Alonso-Prieto v. Pierce, et al.

Filing 58

ORDER Denying 57 Plaintiff's Motion for Miscellaneous Relief, signed by Magistrate Judge Michael J. Seng on 5/9/14. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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RAUL ERNEST ALONSO-PRIETO,
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Plaintiff,
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Case No. 1:11-cv-00024-AWI-MJS (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR MISCELLANEOUS RELIEF

v.
(ECF No. 57)

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B. PIERCE, et al.,
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Defendants.
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Plaintiff Raul Ernest Alonso-Prieto is a former federal prisoner proceeding pro se

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and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983 and

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Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91

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S.Ct. 1999 (1971). This matter proceeds on an excessive force claim against Defendant

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Pierce.
Before the Court is Plaintiff’s motion seeking miscellaneous relief. It seeks discovery

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sanctions, a stay of discovery and a stay of the action, and reconsideration of the Court’s

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January 30, 2014 order denying his January 29, 2014 motion to modify discovery.

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I.

COMPELLING DISCOVERY / SANCTIONS

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Plaintiff claims that Defendant did not respond to his discovery requests for a

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surveillance video. He wants the non-response deemed an admission that the video does

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not exist.

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Courts in the Eastern District of California have required, “at a minimum, [that] the
moving party plaintiff has the burden of informing the court (1) which discovery requests are
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the subject of his motion to compel, (2) which of the defendant's responses are disputed,

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(3) why he believes the defendant's responses are deficient, (4) why the defendant's

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objections are not justified, and (5) why the information he seeks through discovery is

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relevant to the prosecution of this action.” Walker v. Karelas, 2009 WL 3075575, at *1 (E.D.

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Cal. Sep.21, 2009); Brooks v. Alameida, 2009 WL 331358, at *2 (E.D. Cal. Feb.10, 2009).
Plaintiff has not complied with these requirements. He offers only the argument of

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his “next friend”, C.A. Powell. He fails to inform the Court which discovery requests,

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properly served, are the subject of the motion to compel. He does not address the other

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requirements of a discovery motion. Grabek v. Dickinson, 2012 WL 113799, at *1 (E.D. Cal.

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Jan. 13, 2012); Womack v. Virga, 2011 WL 6703958, at *3 (E.D. Cal. Dec.21, 2011); see

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also Rules 5, 7, 11, 26-37 of the Federal Rules of Civil Procedure and Rules 110, 130, 131,

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133, 135, 142, 144, 230(l) and 251 of the Local Rules of Practice for the United States

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District Court, Eastern District of California.
Additionally, the deadline to complete discovery and bring discovery motions expired

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March 10, 2014. (ECF No. 52.) A motion to extend discovery must include a showing of

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good cause, reasons why discovery could not have been completed prior to expiration of

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the deadline and a statement of the amount of time needed to complete discovery. Fed. R.

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Civ. P. 26(b); ECF No. 30, ¶ 11.
Plaintiff has not demonstrated a need for and entitlement to an order compelling

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discovery and imposing discovery sanctions.

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II.

STAY

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Plaintiff wants to stay the taking of his deposition and the entire action because he is

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in Canada on a family emergency until February 2015, and because of Defendant’s alleged

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refusal to respond to his discovery requests.

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“The district court has broad discretion to stay proceedings as an incident to its

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power to control its own docket.” Clinton v. Jones, 520 U.S. 681, 706–07 (1997), citing

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Landis v. North American Co., 299 U.S. 248, 254 (1936). “The proponent of the stay bears

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the burden of establishing its need.” Id. at 706. The Court considers the following factors
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when ruling on a request to stay proceedings: (1) the possible damage which may result

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from the granting of a stay, (2) the hardship or inequity which a party may suffer in being

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required to go forward, and (3) the orderly course of justice, measured in terms of the

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simplifying or complicating of issues, proof, and questions of law which could be expected

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to result from a stay. Filtrol Corp. v. Kelleher, 467 F.2d 242, 244 (9th Cir. 1972), quoting

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CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962).
Plaintiff’s mere assertion that he is out of the county and unavailable due to family

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emergency is not alone sufficient to stay discovery and the action. See Young v. I.N.S., 208

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F.3d 1116, 1119 (9th Cir. 2000) (strength of justification for stay should balance length of

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any stay granted). A yearlong event suggests anything but an emergency.
Additionally, staying this action would create a risk of prejudice to the Defendant.

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“[D]elay inherently increases the risk that witnesses' memories will fade and evidence will

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become stale”. Yourish v. California Amplifier, 191 F.3d 983, 991 (9th Cir. 1999); see

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Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976) (a presumption of injury arises

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from delay in resolving an action). Delay also disrupts the Court's schedules.
Plaintiff is obliged to diligently prosecute this action. Failure to do so will result in

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dismissal.

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III.

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RECONSIDERATION
Plaintiff asserts the Court’s January 30, 2014 order denying his January 29, 2014

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motion modifying discovery (sic) was in error; that what the Court believed to be an

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improperly filed discovery request was actually a sufficient (for a pro per) motion to compel

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further responses.

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The Court may relieve a party from an order for any reason that justifies relief. Fed.

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R. Civ. P. 60(b)(6). This relief is to be used sparingly as an equitable remedy to prevent

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manifest injustice and is to be utilized only where extraordinary circumstances exist.

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Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008). Furthermore, Local Rule 230(j)

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requires, in relevant part, that Plaintiff show “what new or different facts or circumstances

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are claimed to exist which did not exist or were not shown upon such prior motion, or what
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other grounds exist for the motion,” and “why the facts or circumstances were not shown at

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the time of the prior motion.”
Here Plaintiff’s does not demonstrate any error of fact or law in the January 30th

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order. He is referred to that order (ECF No. 55) for the specific reasons relief was denied,

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which can be summarized as uncertainty whether the subject discovery was served on

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Defendant, whether Defendant had responded and if so how, and why further responses

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were appropriate.

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IV.

Plaintiff purports to appear by and through his “next friend”, C.A. Powell. Some of

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Plaintiff’s submittals appear to have been signed by Mr. Powell.
Plaintiff proceeds pro se in this action. He must represent himself. He may not act

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PRO SE REQUIREMENTS

through another who is not his attorney. Fed. R. Civ. P. 83; Local Rule 183.
Additionally, Plaintiff must keep the Court apprised of his current address. Local

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Rule 183(b). He uses a Canadian address in this motion. It is not clear if that is his current

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address or the South Gate, California address of record.
Failure to comply with these requirements may result in appropriate sanction

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including dismissal.

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V.

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ORDER
Accordingly, for the reasons stated, Plaintiff’s motion seeking miscellaneous relief

(ECF No. 57) is DENIED.

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IT IS SO ORDERED.
Dated:

May 9, 2014

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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