Rasberry v. Trevino, et al.

Filing 54

ORDER Denying 45 Defendants' Motion to Compel, signed by Magistrate Judge Gary S. Austin on 3/6/12. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES RASBERRY,

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Plaintiff,

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vs.
A. TREVINO, et al.,

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Defendants.

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1:08-cv-01767-AWI-GSA-PC
ORDER DENYING DEFENDANTS’
MOTION TO COMPEL
(Doc. 45.)
ORDER CLOSING DISCOVERY

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I.

RELEVANT PROCEDURAL HISTORY

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James Rasberry ("Plaintiff") is a state prisoner proceeding pro se with this civil rights action

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pursuant to 42 U.S.C. § 1983. This action now proceeds on the First Amended Complaint filed by

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Plaintiff on March 2, 2010, against defendants Correctional Officer (“C/O”) A. Trevino and C/O L.

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Miguel (“Defendants”) for excessive force in violation of the Eighth Amendment, and against

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defendant C/O A. Trevino for violation of the Equal Protection Clause. (Doc. 25.)

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On December 7, 2010, the Court issued a Discovery/Scheduling Order establishing a deadline

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of August 7, 2011, for the parties to complete discovery, including motions to compel. (Doc. 36.)

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On August 8, 2011, Defendants filed a motion to compel production of documents. (Doc. 45.) On

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September 1, 2011, Plaintiff filed an opposition. (Doc. 47.) On September 6, 2011, Defendants filed

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a reply. (Doc. 48.) Defendants’ motion to compel is now before the Court.
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II.

MOTION TO COMPEL PRODUCTION OF DOCUMENTS

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A.

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Pursuant to Rule 34(a) of the Federal Rules of Civil Procedure, “[a] party may serve on any

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other party a request within the scope of Rule 26(b), to produce and permit the requesting party . . .

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to inspect, copy, test, or sample . . . any designated documents or electronically stored information

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. . . in the responding party's possession, custody or control.” Fed. R. Civ. P. 34(a)(1)(A).

Rules 34 and 37

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Pursuant to Rule 37(a) of the Federal Rules of Civil Procedure, a party propounding discovery

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may seek an order compelling disclosure when an opposing party has failed to respond or has

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provided evasive or incomplete responses. Fed. R. Civ. P. 37(a)(3)(B). "[A]n evasive or incomplete

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disclosure, answer, or response is to be treated as a failure to disclose, answer, or respond.” Fed. R.

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Civ. P. 37(a)(4). It is well established that a failure to object to discovery requests within the time

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required constitutes a waiver of any objection.” Richmark Corp. v. Timber Falling Consultants, 959

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F.2d 1468, 1473 (9th Cir.1992) (citing Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir.1981)). The

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moving party bears the burden of demonstrating “actual and substantial prejudice” from the denial

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of discovery. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002) (citations omitted.).

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B.

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Defendants seek to compel responses by Plaintiff to their first set of requests for production

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of documents propounded on June 22, 2011. However, Defendants’ motion is untimely. Pursuant

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to the Court’s scheduling order of December 7, 2010, the deadline for the parties to complete

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discovery, including motions to compel, was August 7, 2011, and Defendants did not file their motion

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to compel until August 8, 2011. (Docs. 36, 45.) Defendants did not request an extension of time or

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an extension of the discovery deadline.1 Therefore, Defendants’ motion to compel shall be denied

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as untimely.

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///

Defendants’ Motion

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W hen an act may or must be done within a specified time, the court may, for good cause, extend the time.
Fed. R. Civ. P. 6(b). Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P. 16(b),
and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th
Cir. 1992).

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III.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

Defendants’ motion to compel, filed on August 8, 2011, is DENIED as untimely; and

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2.

Discovery in this action is now closed.

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IT IS SO ORDERED.

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Dated:
6i0kij

March 6, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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