Daniels v. Tolson, et al.

Filing 99

ORDER denying 93 Motion lodging a Complaint against Defendant signed by Magistrate Judge Stanley A. Boone on 2/27/2017. (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
LODGING A COMPLAINT AGAINST
DEFENDANT
[ECF No. 93]

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.

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Currently before the Court is Plaintiff’s motion “lodging complaint against Defendant for not

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filing answer to Plaintiff’s interrogatory,” filed January 20, 2017.1 Defendant filed an opposition on

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February 9, 2017, and Plaintiff did not file a reply. Therefore, the motion is deemed submitted for

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review without oral argument. Local Rule 230(l).

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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.)

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In September 2016, almost three months after the discovery deadline, Plaintiff served

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interrogatories on Defendant Sherman. This is Plaintiff’s third untimely motion to compel discovery

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responses which were served months after the discovery deadline. (See ECF Nos. 72 & 79.) Because

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the discovery deadline had expired, Defendant Sherman was under no obligation to file a response to

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Plaintiff’s untimely discovery request. See, e.g., Bertram v. Sizelove, No. 1:10-cv-00583-AWI-GBC

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(PC), 2012 WL 2090060, at *2 (E.D. Cal. June 8, 2012) (court will not grant a motion to compel

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untimely discovery). In addition, all motions to compel discovery had to be filed on or before the July

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29, 2016, deadline. (Disc. & Sch. Order ¶ 7.)
In this instance, neither the discovery request nor the motion to compel were timely filed and

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served, and Plaintiff’s third motion to compel further responses to his discovery request must be

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denied.

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II.

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ORDER
Based on the foregoing, it is HEREBY ORDERED that Plaintiff’s motion lodging a complaint

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against Defendant 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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February 27, 2017
UNITED STATES MAGISTRATE JUDGE

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