Scott v. Palmer et al

Filing 47

ORDER (1)Denying Motion to Compel and for Sanctions; (2) Granting Motion for Re-Service of Summary Judgment Motion and Denying Motion for Sanctions; (3) Requiring Defendants to Re-Serve Motion; (4) and Requiring Plaintiff to Comply With Order Filed September 2, 2011, 44 , 45 , 46 , signed by Magistrate Judge Sheila K. Oberto on 9/18/11. 45-Day Deadline to Respond to September 2, 2011 44 . (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FLOYD SCOTT,

CASE NO. 1:09-cv-01329-AWI-SKO PC

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Plaintiff,

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ORDER (1) DENYING MOTION TO COMPEL
AND FOR SANCTIONS; (2) GRANTING
MOTION FOR RE-SERVICE OF SUMMARY
JUDGMENT MOTION AND DENYING
MOTION FOR SANCTIONS; (3) REQUIRING
DEFENDANTS TO RE-SERVE MOTION; (4)
AND REQUIRING PLAINTIFF TO COMPLY
WITH ORDER FILED SEPTEMBER 2, 2011

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(Docs. 44, 45, and 46)

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Deadline to re-serve motion:

5 days

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Deadline to comply with order
of September 2, 2011:

45 days

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v.
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J. PALMER, et al.,
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Defendants.

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Plaintiff Floyd Scott, a state prisoner proceeding pro se, filed this civil rights action pursuant

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to 42 U.S.C. § 1983 on July 29, 2009. This action is proceeding against Defendants Palmer, Rivera,

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and Lopez for excessive force, in violation of the Eighth Amendment of the United States

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Constitution.

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On August 30, 2011, Defendants filed a motion for summary judgment and on August 31,

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2011, Defendants filed a motion seeking either a stay of discovery pending resolution of their motion

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for summary judgment or a thirty-day extension of time to respond to Plaintiff’s discovery requests

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if their motion to stay is denied. On September 2, 2011, the Court (1) granted the motion to stay in

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part, (2) stayed discovery pending Plaintiff’s response to Defendants’ motions to stay and for

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summary judgment, and (3) ordered Plaintiff to file a response to Defendants’ motion to stay and to
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file either a response to Defendants’ motion for summary judgment on the merits or a Rule 56(d)

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motion, within forty-five days.

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On September 9, 2011, Plaintiff filed a motion seeking service of Defendants’ motion for

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summary judgment and for sanctions, and a motion to compel discovery responses and for sanctions.

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In light of the Court’s order of September 2, 2011, Plaintiff’s motion to compel discovery responses

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is denied. Plaintiff contends that he did not receive the motion for summary judgment. Therefore,

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Plaintiff’s motion for re-service of the motion is granted.

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Plaintiff’s motion for sanctions based on the failure to timely serve discovery responses is

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denied. Fed. R. Civ. P. 37(d). Plaintiff’s motion is defective in that it was prematurely filed and

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furthermore, Defendants have been relieved of their obligation to respond.1 Plaintiff’s motion for

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sanctions for failing to serve the motion for summary judgment is also denied. Chambers v.

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NASCO, Inc., 501 U.S. 32, 43-45, 111 S.Ct. 2123 (1991) (courts have inherent power to sanction

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litigants). Defendants are obligated to serve their filings on Plaintiff and they submitted the requisite

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proof of service with their motion. There is no support in the record for Plaintiff’s accusation that

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Defendants intentionally failed to serve their motion on him. Chambers, 501 U.S. at 55 (a finding

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of bad faith required).

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Accordingly, the Court HEREBY ORDERS as follows:

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Plaintiff’s motion to compel discovery responses and for sanctions is DENIED;

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2.

Plaintiff’s motion for re-service of the motion for summary judgment is GRANTED,

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but his motion for sanctions is DENIED;

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3.

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Defendants shall re-serve their motion for summary judgment on Plaintiff within five
(5) days from the date of service of this order; and

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As set forth in the order of September 2, 2011, Defendants’ responses were not due until September 6,
2011. Plaintiff’s motion to compel was served on September 5, 2011.

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4.

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Within forty-five (45) days from the date of service of this order, Plaintiff must
comply with the terms of the order filed on September 2, 2011.

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IT IS SO ORDERED.

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Dated:
ie14hj

September 18, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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