Hasan v. Johnson

Filing 39

ORDER GRANTING Defendants' 38 Motion to Strike; ORDER STRIKING Plaintiff's 34 Motion to Compel as Duplicative; ORDER DENYING Plaintiff's 34 Motion to Propound further Interrogatories, without Prejudice signed by Magistrate Judge Gary S. Austin on 11/8/2011. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAWAAD HASAN, 12 Plaintiff, 13 vs. 14 B. JOHNSON, et al., 15 16 17 Defendants. 18 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 1:08-cv-00381-GSA-PC ORDER GRANTING DEFENDANTS’ MOTION TO STRIKE (Doc. 38.) ORDER STRIKING PLAINTIFF’S MOTION TO COMPEL AS DUPLICATIVE (Doc. 34.) ORDER DENYING PLAINTIFF’S MOTION TO PROPOUND FURTHER INTERROGATORIES, WITHOUT PREJUDICE (Doc. 34.) 19 20 I. RELEVANT PROCEDURAL HISTORY 21 Jawaad Hasan ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with 22 this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s original 23 Complaint filed on March 17, 2008, against defendant Johnson (“Defendant”) for use of excessive 24 physical force in violation of the Eighth Amendment. (Doc. 1.) This case is presently in the 25 discovery phase. 26 On November 7, 2011, Defendant filed a motion to strike Plaintiff’s motion to compel, filed 27 on October 21, 2011, as duplicative of Plaintiff’s motion to compel filed on July 6, 2011. (Doc. 38.) 28 /// 1 1 2 II. DEFENDANT’S MOTION TO STRIKE Defendant argues that Plaintiff’s motion to compel, filed on October 21, 2011, should be 3 stricken because it is identical to Plaintiff’s motion to compel filed on July 6, 2011. Defendant 4 notes that on July 28, 2011, he filed an opposition to Plaintiff’s July 6, 2011 motion to compel, 5 and the motion is still pending. 6 The Court has examined Plaintiff’s two motions to compel, filed on July 6, 2011 and 7 October 21, 2011, and finds that each of the two-page motions is identical to the other, except for 8 Plaintiff’s dated signature. Both motions are entitled exactly the same, “Motion For An Order 9 Compelling Discovery Pursuant to Rule (S) 26 (b) 30 (b) 33.31 And 37 (a)” and contain identical 10 typewritten verbage. The only discernible difference between the two motions is in Plaintiff’s 11 signature, which varies in some respects, and the date of Plaintiff’s signature. Based on these 12 facts, the Court agrees that the October 21, 2011 motion to compel is duplicative of the July 6, 13 2001 motion to compel. Therefore, Defendant’s motion to strike shall be granted. 14 Plaintiff’s Motion to Propound Further Interrogatories 15 The Court notes that, together with the October 21, 2011 motion to compel, Plaintiff filed 16 a motion for leave to propound further interrogatories. (Doc. 34 at 3-4.)1 Plaintiff requests leave 17 to propound a second set of interrogatories, containing twenty-five interrogatories, upon 18 Defendant, “in order to present a complete and competent case for trial.” (Doc. 34 at 3:24-25.) 19 Plaintiff argues that a second set of interrogatories is necessary because “Defendant 20 circumvent[ed] the first set of interrogatories,” and because the Court has not ruled on Plaintiff’s 21 motion to compel responses to the first set of interrogatories. (Doc. 34 at 3-4.) 22 Pursuant to Rule 33(a) of the Federal Rules of Civil Procedure, “[u]nless otherwise 23 stipulated or ordered by the court, a party may serve on any other party no more than 25 written 24 interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be 25 granted to the extent consistent with Rule 26(b)(2).” Fed. R. Civ. P. 33(a). Rule 26(b)(2) 26 1 27 28 Attached directly behind Plaintiff’ October 21, 2011 motion to compel, within Document 34 of the Court’s record, is Plaintiff’s motion for leave to propound a second set of interrogatories upon Defendant, entitled “Rule 33 Interrogatories Second Set.” (Doc. 34 at 3-4.) 2 1 provides that “[b]y order, the court may alter the limits in these rules on the number of . . . 2 interrogatories.” Fed. R. Civ. P. 26(b)(2)(A). 3 Plaintiff’s evidence shows that on June 29, 2011, Defendant responded to thirty 4 interrogatories from Plaintiff’s First Set of Interrogatories. (Doc. 34 at 8-21.) Thus, Plaintiff has 5 already exceeded the limit of twenty-five interrogatories allowed by Rule 33(a). Plaintiff has not 6 shown good cause for the Court to grant leave for further interrogatories at this time. Plaintiff has 7 not sufficiently explained why a second set of interrogatories is necessary because his motion to 8 compel is pending, or how further interrogatories will enable him “to present a complete and 9 competent case for trial.” Therefore, Plaintiff’s motion to propound further interrogatories shall 10 be denied, without prejudice . 11 IV. CONCLUSION 12 Based on the foregoing, IT IS HEREBY ORDERED that: 13 1. Defendant’s motion to strike, filed on November 7, 2011, is GRANTED; 14 2. Plaintiff’s motion to compel, filed on October 21, 2011, is STRICKEN from the 15 court’s record as duplicative of Plaintiff’s motion to compel filed on July 6, 2011; 16 and 17 3. 18 Plaintiff’s motion for leave to propound further interrogatories, filed on October 21, 2011, is DENIED without prejudice. 19 20 21 IT IS SO ORDERED. Dated: 6i0kij November 8, 2011 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 3

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