Butler v. Wern, et al.

Filing 31

ORDER DENYING Plaintiff's Motion to Compel 29 , signed by Magistrate Judge Stanley A. Boone on 2/20/15. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARQUES BUTLER,

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Plaintiff,

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v.

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R. WERN, et al.,

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Defendants.

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ORDER DENYING PLAINTIFF’S MOTION
TO COMPEL
[ECF No. 29]

pursuant to 42 U.S.C. § 1983.
On January 12, 2015, Plaintiff filed a motion to compel. (ECF No. 29.) Defendant filed an

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Case No.: 1:12-cv-01538-SAB (PC)

Plaintiff Marques Butler is appearing pro se and in forma pauperis in this civil rights action

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opposition on January 27, 2015.

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Plaintiff seeks an order compelling Defendant Stratton to answer Plaintiff’s first set of

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interrogatories, numbers one through twenty-five, allegedly served on September 8, 2014. (ECF No.

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29.)

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In opposition, defense counsel declares that no such discovery request was received by

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Defendant Stratton’s counsel until attached to the aforementioned motion to compel filed in this Court

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on January 12, 2015. (ECF No. 30, Braxton Decl. at ¶ 4.) If counsel had received Plaintiff’s

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discovery request, he would have responded in a timely fashion. (Id.)

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Defense counsel declares that Plaintiff served Defendant Montano with a First Set of

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Interrogatories on September 9, 2014, which was the only set of discovery received from Plaintiff at

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that time. After requesting and receiving an extension of time, Defendant Montano responded to

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Plaintiff’s discovery request on November 5, 2014.
Under Rule 26 of the Federal Rules of Civil Procedure, “[p]arties may obtain discovery

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regarding any non-privileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P.

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26(b). Under Rule 37 of the Federal Rules of Civil Procedure, “[a] party seeking discovery may move

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for an order compelling an answer, designation, production, or inspection. . . . if a party fails to answer

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an interrogatory submitted under Rule 33[.]” Fed. R. Civ. P. 37(a)(3)(iii).
In his present motion, although Plaintiff contends that he submitted the interrogatories to

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Defendant Stratton on September 8, 2014, and attaches a copy of said interrogatories, his request for

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interrogatories does not contain a proof of service indicating that he served the discovery requests on

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Defendant Stratton. Nor has Plaintiff verified or submitted any independent evidence such as a

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declaration establishing that he properly served Defendant Stratton with his request for interrogatories.

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Accordingly, because Plaintiff has failed to demonstrate service of the interrogatories, there is no basis

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on which to grant his motion to compel. See, e.g., Palmer v. Crotty, No. 1:07-cv-00148-LJO-DLB

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PC, 2010 WL 4279423 at *1 (E.D. Cal. Oct. 22, 2010) (denying motion to compel because plaintiff

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failed to submit any evidence that he served discovery requests on defendant); Rider v. Yates, No.

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1:07-cv-01516-SMS PC, 2010 WL 492697 at *1 (E.D. Cal. Feb. 5, 2010) (burden is on the moving

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party to provide the court with information necessary to make a ruling, including proof of service for

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discovery requests particularly when defendants contend they were not properly served).

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Based on the foregoing,

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IT IS HEREBY ORDERED that Plaintiff’s motion to compel is DENIED.

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IT IS SO ORDERED.

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Dated:

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February 20, 2015
UNITED STATES MAGISTRATE JUDGE

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