Ervin v. Merced Police Dept. et al
Filing
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ORDER Denying Plaintiff's Motions to Compel Discovery 86 , 91 , 95 signed by Magistrate Judge Gary S. Austin on 7/19/2015. (Martinez, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ELTON W. ERVIN,
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Plaintiff,
1:13-cv-00446 GSA
ORDER DENYING PLAINTIFF’S
MOTIONS TO COMPEL DISCOVERY
v.
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MERCED POLICE DEPARTMENT, et
al.,
(Docs. 86, 91, and 95)
Defendants.
Plaintiff Elton Ervin (“Plaintiff”) is proceeding pro se in this civil action. On June 15,
2015, Plaintiff filed a motion entitled, “Motion for Limited Discovery in re: Docs. 51 and 60,”
which the Court construes as a Motion to Compel Discovery and a Motion to Amend the
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Scheduling Order. (Doc. 86). In this motion, Plaintiff requests that Defendants produce fifteen
items that he alleges he previously requested. Id. Also included in this motion, is a request that
Defendants be required to file responses to Plaintiff’s request for admissions, as well as a request
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for Sargent Aponte’s police report and supplemental declarations. (Doc. 86, pg. 5). On July 13,
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2015, Plaintiff filed duplicative motions, again requesting Defendants’ responses to Plaintiff’s
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Request for Admissions (Doc. 91), as well as a request that Defendants produce Sargent Aponte’s
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police reports and declarations. (Doc. 95).
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Defendants have filed oppositions to all of these motions. (Docs. 92, 93, 97 and 98).
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Plaintiff has not filed a reply to Defendants’ opposition that was filed on June 30, 2015. (Docs.
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92-93). Defendants argue that the Court should deny the motions because the requests are
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untimely, and they exceed the scope of this Court’s previous order extending the non-expert
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discovery deadline to February 1, 2015. (Doc. 51). They also contend that they have either
responded to these requests, and/or provided Plaintiff with several of the requested items on June
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30, 2015, after a protective order had been signed. (Doc. 92, pgs. 2-4).
As a preliminary matter, this Court granted an extension of the non-expert discovery
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deadline until February 1, 2015, so that Plaintiff could request the following items (See, Docs. 51
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and 60) :
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1)
Initial police reports;
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Each of the officer’s written statements;
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Any and all photos;
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Drug test kits, and the results of such testing; and
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5)
Standard police procedures/manuals.
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The order explicitly limited the extension to the items referenced above. (Doc. 51, pg. 2,
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lines 21-23). On February 4, 2015, Plaintiff filed another Motion to Extend the non-expert
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discovery deadline for 30 days. (Doc. 60). This Court denied the request because Plaintiff failed
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to establish good cause for the request. (Doc. 76). However, the motion was denied without
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prejudice subject to refiling. Id.
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Plaintiff has re-filed the instant motions in an effort to again modify the scheduling order
and request additional discovery. However, Plaintiff’s motions do not establish good cause to
modify the non-discovery deadline in this case. Fed. R. Civ. P. 16(b)(2) and (3) requires district
courts to enter scheduling orders to establish deadlines for, among other things, “to file motions”
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and “to complete discovery.” Federal Rule of Civil Procedure 16 provides that the deadlines
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established in a scheduling order may “be modified only for good cause.” Fed. R. Civ. P.
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16(b)(4). The good cause “standard primarily considers the diligence of the party seeking the
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amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). It is
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only satisfied when a deadline “cannot reasonably be met despite the diligence of the party
seeking the extension.” Id. “[C]arelessness is not compatible with a finding of diligence and
offers no reason for a grant of relief.” Id.
Here, Plaintiff offers no explanation for his failure to timely complete non-expert
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discovery, even after being given one extension of time to do so. Moreover, the dispositive
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motion filing deadline of April 17, 2014 has expired, and Defendants have filed a Motion for
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Summary Judgment which Plaintiff has already opposed. (Docs. 65-71, 81). Allowing additional
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discovery at this juncture would be prejudicial to Defendants. Additionally, a review of the
Defendants’ oppositions reveal that they had already responded to all of Plaintiff’s fifteen
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requests outlined in Plaintiff’s motion filed on June 15, 2015 (Doc. 86), or had subsequently sent
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documents to Plaintiff after a stipulated protective order had been signed. (Docs. 92, Pg. 7 and
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Doc. 93). Therefore, Plaintiff has received responses to his discovery requests related to these
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fifteen items and his motion is denied.
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Finally, Plaintiff’s Request for Defendant’s responses to his request for admissions is also
denied because he failed to request them by the discovery deadline. (Doc. 91). The non-expert
discovery deadline was August 19, 2014 in this case. (Doc. 32). The Court’s extension of the
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non-expert discovery until February 1, 2015, did not include requests for admissions, nor has
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Plaintiff ever asked for an extension of time to complete this form of discovery. (Doc. 51).
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Plaintiff did not mail his requests for admissions until January 26, 2015 which is well past the
non-expert deadline. (Doc. 93-3, pg. 7). Defendants objected to Plaintiff’s request for admissions
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because the requests were not timely. (Doc. 93-5). Defendants’ opposition is proper given
Plaintiff’s untimely request.
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ORDER
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For the reasons outlined above, Plaintiff’s Motions to Compel Discovery and any Motions
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to Amend the Scheduling Order are DENIED. (Doc. 86, 91, and 95).
The Court notes that on June 30, 3015, Defendants filed the declaration of Kevin Allen
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dated June 30, 2015 (Doc. 93) in opposition of Plaintiff's Motion for Discovery. In the
declaration, Mr. Allen indicates that Supplemental Responses (Exhibit F) that were served on
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Plaintiff on June 30, 2015, were not filed on CM/ECF because they are subject to a confidential
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protective order. Instead, courtesy copies were filed with the Court. (Doc. 93, pg. 2, para. 8).
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Defendants shall file these documents under seal (Doc. 93-6, Exhibit F) pursuant to the
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procedures outlined in Local Rule 144 no later than July 27, 2015, so that these responses are part
of the Court’s record.
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IT IS SO ORDERED.
Dated:
July 19, 2015
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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