Shepard v. Borum et al

Filing 40

ORDER DENYING 22 Motions to Compel Discovery signed by Magistrate Judge Jeremy D. Peterson on 10/17/2019. (Flores, E)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LAMONT SHEPARD,

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Plaintiff,

Case No. 1:18-cv-00277-DAD-JDP
ORDER DENYING MOTIONS TO COMPEL
DISCOVERY

v.
ECF Nos. 22, 23, 33
M. BORUM, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding without counsel in this civil rights action brought
under 42 U.S.C. § 1983. Before the court are plaintiff’s three motions to compel discovery.
On April 29, 2019, plaintiff moved to compel discovery, claiming that he had not received

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responses to his interrogatories or requests for admissions. See ECF Nos. 22, 23. On May 16,

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2019, defendants opposed the motions, arguing that they did respond to plaintiff’s discovery

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requests after plaintiff filed his motions. See ECF No. 24. Plaintiff did not reply. Plaintiff’s first

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two motions to compel discovery are moot and will be denied.

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On July 17, 2019, plaintiff moved to compel discovery for a third time, arguing that

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defendants failed to answer his second set of interrogatories. See ECF No. 33. On August 7,

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2019, defendants opposed the motion, arguing that plaintiff did not have the right to serve

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additional interrogatories. See ECF No. 37. Plaintiff did not reply.

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Rule 33 limits the number of interrogatories that a party may serve to twenty-five, unless

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otherwise agreed by the parties or ordered by the court. Fed. R. Civ. P. 33(a)(1). In this case,

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plaintiff served defendants with twenty-five interrogatories, see ECF No. 23 at 3-6, and

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defendants responded to those interrogatories, see ECF No. 24-1 at 9. The parties have not

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agreed to enlarge discovery, and plaintiff does not seek leave from the court to do so. Therefore,

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plaintiff does not have the right to serve a second set of interrogatories. See Fed. R. Civ. P.

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33(a)(1).

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Even if plaintiff were to move the court for permission to serve more discovery, such a
motion would not be supported by Rule 37 because defendants answered the first set of

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interrogatories. See Fed. R. Civ. P. 37(a) (providing grounds for a motion to compel discovery

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responses when a party fails to answer an interrogatory submitted under Rule 33 or gives an

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evasive or incomplete disclosure); ECF No. 37-1 at 14-25 (listing defendants’ responses to

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plaintiff’s first set of interrogatories). Thus, plaintiff’s third motion to compel is also without

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merit.
Accordingly, all three of plaintiff’s motions to compel discovery, ECF Nos. 22, 23, 33, are

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denied.

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IT IS SO ORDERED.

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Dated:
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October 17, 2019
UNITED STATES MAGISTRATE JUDGE

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No. 204

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