Brown v. Gipson et al

Filing 89

ORDER DENYING 88 Motion to Compel Discovery; ORDERING Plaintiff's Objections to the August 23, 2018 findings and recommendations, if any, are due within fourteen (14) Days of this order, signed by Magistrate Judge Barbara A. McAuliffe on 10/24/18. (14-Day Deadline) (Martin-Gill, S)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 WILLIAM BROWN, Plaintiff, 11 ORDER DENYING PLAINTIFF’S MOTION FOR AN ORDER COMPELLING DISCOVERY AND CDCR OFFICIALS TO RESPOND TO K.A.G.E. DEMANDS [Doc No. 88] Defendant. 10 12 Case No. 1:13-cv-02084-AWI-BAM (PC) ORDER GRANTING PLAINTIFF A FINAL EXTENSION OF TIME TO FILE OBJECTIONS TO FINDINGS AND RECOMMENDATIONS v. W. RASLEY, 13 14 15 FOURTEEN-DAY DEADLINE 16 17 18 19 I. Introduction Plaintiff William Brown is a state prisoner proceeding pro se and in forma pauperis in this 20 civil rights action pursuant to 42 U.S.C. § 1983. This case proceeds on Plaintiff’s claims against 21 Defendant Rasley for retaliation in violation of the First Amendment, excessive force in violation 22 of the Eighth Amendment, and conversion under state law. 23 Plaintiff’s claims arise out of allegations concerning events occurring at CSP-Corcoran on 24 November 7, 2013. Plaintiff alleges that while he was housed in ASU, Defendant Rasley threw a 25 smoke grenade into Plaintiff’s cell because of complaints and grievances that Plaintiff made 26 regarding prison conditions, and took his television and other items in retaliation for the same 27 complaints and protesting. (See Ex. to Compl., Rules Violation Report (“RVR”) #3A04-13-11- 28 002, Doc. No. 1, at 72-73.) 1 On August 23, 2018, the undersigned issued findings and recommendations 2 recommending that Defendant’s motion for summary judgment for the failure to exhaust 3 administrative remedies be granted, and that this action be dismissed, without prejudice. (Doc. 4 No. 85.) The parties were permitted fourteen (14) days to file any objections. (Id. at 10.) 5 On September 10, 2018, Plaintiff filed a motion for an extension of time to file objections. 6 (Doc. No. 86.) On September 12, 2018, the Court granted Plaintiff a thirty (30) day extension of 7 time. (Doc. No. 87.) That extended deadline has passed, and no objections were filed. Currently before the Court is Plaintiff’s motion for an order compelling discovery, filed 8 9 10 on October 22, 2018. (Doc. No. 88.) II. 11 Discussion Plaintiff moves for an order pursuant to Federal Rule of Civil Procedure 37(a) to compel 12 Defendant and non-party Connie Gipson, Warden of CSP-Corcoran, to respond to discovery 13 requests. (Id.) Plaintiff states that interrogatories were not properly responded to, although no 14 interrogatories are provided. Instead, Plaintiff attaches a second request for production of 15 documents to Defendant and others, dated October 12, 2018, in support of his motion. (Id. at 5- 16 18.) 17 The discovery and scheduling order in this case was issued on September 1, 2017. (Doc. 18 No. 42.) The deadlines in that order were later amended by the Court’s September 25, 2017 19 order, but all substantive provisions remained the same. (Doc. No. 52.) Under the amended 20 discovery and scheduling order, the deadline for completion of all discovery, including filing all 21 motions to compel discovery, was May 31, 2018. (Id.)1 Plaintiff’s current motion comes well after the deadline for discovery has closed, and well 22 23 after Defendant’s motion for summary judgment for the failure to exhaust administrative 24 1 25 26 27 28 Non-exhaustion related discovery was later stayed by an order issued on February 6, 2018, pending the resolution of Defendant’s summary judgment motion on the exhaustion of available administrative remedies. (Doc. No. 74.) The Court expressly held that the parties were permitted to complete all discovery on matters related to exhaustion of administrative remedies or government claim presentation issues within the remaining deadline. In that order, the Court also required Defendant to respond to interrogatories and requests for production that Plaintiff had served on December 8, 2017, to the extent they related to exhaustion. (Id. at 2-3.) 2 1 remedies was filed and fully briefed. As noted above, findings and recommendations were issued 2 on that fully-briefed motion over two months ago. Plaintiff presents no good cause for his 3 untimely motion to compel. Fed. R. Civ. P. 16(b)(4). Moreover, the record shows that Plaintiff 4 has had ample opportunity for discovery on these issues. 5 Plaintiff asserts that the discovery requests correlate to his CDCR 602 at issue in the 6 dispute over whether he has exhausted his administrative remedies, but a review of the requests 7 themselves does not support his contention. Instead, the late discovery requests attached to his 8 motion seek information about the facts in support of his claim, not about the issue of exhaustion 9 of available administrative remedies or government claim presentation. Plaintiff has also sought 10 no leave to issue any such late discovery requests or shown any good cause for re-opening 11 discovery on these matters at this late stage in the litigation. For all these reasons, Plaintiff’s 12 motion is denied. 13 III. Conclusion 14 As noted above, it appears that Plaintiff filed the instant motion in lieu of filing objections 15 to the pending findings and recommendations. In an abundance of caution, the Court will permit 16 Plaintiff an additional fourteen (14) days to file objections, now that he has notice that his motion 17 to compel is being denied. No further extensions of time will be permitted. 18 Accordingly, it is HEREBY ORDERED that: 19 1. 20 21 22 Plaintiff’s motion to compel discovery, filed on October 22, 2018 (Doc. No. 88), is denied; and 2. Plaintiff’s objections to the August 23, 2018 findings and recommendations, if any, are due within fourteen (14) days of this order. 23 24 25 IT IS SO ORDERED. Dated: /s/ Barbara October 24, 2018 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 26 27 28 3

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