Asberry v. Cate et al

Filing 69

ORDER signed by Magistrate Judge Kendall J. Newman on 9/17/12 ORDERING that Plaintiffs motion for further discovery and an extension of time 67 is DENIED; Plaintiffs motion for sanctions 68 , is DENIED; and Prison officials, particularly p rison library staff, are informed that the next deadline in this action is the dispositive motion deadline, November 2, 2012; in addition, opposition to a dispositive motion must be filed and served within 21 days after service of the motion.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TONY ASBERRY,

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Plaintiff,

No. 2:09-cv-01494 MCE KJN P

vs.
MATHEW CATE, et al.,
Defendants.

ORDER
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Plaintiff moves to compel further discovery, moves for sanctions against

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defendants for the alleged violation of this court’s discovery order filed August 7, 2012, and

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requests additional authority to use the prison law library, e.g. by this court’s extension of the

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discovery deadline, which expired on August 10, 2012.

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Plaintiff contends that defendants have intentionally withheld relevant evidence

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by failing to produce any record of “housing rosters” pertinent to the allegations of plaintiff’s

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complaint. However, review of the court’s order (Dkt. No. 66), and plaintiff’s instant exhibit

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(Dkt. No. 68 at 8), indicates that defendants fully complied with the court’s instructions -- by

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forwarding plaintiff’s production request to the litigation coordinator for California State Prison-

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Sacramento (“CSP-SAC”), who in turn provided a declaration detailing her attempts to locate

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and produce all responsive documents, particularly housing rosters. (See Dkt. No. 66 at 3; Dkt.
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No. 68 at 8.) The resulting declaration of CSP-SAC Litigation Coordinator Linda T. Young

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provides that there are, apparently, no responsive documents for the relevant period.

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Plaintiff’s contention that the Litigation Coordinator’s efforts were a “wild goose

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chase,” and a deliberate effort to hide relevant evidence from plaintiff, is without apparent

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support. Defendants, like plaintiff, will be obliged to abide by their discovery responses as this

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case progresses; the court cannot order defendants to produce documents they say they do not

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have. Therefore, plaintiff’s motions for further discovery and for sanctions are denied.

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Plaintiff also contends that he requires additional opportunities to use the services
of the prison law library. Plaintiff recites a very limited library schedule, and notes that the

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expiration of the discovery deadline in this case has rendered plaintiff unable to obtain priority

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assignment to the library. Plaintiff is currently incarcerated at the Donovan Correctional Facility,

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in San Diego. Correctional officials are hereby informed that, while the discovery deadline

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expired in this action, the dispositive motion filing deadline is November 2, 2012; the

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preparation of, and/or response to, a dispositive motion, generally requires substantial research,

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writing, and use of copying services.

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For the foregoing reasons, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for further discovery and an extension of time (Dkt. No. 67),

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is denied;

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2. Plaintiff’s motion for sanctions (Dkt. No. 68), is denied; and

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3. Prison officials, particularly prison library staff, are informed that the next

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deadline in this action is the dispositive motion deadline, November 2, 2012; in addition,

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opposition to a dispositive motion must be filed and served within 21 days after service of the

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motion. See E.D. Cal. L.R. 230(l).

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SO ORDERED.

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DATED: September 17, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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asbe1494.disc.mtn

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