Ahkeem Williams v. Pedriero et al

Filing 80

ORDER Striking Plaintiff's 64 65 67 Motions to Compel and Denying Defendants' Requests for Reasonable Expenses signed by Magistrate Judge Sheila K. Oberto on 12/04/2013. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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AHKEEM WILLIAMS,
Plaintiff,

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v.

Case No. 1:12-cv-00606-SKO PC
ORDER STRIKING PLAINTIFF’S
MOTIONS TO COMPEL AND DENYING
DEFENDANTS’ REQUESTS FOR
REASONABLE EXPENSES

KIM PEDRIERO, et al.,
(Docs. 64, 65, and 67)

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Defendants.
_____________________________________/

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Plaintiff Akheem Williams (“Plaintiff”), a former state prisoner proceeding pro se and in

18 forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on April 17, 2012. This
19 action is proceeding against Defendants Garcia, Valdez, Cortez, Silva, Castro, Day, Stepp, Collier,
20 Torres, Delia, Jr., and Tordsen (“Defendants”) for use of excessive physical force, in violation of
21 the United States Constitution.
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On October 22, 2013, Plaintiff filed two motions to compel and on October 24, 2013,

23 Plaintiff filed a motion to compel. Defendants filed oppositions, Plaintiff did not file replies, and
24 the motions have been submitted upon the record. Local Rule 230(l).
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On October 3, 2013, in an order addressing two previous motions to compel, the Court

26 stated as follows:
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Plaintiff failed to include a proof of service by mail with either motion. Every
document filed by Plaintiff must be accompanied by a proof of service by mail
form setting forth (1) the date of service, (2) the document(s) served, (3) the name

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of the individual or entity upon whom service was made (Defendants’ counsel, in
this situation), and (4) the signature of the individual who served the document by
mail. Plaintiff was provided with a proof of service form in an order filed on April
19, 2012, but the Court will direct the Clerk’s Office to provide him with another
one. Plaintiff is warned that any future filings that do not include the requisite
proof of service will be stricken from the record.

4 (Doc. 57, Order, 1:26-2:6.)
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While Plaintiff’s three pending motions to compel were accompanied by the proof of

6 service form provided by the Court, Plaintiff failed to certify that the motions were served on
7 Defendants’ counsel, in direct contravention of the Court’s specific, plainly worded order.
8 Accordingly, Plaintiff’s motions are stricken from the record for failure to comply with the order
9 of October 3, 2013.
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In opposing all three motions to compel, Defendants seek reasonable expenses pursuant to

11 Federal Rule of Civil Procedure 37(a)(5)(B), which provides that if a motion to compel is denied,
12 the Court shall require the movant to pay the party who opposed the motion its reasonable
13 expenses incurred in opposing the motion, including attorney’s fees. Fed. R. Civ. P. 37(a)(5)(B)
14 (quotation marks omitted). In this instance, the Court did not reach the merits of Plaintiff’s
15 motions to compel in light of his failure to comply with the order of October 3, 2013. The Court
16 therefore declines to award expenses to Defendants on the basis that they are the prevailing parties
17 under Rule 37(a)(5)(B), and given Plaintiff’s pro se status, there is insufficient support at this time
18 for consideration of sanctions under the Court’s inherent authority. E.g., Evon v. Law Offices of
19 Sidney Mickell, 688 F.3d 1015, 1035 (9th Cir. 2012) (sanctions may be assessed for willful
20 (deliberate) violation of a court order or for bad faith).
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Based on the foregoing, it is HEREBY ORDERED that (1) Plaintiff’s motions to compel

22 are STRICKEN from the record for failure to comply with the order filed on October 3, 2013, and
23 (2) Defendants’ requests for reasonable expenses are DENIED.
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IT IS SO ORDERED.
Dated:

December 4, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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