Matthew v. Lahey et al

Filing 95

ORDER signed by Magistrate Judge Kendall J. Newman on 7/3/2012 DENYING plaintiff's 91 motion to compel. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSEPH B. MATTHEWS,

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Plaintiff,

No. 2:09-cv-2415 GEB KJN P

vs.
LAHEY, et al.,
Defendants.

ORDER
/

Plaintiff is a state prisoner proceeding without counsel. On June 1, 2012, plaintiff

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filed a motion to compel discovery. (Dkt. No. 91.) Plaintiff seeks to compel answers to

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interrogatories, set four, propounded to defendant Basi. Plaintiff states he submitted the

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interrogatories on May 30, 2012, but did not receive the answers.

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Defendants oppose plaintiff’s motion, claiming that on May 29, 2012, responses

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to plaintiff’s interrogatories, set four, were served on plaintiff, but noted that defendant Basi’s

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verification would follow. On June 5, 2012, defendants sent plaintiff a letter, enclosing

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defendant Basi’s verification. Plaintiff did not file a reply.

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By order filed January 26, 2012, the scheduling order was revised, and the

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discovery deadline was extended to April 9, 2012. (Dkt. No. 89.) Thus, all motions necessary to

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compel discovery were to be filed by April 9, 2012.
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The dates contained within plaintiff’s motion to compel are not clear. Although

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the motion was signed and dated by plaintiff on May 30, 2012, he states he submitted the

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interrogatories to defendant Basi on May 30, 2012. (Dkt. No. 91 at 1.) However, the appended

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interrogatories are signed and dated by plaintiff on March 21, 2012. (Dkt. No. 91 at 4.) The

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proof of service form, appended at the end of plaintiff’s filing, does not contain the name of the

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document served, but is signed and dated by plaintiff on May 5, 2012. (Dkt. No. 91 at 5.) The

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unidentified document was served on the United States District Court. (Dkt. No. 91 at 6.)

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In any event, whether the motion to compel was presented to prison officials for
mailing1 on May 5, 2012, or May 30, 2012, it was untimely filed, because all motions to compel

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were to be filed by April 9, 2012. Furthermore, defendant Basi has provided copies of the

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responses provided, as well as the later submitted verification. Plaintiff has filed nothing further

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to rebut defendant’s June 22, 2012 filing.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s June 1, 2012 motion to

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compel discovery (dkt. no. 91) is denied.

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DATED: July 3, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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matt2415.mtc

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See Houston v. Lack, 487 U.S. 266, 275-76 (1988) (pro se prisoner filing is dated from
the date prisoner delivers it to prison authorities).
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