Martin v. McNut et al

Filing 53

ORDER signed by Magistrate Judge Craig M. Kellison on 9/27/11 ORDERING that Plaintiff's MOTION to COMPEL 41 is DENIED; and Plaitiff's MOTION for EXTENSION of the DISCOVERY deadline 48 is DENIED. (Mena-Sanchez, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KEVIN DALE MARTIN,

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No. CIV S-08-1578-CMK-P

Plaintiff,
vs.

ORDER

McNUT, et al.,
Defendants.
/
Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant

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to 42 U.S.C. § 1983. Pending before the court is plaintiff’s motion to compel (Doc. 41) and

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request to extend discovery (Doc. 48).

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At the outset, the court notes that Plaintiff’s motion fails to set forth his

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“contentions . . . as to each contested issue.” See Local Rule 251(c)(3). In particular, Plaintiff

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has not set forth any specific argument as to each disputed request. See id. However, from the

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motion, it appears that plaintiff is requesting a court order requiring responses from the

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defendants in response to his second set of interrogatories. He also requests production of a copy

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of the “videotape and stonaropher” from his deposition, copies of reports regarding the incident

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at issue in this case, and additional time for conducting a deposition upon written question.
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Defendants oppose the motion in that plaintiff’s first set of interrogatories included the maximum

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allowed twenty-five questions, and he has not obtained a stipulation or requested leave to court to

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propound additional questions. In addition, defendants argue they properly responded to the first

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set of interrogatories and production of documents. They did not, however, fully answer the

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questions propounded in the second set as it was over maximum number allowed. In addition,

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the defendants contend there is no videotape of plaintiff’s deposition, and he is not entitled to a

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free transcript, but may order one on his own. Finally, defendants object to any additional

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extension of the discovery deadline, which has long since passed.

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Generally, discovery may be obtained “regarding any nonprivileged matter that is

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relevant to any party’s claim or defense . . . .” Fed. R. Civ. P. 26(b)(1). A motion to compel may

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be brought where the answers provided in response to a discovery request are evasive or

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incomplete. See Fed. R. Civ. Proc. 37(a)(3)(B), (4). Rule 33(a)(1) allows a party to “serve on

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any other party no more than 25 written interrogatories . . . .”

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Here, plaintiff provided the court with copies of his first set of interrogatories

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served on defendants. Clearly, the first set of interrogatories used up his limit, and he did not

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request either a stipulation from defendants or a court order to increase the number of

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interrogatories propounded. He cannot, thereafter, bring a motion to compel responses to these

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extra interrogatories.1 His motion to compel responses to the second set of interrogatories must

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therefore be denied.2

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Even if the court were to construe his motion as a request to propound additional
interrogatories, such a request must be denied as untimely. The discovery deadline was extended
to April 4, 2011, and plaintiff did not file the pending motion until May 16, 2011.
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Plaintiff also objects to the receipt of supplemental responses to his first set of
interrogatories, wherein the defendants corrected a typographical error. The court finds no error
in such action. Where the defendants incorrectly referred to defendant Roche using the wrong
pronoun, a correction of such error does not alter the responses given or received.
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As for plaintiff’s request to receive a transcript of his deposition, Rule 30(f)(3)

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provides that upon payment therefor, any party may receive a copy of a deposition. Plaintiff is

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apparently requesting a copy of transcript without payment. As defendants point out, proceeding

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in forma pauperis does not entitle a party to the waiver of anything other than court filing fees.

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There is no provision in the statute for waiver of transcript or any other type of fee. Therefore,

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his request must be denied. In addition, defendants argue that plaintiff’s deposition, although

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apparently conducted by video conference, was not video recorded. Therefore, there is no video

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recording in which to provide to plaintiff.

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Plaintiff’s request for copies of all reports regarding the incident is unclear. He

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simply states that he is requesting “All writen statements originals or copies identifiable as

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reports about the incident on 7-31-06 made by prison and civilan employees or medical staff ect.”

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(Motion, Doc. 41 at 1(errors in original)). He fails to provide any additional information as to

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what reports he requested, what reports he received, and what he believes should have been

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produced but was not. Defendants contend that in response to plaintiff’s request for production

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of documents number 3, they produced in excess of fifty pages of responsive documents in their

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possession, custody, or control. As plaintiff does not specify what is missing, there is nothing for

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the court to base an order compelling the production of additional documents. The motion to

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compel such production must be denied.

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Finally, discovery in this matter was previously extended to April 4, 2011.

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Plaintiff has belatedly requested an additional extension of that deadline in order to conduct a

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deposition by written question. Plaintiff had ample opportunity to conduct discovery in this case.

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Discovery commenced in August 2010. The parties therefore had eight months to conduct

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whatever discovery they deemed prudent. Plaintiff’s request for additional time was not filed

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until after the discovery deadline had expired. Such a belated request, which failed to show good

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cause as to why the written deposition could not have been conducted during the open discovery

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time, is insufficient to warrant an additional extension of time.
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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s motion to compel (Doc. 41) is denied; and

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Plaintiff’s motion for an extension of the discovery deadline (Doc. 48) is

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denied.

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DATED: September 27, 2011
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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