Harrison v. Adams, et al

Filing 237

ORDER Denying 228 229 Motions to Compel signed by Magistrate Judge Michael J. Seng on 05/15/2015. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL D. HARRISON,

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Plaintiff,

Case No. 1:08-cv-1065-AWI-MJS (PC)
ORDER DENYING PLAINTIFF’S MOTION
TO COMPEL (ECF Nos. 228 & 229)

v.

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T. MOORE, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
rights action brought pursuant to 28 U.S.C. § 1983. The action proceeds on Plaintiff’s

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Eighth Amendment claims against numerous defendants. (ECF No. 160.)
On March 23, 2015, Plaintiff moved to compel production of a declaration from

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Defendant J. Kim in support of Defendants’ motion for summary judgment. (ECF Nos.

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228 & 229.) Defendants opposed the motion (ECF No. 230) and Plaintiff objected to

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Defendants’ opposition. (ECF No. 231.)

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Plaintiff has moved to compel production of a declaration from Defendant Kim
because he argues that it is needed to “proceed with litigation” (ECF No. 229, at 1) and

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there is “not enough evidence for [Kim] to obtain” summary judgment without the
declaration. (ECF No. 231, at 1.)

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Defendants point out that the motion to compel, filed eight months after the close

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of discovery, is untimely. They also argue that no rule required Kim to make or submit a

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declaration in support of his motion for summary judgment, and because of his

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deployment to Afghanistan, he has done neither. Plaintiff cannot compel production of a
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document that does not exist. Moreover, Defendants submit, it is for the Court, not

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Harrison, to decide whether sufficient evidence exists, without a declaration, to grant

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summary judgment in favor of Kim. (ECF No. 230.)

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The Court finds the motion to compel to be unauthorized and unavailing.
Discovery in this case has been closed since July 2014. (ECF No. 169.) Plaintiff’s
motion to compel is untimely. He has presented no good cause for allowing late filing or

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for modification of the Scheduling Order. Although other discovery devices, if properly
pursued, might have produced evidence from Defendant Kim, Plaintiff has identified no

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procedural basis for requiring Kim to submit a declaration at Plaintiff’s request. No such

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declaration being in existence, none can be produced even if Plaintiff had properly and

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timely requested its production.

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Accordingly, Plaintiff’s motion to compel (ECF Nos. 228 & 229) is DENIED.

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IT IS SO ORDERED.
Dated:

May 15, 2015

/s/

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UNITED STATES MAGISTRATE JUDGE

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Michael J. Seng

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