Hawkins v. Ibarra et al

Filing 25

ORDER Denying 21 Plaintiff's Motion for Discovery and Compelling Discovery; ORDER Denying 22 Defendant's Motion to Strike Plaintiff's Motion for Discovery as Moot, signed by Magistrate Judge Barbara A. McAuliffe on 4/13/15. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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HOMER EARL HAWKINS,

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Plaintiff,

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v.
S. IBARRA, et al.,

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Defendants.

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1:14-cv-00009-AWI-BAM (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR DISCOVERY AND COMPELLING
DISCOVERY
(ECF No. 21)
ORDER DENYING DEFENDANT’S
MOTION TO STRIKE PLAINTIFF’S
MOTION FOR DISCOVERY AS MOOT
(ECF No. 22)

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I.

Background

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Plaintiff Homer Earl Hawkins (“Plaintiff”) is a state prisoner proceeding in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Defendants removed the action

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to this Court on January 2, 2014.

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Following screening, on November 17, 2014, the Court ordered that this action proceed

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on Plaintiff’s complaint against Defendant S. Ibarra for excessive force in violation of the Eighth

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Amendment. (ECF No. 18.) Defendant Ibarra answered the complaint on December 5, 2014.

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(ECF No. 19.)

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On December 8, 2014, the Court issued a Discovery and Scheduling Order. Pursuant to

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that order, the deadline to complete discovery is August 8, 2015, and the dispositive motion

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deadline is October 19, 2015. (ECF No. 20.)

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On January 12, 2015, Plaintiff filed a motion for discovery pursuant to Federal Rules of

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Civil Procedure 26 and 37. (ECF No. 21, p. 1.)
On February 2, 2015, Defendant Ibarra filed a motion to strike Plaintiff’s motion for

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discovery pursuant to Federal Rules of Civil Procedure 12(f). Defendant Ibarra contends that

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Plaintiff failed to serve him with any discovery request prior to moving the Court to compel the

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discovery Plaintiff seeks. (ECF Nos. 22, Declaration of Alicia Bower ¶ 3.) Defendant Ibarra

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therefore requests that the Court strike Plaintiff’s motion for discovery as improper and

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noncompliant with the Court’s Discovery and Scheduling Order, the Federal Rules of Civil

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Procedure and the Eastern District Local Rules. (ECF No. 22.)

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II.

Discussion

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Plaintiff seeks a court order compelling the production and inspection of documents.

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Federal Rule of Civil Procedure 37 provides that a party seeking discovery may move for an

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order compelling production and inspection where a party fails to respond to a discovery request.

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Fed. R. Civ. P. 37(a)(3)(B). Here, Plaintiff did not serve Defendant Ibarra with any discovery

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request and Defendant Ibarra is not subject to the initial disclosure requirements of Federal Rule

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of Civil Procedure 26(a)(1). Fed. R. Civ. P. 26(a)(B)(iv). As such, Plaintiff’s motion to compel

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discovery is premature and, on that basis, shall be denied.

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Although the Court’s Discovery and Scheduling Order provides that discovery motions

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that do not comply with applicable rules will be stricken and may result in the imposition of

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sanctions, such measures do not appear warranted in this instance. (ECF No. 20, p. 2.) Rather, it

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appears that Plaintiff misunderstands the procedures for obtaining discovery. As stated in the

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Court’s Discovery and Scheduling Order, discovery requests shall be served by the parties

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pursuant to Federal Rule of Civil Procedure 5 and Local Rule 135. Thereafter, responses to

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written discovery requests are due forty-five (45) days after the request is served. (ECF No. 20,

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p. 1.) Only if a discovery dispute arises or if a party fails to respond to discovery should a

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motion to compel be filed. Fed. R. Civ. P. 37; see also ECF No. 20, p. 2.) Further, given the

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Court’s determination that Plaintiff’s motion compelling discovery is premature, Defendant’s

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motion to strike is moot.
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III.

Conclusion and Order

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For the reasons stated, it is HEREBY ORDERED that:

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1. Plaintiff’s motion to compel discovery is HEREBY DENIED as premature; and

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Defendant’s motion to strike is DENIED as moot.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

April 13, 2015

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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