Daniels v. Tolson, et al.

Filing 85

ORDER denying 79 Motion for penalties against Defendant, Stu Sherman signed by Magistrate Judge Stanley A. Boone on 1/4/2017. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NORMAN GERALD DANIELS III,

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Plaintiff,

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v.

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STU SHERMAN,

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Defendant.

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Case No.: 1:13-cv-00202-AWI-SAB (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR PENALTIES AGAINST DEFENDANT
STU SHERMAN
[ECF No. 79]

Plaintiff Norman Gerald Daniels III is appearing pro se and in forma pauperis in this civil

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rights action pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff’s request for the Court to impose penalties on Defendant

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Sherman for not responding to a written discovery letter, filed November 22, 2016.1 Defendant filed

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an opposition on December 12, 2016, and Plaintiff did not file a reply. Therefore, the motion is

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deemed submitted for review without oral argument. Local Rule 230(m).

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I.

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DISCUSSION
Pursuant to the Court’s discovery and scheduling order all written discovery requests were to

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be served at least forty-five days prior to the discovery deadline of July 29, 2016. (Order ¶¶ 2, 7, ECF

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The Court finds that Plaintiff’s motion should be construed as a motion to compel a discovery response from Defendant
Sherman.

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No. 47.) Accordingly, all written discovery requests had to be served by June 10, 2016, to comply

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with the July 29, 2016, deadline. (Id.)
In September 2016, almost three months after the discovery deadline, Plaintiff served a written

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discovery request on Defendant Sherman. Because the discovery deadline had expired, Defendant

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Sherman was under no obligation to file a response to Plaintiff’s untimely discovery request. See,

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e.g., Bertram v. Sizelove, No. 1:10-cv-00583-AWI-GBC (PC), 2012 WL 2090060, at *2 (E.D. Cal.

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June 8, 2012) (court will not grant a motion to compel untimely discovery). In addition, all motions to

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compel discovery had to be filed on or before the July 29, 2016, deadline. (Disc. & Sch. Order ¶ 7.)

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In this instance, neither the discovery request nor the motion to compel were timely filed and served,

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and Plaintiff’s motion to compel further responses to his discovery request must be denied.

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II.

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ORDER

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Based on the foregoing, it is HEREBY ORDERED that Plaintiff’s motion for penalties

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construed as a motion to compel is DENIED.

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IT IS SO ORDERED.

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Dated:

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January 4, 2017
UNITED STATES MAGISTRATE JUDGE

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