Blackwell v. Pizzola

Filing 39

ORDER signed by Magistrate Judge Dale A. Drozd on 04/14/10 DENYING 28 and 31 Motion to Compel; DENYING 38 Request for Judgment. (Williams, D)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. C/O PIZZOLA, Defendants. / Plaintiff is a state prisoner proceeding pro se with a civil rights action. Pending before the court are several of plaintiff's motions. First, plaintiff has filed a motion to compel. Therein, he claims that he served defendant Pizzola with discovery requests on October 27, 2009, but has not received any responses thereto. Defendant Pizzola had not opposed or otherwise responded to the motion and on February 24, 2010, the court ordered defense counsel to file an opposition or a statement of non-opposition to plaintiff's motion. On March 17, 2010, defense counsel timely filed and served a declaration in which he explains that he fell ill for an extended period of time and was unable to adequately prepare discovery responses in this matter. Defense counsel also attached to his declaration defendant Pizzola's responses to plaintiff's interrogatories, requests for ///// 1 ORDER IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA RODNEY KARL BLACKWELL, Plaintiff, No. CIV S-09-0535 GEB DAD P

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admission, and requests for production of documents. Under these circumstances, the court will deny plaintiff's motion to compel as moot.1 Plaintiff has also filed a motion to compel defendant Pizzola to comply with "certification of documentation." In support of his motion, plaintiff cites Local Rule 183 and Rule 4 of the Federal Rules of Civil Procedure. Plaintiff has also attached to his motion copies of declarations from fellow inmates in which they declare that they have or have not been able to retain possession of certain personal property because of their race. After reviewing plaintiff's submissions and the authority he cites therein, it remains unclear to the court what the basis of plaintiff's motion is or what relief he seeks. Accordingly, the court will deny plaintiff's motion without prejudice. In accordance with the above, IT IS HEREBY ORDERED that: 1. Plaintiff's motion to compel (Doc. No. 28) is denied as moot; 2. Plaintiff's motion to compel the defendant to comply with certification of documentation (Doc. No. 31) is denied without prejudice; and 3. Plaintiff's request for judgment in his favor (Doc. No. 38) is denied. DATED: April 14, 2010.

DAD:9 black0535.mtc

Plaintiff filed a "reply" to the court's February 24, 2010 order requiring defense counsel to file an opposition or a statement of non-opposition to plaintiff's motion to compel. Therein, plaintiff claims that defense counsel failed to respond to the court's order and that the court should grant judgment in plaintiff's favor as a result. As noted above, defense counsel timely filed and served a response to the court's order. Accordingly, the court will deny plaintiff's request for judgment is his favor. See Fed. R. Civ. P. 55; Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986) (the court may enter a default judgment against a party if the party fails to plead or otherwise defend). 2

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