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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAWAAD HASAN,

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Plaintiff,
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vs.
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B. JOHNSON, et al.,
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Defendants.

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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.)

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I.

RELEVANT PROCEDURAL HISTORY

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Jawaad Hasan ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with

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this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s original

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Complaint filed on March 17, 2008, against defendant Johnson (“Defendant”) for use of excessive

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physical force in violation of the Eighth Amendment. (Doc. 1.) This case is presently in the

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discovery phase.

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On November 7, 2011, Defendant filed a motion to strike Plaintiff’s motion to compel, filed

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on October 21, 2011, as duplicative of Plaintiff’s motion to compel filed on July 6, 2011. (Doc. 38.)

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II.

DEFENDANT’S MOTION TO STRIKE
Defendant argues that Plaintiff’s motion to compel, filed on October 21, 2011, should be

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stricken because it is identical to Plaintiff’s motion to compel filed on July 6, 2011. Defendant

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notes that on July 28, 2011, he filed an opposition to Plaintiff’s July 6, 2011 motion to compel,

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and the motion is still pending.

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The Court has examined Plaintiff’s two motions to compel, filed on July 6, 2011 and

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October 21, 2011, and finds that each of the two-page motions is identical to the other, except for

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Plaintiff’s dated signature. Both motions are entitled exactly the same, “Motion For An Order

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Compelling Discovery Pursuant to Rule (S) 26 (b) 30 (b) 33.31 And 37 (a)” and contain identical

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typewritten verbage. The only discernible difference between the two motions is in Plaintiff’s

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signature, which varies in some respects, and the date of Plaintiff’s signature. Based on these

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facts, the Court agrees that the October 21, 2011 motion to compel is duplicative of the July 6,

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2001 motion to compel. Therefore, Defendant’s motion to strike shall be granted.

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Plaintiff’s Motion to Propound Further Interrogatories

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The Court notes that, together with the October 21, 2011 motion to compel, Plaintiff filed

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a motion for leave to propound further interrogatories. (Doc. 34 at 3-4.)1 Plaintiff requests leave

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to propound a second set of interrogatories, containing twenty-five interrogatories, upon

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Defendant, “in order to present a complete and competent case for trial.” (Doc. 34 at 3:24-25.)

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Plaintiff argues that a second set of interrogatories is necessary because “Defendant

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circumvent[ed] the first set of interrogatories,” and because the Court has not ruled on Plaintiff’s

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motion to compel responses to the first set of interrogatories. (Doc. 34 at 3-4.)

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Pursuant to Rule 33(a) of the Federal Rules of Civil Procedure, “[u]nless otherwise

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stipulated or ordered by the court, a party may serve on any other party no more than 25 written

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interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be

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granted to the extent consistent with Rule 26(b)(2).” Fed. R. Civ. P. 33(a). Rule 26(b)(2)

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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.)

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provides that “[b]y order, the court may alter the limits in these rules on the number of . . .

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interrogatories.” Fed. R. Civ. P. 26(b)(2)(A).

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Plaintiff’s evidence shows that on June 29, 2011, Defendant responded to thirty

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interrogatories from Plaintiff’s First Set of Interrogatories. (Doc. 34 at 8-21.) Thus, Plaintiff has

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already exceeded the limit of twenty-five interrogatories allowed by Rule 33(a). Plaintiff has not

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shown good cause for the Court to grant leave for further interrogatories at this time. Plaintiff has

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not sufficiently explained why a second set of interrogatories is necessary because his motion to

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compel is pending, or how further interrogatories will enable him “to present a complete and

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competent case for trial.” Therefore, Plaintiff’s motion to propound further interrogatories shall

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be denied, without prejudice .

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IV. CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

Defendant’s motion to strike, filed on November 7, 2011, is GRANTED;

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2.

Plaintiff’s motion to compel, filed on October 21, 2011, is STRICKEN from the

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court’s record as duplicative of Plaintiff’s motion to compel filed on July 6, 2011;

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and

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3.

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Plaintiff’s motion for leave to propound further interrogatories, filed on October
21, 2011, is DENIED without prejudice.

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IT IS SO ORDERED.
Dated:
6i0kij

November 8, 2011

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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