Avalos v. Carpenter et al

Filing 37

ORDER withdrawing 32 FINDINGS AND RECOMMENDATIONS; granting 36 Motion for Extension of Time to respond to Motions to Compel and disregarding 33 Motion to Compel signed by Magistrate Judge Jennifer L. Thurston on 10/7/2016. (Filing Deadline: 11/14/2016).(Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 ORDER WITHDRAWING FINDINGS AND RECOMMENDATION TO DISMISS and GRANTING THIRTY DAYS TO RESPOND TO THE MOTIONS MOTIONS TO COMPEL (Docs. 26-28, 31, 32, 36) Plaintiff, 13 14 1:15-cv-00369-LJO-JLT (PC) ANGEL AVALOS, v. CARPENTER, et al., 15 Defendants. 30-DAY DEADLINE 16 ORDER DISERGARDING PLAINTIFF’S MOTION TO COMPEL (Doc. 33) 17 18 19 I. Defendant’s motions to compel 20 On July 8, 2016, the only remaining Defendant in this action, Carpenter, filed three 21 motions to compel Plaintiff to respond to his discovery requests. (Docs. 26, 27, 28.) Plaintiff did 22 not respond to any of these motions. Thus, on August 18, 2016, the Court ordered Plaintiff to file 23 an opposition or a statement of non-opposition to the motions within 21 days. (Doc. 31.) The 24 Court warned Plaintiff that the failure to comply with the Court's order and to prosecute the action 25 would result in recommendation that this action be dismissed. (Id.) Thereafter, Plaintiff did not 26 file any response. Consequently, on September 13, 2016, this Court issued Findings and 27 Recommendations to dismiss this action based on Plaintiff’s failure to obey the Court’s order and 28 to prosecute this action. (Doc. 32.) 1 1 On October 3, 2016, Plaintiff filed objections to the F&R indicating that he did not file a 2 response to Defendants motions to compel because he had not received a ruling on a motion for 3 extension of time that he filed on September 5, 2016. (Doc. 35.) However, the Court did not 4 receive this motion. Along with his objections, however, Plaintiff filed a request for a 30-day 5 extension of time to file responses to Defendants’ motions to compel to which he attached a copy 6 of his earlier motion for an extension of time.1 (Doc. 36.) He offers no explanation for his failure 7 to respond to the motion in July after it was filed, except to explain that he has limited access to 8 the law library. Exactly how this explains his decision to file nothing is unclear. Moreover, when 9 his earlier motion was returned to him in the mail, it is inexplicable that he chose to take no 10 further action until the Court took the step to dismiss the case. In any event, the Court will 11 withdraw the recommendation to dismiss the action and extend him additional time to respond. 12 II. Plaintiff’s motion to compel In addition to the other filings, Plaintiff filed a “motion to compel.” (Doc. 33) In essence, 13 14 Plaintiff seeks an order from the Court compelling defendant’s attorney to produce the results of 15 an investigation completed by the California Department of Corrections and Rehabilitation. Id. 16 To him motion, Plaintiff attaches a letter from the CDCR issued more than a year ago, telling him 17 the investigation was completed. Id. at 6. He also attaches a letter to Defendant’s attorney, dated 18 September 5, 2016, asking that the investigation results be produced. Id. at 3-4. 19 The Court may compel production of the documents that a party wrongfully refuses to 20 produce in discovery. Fed. R. Civ. P. 37. However, Plaintiff makes no showing he ever 21 requested the document to be produced during discovery and, of course, the deadline for doing so 22 has passed. (Doc. 14 at 2). Moreover, the deadline for filing motions to compel expired three 23 months ago. Id. Therefore, the Court will STRIKE Plaintiff’s motion to compel (Doc. 33) as 24 untimely and improperly supported. 25 /// 26 /// 27 1 28 Plaintiff’s earlier motion was returned to him by the U.S. Postal Service because he failed to write an address for this court on the envelope. Plaintiff does not explain why he believed the mail would be delivered despite that he did not write an address on the envelope. 2 1 ORDER 2 Based upon the foregoing, the Court ORDERS: 3 1. 4 WITHDRAWN; 5 2. 6 7 8 The Findings and Recommendation to dismiss the action (Doc. 32) is Plaintiff SHALL file an opposition or statement of non-opposition to the motions to compel within 30-days from the date of service of this order; 3. Plaintiff’s motion to compel (Doc. 33) is STRICKEN as untimely and not properly supported. 9 10 11 IT IS SO ORDERED. Dated: October 7, 2016 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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