Bender v. Sullivan et al

Filing 54

ORDER Denying Plaintiff's Motions To Compel As Untimely (Docs. 49 & 50 ), signed by District Judge Lawrence J. O'Neill on 1/9/2012. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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FLOYD EUGENE BENDER,

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CASE NO. 1:09-cv–00575-LJO-GBC (PC)

Plaintiff,

ORDER DENYING PLAINTIFF’S MOTIONS TO
COMPEL AS UNTIMELY

v.
Docs. 49 & 50

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W.J. SULLIVAN, et al.,
Defendants.
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On March 30, 2009, Plaintiff, a state prisoner proceeding pro se and in forma pauperis, filed

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this civil rights action pursuant to 42 U.S.C. § 1983. On April 21, 2010, the Court issued a discovery

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and scheduling order, setting a discovery deadline of December 21, 2010. Doc. 21. On December

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20, 2010, the Court granted Defendants’ motion for extension of time to take Plaintiff’s deposition

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on January 21, 2011. Doc. 30. On February 3, 2011, the Court granted Defendants’ motion for

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extension of time to take Plaintiff’s deposition on February 28, 2011. Doc. 35. On May 23, 2011,

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the Court granted Defendants’ motion to compel Plaintiff’s deposition and ordered sanctions against

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Plaintiff for failing to appear for his deposition. Doc. 40. On June 24, 2011, Defendants took

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Plaintiff’s deposition. Doc. 42. On July 18, 2011, Plaintiff mailed interrogatories and requests for

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productions of documents to Defendants. Docs. 49 & 50. On July 31, 2011, Defendants received

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Plaintiff’s discovery requests. Defs. Resp. Ex. A. On August 5, 2011, Defendants filed a motion for

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summary judgment. Doc. 41. On September 9, 2011, Plaintiff filed an opposition to the motion for

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summary judgment and filed two motions to compel. Docs. 48, 49, 50. On September 26, 2011,

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Defendants filed an opposition to Plaintiff’s motions to compel. Doc. 52.
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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. 21. 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 December 21, 2010. Id.

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In this case, the Court extended the deadline to take Plaintiff’s deposition, ordered sanctions

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against Plaintiff for failing to appear for his deposition, and set the dispositive motion deadline for

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forty-five days following Plaintiff’s deposition. Docs. 30, 35, 40. The discovery deadline remained

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December 21, 2010, and Plaintiff did not move to extend the discovery deadline. Plaintiff mailed his

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discovery requests approximately seven months after the discovery deadline had passed.

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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 motions to compel are

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

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Accordingly, it is HEREBY ORDERED that Plaintiff’s motions to compel, filed September
9, 2011, are DENIED as untimely.

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IT IS SO ORDERED.

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Dated:
0jh02o

January 9, 2012
UNITED STATES MAGISTRATE JUDGE

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