Nailing v. Fosterer et al

Filing 100

ORDER signed by Magistrate Judge Craig M. Kellison on 02/28/13 denying 98 Motion to modify the schedule and denying 99 Motion for Sanctions. (Plummer, 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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XAVIER DMETRI NAILING,

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No. 2:09-CV-2475-MCE-CMK

Plaintiff,
vs.

ORDER

B.D. FOSTERER, et al.,
Defendants.
/
Plaintiff, a former prisoner proceeding pro se, brings this civil rights action

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pursuant to 42 U.S.C. § 1983. Pending before the court are: (1) plaintiff’s motion to modify the

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schedule (Doc. 98); and (2) plaintiff’s motion for sanctions (Doc. 99).

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In his motion to modify the schedule, plaintiff seeks to re-open discovery to allow

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him to re-file a motion to compel. Plaintiff’s original motion to compel was addressed in the

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court’s January 17, 2013, order which stated:

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Pending before the court is plaintiff’s document entitled
“Notice Motion of Plaintiff’s Request of All Central Files File H57864,
P08725 and G25239 by Defendants’ Counsel Daniel Ikeri; Request for
Document Production” (Doc. 94) To the extent this document is a request
for discovery, plaintiff is advised that discovery requests should not be
filed except in the context of a motion to compel. To the extent plaintiff’s
document is a motion to compel, it is procedurally defective. In the
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court’s August 8, 2012, scheduling order, plaintiff was informed that this
case was proceeding under the local rules as a civil pro se (non-prisoner)
case because plaintiff is no longer incarcerated. Plaintiff was also
informed that all motions pertaining to discovery must be noticed to be
heard by December 14, 2012. Plaintiff’s motion does not notice any
hearing date whatsoever. Because plaintiff’s motion was not noticed for a
hearing prior to or on December 14, 2012, plaintiff has failed to comply
with the court’s August 8, 2012, order.

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Plaintiff argues in his motion to modify the schedule that discovery should, in effect, be re-

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opened and extended so that he may re-file his motion to compel free of the procedural defects

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identified above. The court finds that this argument fails to demonstrate good cause for

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modification of the schedule because plaintiff has not explained why he initially failed to notice

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his motion to compel to be heard by the December 14, 2012, deadline.
In his motion for sanctions, plaintiff argues that defendants’ failure to respond to

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his discovery request is sanctionable conduct. Again, this motion relates to plaintiff’s original

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motion to compel addressed in the court’s January 17, 2013, order. And again, plaintiff’s current

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motion suffers from the same procedural defects – it is an untimely discovery motion and it is not

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properly noticed pursuant to the local rules governing civil pro se (non-prisoner) cases.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s motion to modify the schedule (Doc. 98) is denied; and

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2.

Plaintiff’s motion for sanctions (Doc. 99) is denied.

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DATED: February 28, 2013
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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