Gutierrez v. Gutierrez

Filing 96

ORDER GRANTING 87 Defendant's Motion to Compel Discovery Responses and ORDER EXTENDING Dispositive Motion Filing Deadline (Docs. 94 & 95 ) signed by Magistrate Judge Stanley A. Boone on 7/20/2016. Discovery due by 8/15/2016. Dispositive Motions filed by 9/16/2016. (Jessen, A)

1
2
3
4
5
6
7
8
9
10
11

UNITED STATES DISTRICT COURT

12

EASTERN DISTRICT OF CALIFORNIA

13
G. J. GUTIERREZ,

14

Case No. 1:13-cv-00421-DAD-SAB-PC
ORDER GRANTING DEFENDANT’S
MOTION TO COMPEL DISCOVERY
RESPONSES (ECF NO. 87)

Plaintiff,

15
16

v.

17

A. GUTIERREZ,

ORDER EXTENDING DISPOSITIVE
MOTION FILING DEADLINE
(ECF NOs. 94, 95)

Defendant.

18

Dispositive Motion Deadline:
September 16, 2016

19
20
21

Plaintiff G. J. Gutierrez is appearing pro se and in forma pauperis in this civil rights

22

23 action pursuant to 42 U.S.C. § 1983. Pending before the Court is Defendant’s motion to compel
24 further discovery responses filed on May 12, 2016. (ECF No. 87.) On June 20, 2016, Plaintiff
25 filed opposition to the motion. (ECF No. 90.)

On July 13, 2016, Defendant filed a request to

1
26 extend time to file a dispositive motion. (ECF Nos. 94, 95.)

27
1

On July 13, 2016, Plaintiff filed a fourth motion and an amended fourth motion to extend the dispositive motion

28 filing deadline (ECF Nos 94, 95).

1

1

This action proceeds on the original complaint against Defendant on Plaintiff’s claims of

2 excessive force and failure to protect in violation of the Eighth Amendment. The allegations
3 stem from a prison disturbance that occurred at Pleasant Valley State Prison.
4

Defendant seeks to compel responses to interrogatories and a request for production of

5 documents. On December 7, 2015, an order was entered, granting Defendant’s motion to compel
6 responses to interrogatories and request for production of documents within forty-five days.
7 (ECF No. 75.) On February 1, 2016, Plaintiff was granted a thirty day extension of time (ECF
8 No. 76.)

On March 2, 2016, The Court granted Plaintiff’s second request for an extension of

9 time. (ECF Nos. 79, 80.) On March 15, 2016, Plaintiff was granted a third request for extension
10 of time (ECF No. 84.) The Court also granted Defendant’s three requests to extend time to file a
11 dispositive motion based on his need for the discovery in order to file a dispositive motion. (ECF
12 Nos. 71, 85, 89.)

In his motion to compel, Defendant indicates that although he has received

13 discovery responses from Plaintiff, the discovery responses are not complete. Defendant’s
14 motion is supported by the declaration of counsel. Counsel declares that Defendant has awaited
15 receipt of additional discovery responses from Plaintiff ever since his third request for extension
16 of time. To date, counsel has not received any supplemental responses to the discovery requests
17 nor any of the documents contemplated in Plaintiff’s third request for additional time. (Mayer
18 Decl. ¶ 4.)
19

In his opposition to the motion to compel, Plaintiff argues that his mail is being tampered

20 with and is not being processed by prison officials. Plaintiff makes vague references to rogue
21 prison guards who are taking part in intercepting Plaintiff’s incoming and outgoing mail.
22 Plaintiff indicates that he “did place the information that was available to me in the mail
23 addressed to defense counsel before the last issued cut-off date. Defense counsel has been
24 served with the requested documentation. Whether her counterparts actually processed and
25 delivered it to her in an untimely fashion for nefarious purposes is to be determined. I say yes.”
26 (ECF No. 90, ¶ 5.)
27 ///
28 ///

2

1

Defendant’s fourth motion to modify the scheduling order to extend the dispositive

2 motion filing deadline filed on July 13, 2016, is supported by the declaration of counsel.
3 Counsel declares that based on Plaintiff’s third request for additional time and the dates of proofs
4 of service, it became apparent that Plaintiff’s discovery responses remained incomplete. Counsel
5 anticipated receiving further discovery responses from Plaintiff, but has not received any to date.
6 (ECF No. 95 at 5:21.)
7

Defendant requests that the Court find that Plaintiff has failed to timely respond and issue

8 an order compelling further responses and production of documents, without objection, on a date
9 certain. Fed. R. Civ. P. 33(b)(2)-(3) & 34(b)(2)(A)-(B) (discovery requests must be individually
10 responded to within thirty days of service or per Court order; Richmark Corp. v. Timber Falling
11 Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992)(untimely objections waived).
12

Plaintiff has been provided ample opportunity to produce the supplemental responses

13 sought by Defendant. The Court finds that Plaintiff’s statement that he provided the information
14 that was available to be vague. Plaintiff must submit the supplemental answers to interrogatories
15 and requests for production of documents.

Plaintiff does not offer any objections, or any

16 justification for his refusal to submit complete responses to Defendant’s request. Plaintiff has
17 been ordered to provide the responses to discovery sought by Defendant, and has been granted
18 three extensions of time to do so.
19

The Court cannot hold this action in abeyance indefinitely pending Plaintiff’s responses

20 to Defendant’s discovery requests. Plaintiff offers no justification for continuing to delay this
21 action.

The Court will provide Plaintiff with one further opportunity to respond, without

22 objection, to Defendant’s discovery requests. Plaintiff is warned that if he fails to timely comply
23 with this order, he will be subject to sanctions, up to and including dismissal of this action. No
24 further extensions of time will be granted.
25

Accordingly, IT IS HEREBY ORDERED that:

26

1. Defendant’s motion to compel discovery responses is GRANTED. Plaintiff shall

27

serve his responses, without objection, to Defendant’s discovery requests on counsel

28

for Defendant on or before August 15, 2016;

3

2. Defendant’s motion to modify the scheduling order is GRANTED. The dispositive

1

motion filing deadline is continued to September 16, 2016; and

2

3. Plaintiff is warned that his failure to timely comply with this order may result in

3

sanctions, up to and including dismissal of this action.

4
5
6

IT IS SO ORDERED.

7 Dated:

July 20, 2016
UNITED STATES MAGISTRATE JUDGE

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

4