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Plaintiff has not shown that he actually served the discovery requests that are now the subject of

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the instant motion to compel. In fact, it appears on its face that such would have been highly unlikely.

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Plaintiff maintains in his motion that he filed interrogatories and requests for admissions sometime in

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2010. (Doc. 35 at 2.) However, discovery did not commence in this case until January 18, 2011. (Doc.

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23.) Thus, Plaintiff’s motion to compel must be stricken as procedurally improper. See, e.g., Brooks

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v. Alameida, No. CIV S-03-2343 JAM EFB P, 2009 U.S. Dist. LEXIS 42217, at *3-4 (E.D. Cal. Apr.

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30, 2009) (declining to address motion to compel as to certain defendants who had not been properly

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served the discovery requests in dispute).

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III.

CONCLUSION

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Accordingly, it is HEREBY ORDERED that:

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Plaintiff’s June 9, 2011 motion to compel (Doc. 35) is STRICKEN; and

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2.

The order to show cause issued July 13, 2011 (Doc. 36) is DISCHARGED.

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IT IS SO ORDERED.

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Dated: August 15, 2011
9j7khi

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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