Jones et al v. California Department of Corrections et al

Filing 68

ORDER DENYING 61 and 66 Motion to Compel signed by Magistrate Judge Gerald B. Cohn on 06/14/2012. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARK JONES,

CASE NO. 1:08-cv-00069-LJO-GBC (PC)

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Plaintiff,

ORDER DENYING PLAINTIFF’S MOTIONS TO
COMPEL

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v.
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Docs. 61, 66
CALIFORNIA DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.
/

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I. Procedural History

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On January 14, 2008, Plaintiff Mark Jones (“Plaintiff”), a state prisoner proceeding pro se

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and in forma pauperis, filed this civil rights action jointly with his wife, Christine Jones, pursuant

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to 42 U.S.C. § 1983. Doc. 1. On January 31, 2011, the Court severed the case and ordered Plaintiff’s

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wife, Christine Jones, to file a separate action. Doc. 38.1 On May 13, 2011, the Court adopted

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findings and recommendations and ordered the case to proceed on a cognizable First Amendment

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retaliation claim against Defendant Couch. Doc. 44. On September 13, 2011, the Court issued a

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discovery and scheduling order, setting a discovery deadline of May 13, 2012. Doc. 50. On April 11,

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2012, Plaintiff filed a “Motion for Discovery Plaintiff’s Interrogatories.” Doc. 61. On April 25, 2012,

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Defendant filed an opposition to Plaintiff’s motions to compel. Doc. 66. On May 10, 2012,

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Defendant filed a motion for extension of time to take the deposition of Christine Jones. Doc. 64.

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On April 22, 2011, the Court dismissed the separate action filed by Plaintiff’s wife, for failure to state a
claim. Jones v. California Department of Corrections, No. 1:08-cv-01383-LJO-GBC, aff’d, No. 11-16245 (9th Cir.
May 25, 2012).
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On May 11, 2012, the Court granted Defendant’s motion for extension of time to take the deposition

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of Christine Jones. Doc. 65. On May 24, 2012, Plaintiff filed a motion to compel discovery and

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request to add interrogatory. Doc. 66. On June 8, 2012, Defendant filed an opposition to Plaintiff’s

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motion to compel and withdrew his request for extension of time to depose Christine Jones. Doc.

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67.

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II. Analysis

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In the discovery and scheduling order, the Court ordered the parties to serve all discovery

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requests at least forty-five days before the discovery deadline. Doc. 50. Additionally, the Court

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ordered that the parties complete all discovery, including the filing of motions to compel, by the

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discovery deadline of May 13, 2012. Id.

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In this case, the Court extended the deadline to take the deposition of Christine Jones, and

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since that time, Defendant has withdrawn his request for extension of time. Docs. 65, 67. The

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discovery deadline remained May 13, 2012, and Plaintiff did not move to extend the discovery

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deadline.

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Despite his pro se status, Plaintiff is not entitled to any latitude for the untimeliness. See

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Fingerhut Corp. v. Ackra Direct Mktg. Corp., 86 F.3d 852, 856–57 (8th Cir. 1996) (stating that pro

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se representation does not excuse a litigant from complying with court orders); Jourdan v. Jabe, 951

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F.2d 108, 109 (6th Cir. 1991) (explaining that although courts should liberally construe pro se

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plaintiffs’ legal arguments and strictly construe their compliance with procedural requirements); see

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also Carter v. Comm’r, 784 F.2d 1006, 1008–09 (9th Cir.1986) (noting that pro se plaintiffs must

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follow the rules of the court). Therefore, Plaintiff’s discovery requests and his second motion to

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compel are untimely. Fed. R. Civ. P. 16(b).

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In Plaintiff’s first motion for discovery, Plaintiff does not state that he made the requests prior

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to filing a motion to compel. Mot. Compel at 1, 4, Doc. 61. Under Rule 37 of the Federal Rules of

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Civil Procedure, the court may order a party to provide further responses to “an evasive or

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incomplete disclosure, answer, or response.” See Fed. R. Civ. P. 37(a)(3). Generally, if the

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responding party objects to a discovery request, the party moving to compel bears the burden of

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demonstrating why the objections are not justified. E.g., Grabek v. Dickinson, 2012 WL 113799, at
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*1 (E.D. Cal. Jan. 13, 2012); Womack v. Virga, 2011 WL 6703958, at *3 (E.D. Cal. Dec. 21, 2011);

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Mitchell v. Felker, 2010 WL 3835765, at *2 (E.D. Cal. Sep. 29, 2010); Ellis v. Cambra, 2008 WL

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860523, at *4 (E.D. Cal. Mar. 27, 2008). This requires the moving party to inform the Court which

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

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information sought is relevant and why the responding party’s objections are not meritorious.

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Grabek, 2012 WL 113799, at *1; Womack, 2011 WL 6703958, at *3; Mitchell, 2010 WL 3835765,

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at *2; Ellis, 2008 WL 860523, at *4.

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In response to Plaintiff’s first motion to compel, Defendant stated that Plaintiff served the

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discovery to Defendant simultaneously with filing the motion to compel. See Def. Opp’n at 1-2, Doc.

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63. Thus, Plaintiff did not follow the proper procedure to file a motion to compel.

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III. Conclusion

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The Court finds that Plaintiff did not demonstrate that he submitted a request for discovery

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from Defendant prior to filing his first motion to compel, and Plaintiff’s discovery requests and

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second motion to compel are untimely.

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Accordingly, it is HEREBY ORDERED that Plaintiff’s motions to compel, filed April 11,
2012, and May 24, 2012, are DENIED.

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IT IS SO ORDERED.

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Dated:
7j8cce

June 14, 2012
UNITED STATES MAGISTRATE JUDGE

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