Jones v. David, et al

Filing 75

ORDER signed by Magistrate Judge Carolyn K. Delaney on 8/17/12 DENYING 72 Motion to Compel. (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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MALIK JONES,
Plaintiff,

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vs.

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No. 2:09-cv-3174 MCE CKD P

A. DAVID, et al.,

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Defendants.

ORDER
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Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed this

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civil rights action seeking relief under 42 U.S.C. § 1983. Pending before the court is plaintiff’s

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July 12, 2012 motion to compel discovery as to defendant David. (Dkt. No. 72.) David has filed

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an opposition, and plaintiff has filed a reply. (Dkt. Nos. 73, 74.)

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The April 3, 2012 scheduling order in this action states that “[a]ll requests for

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discovery . . . shall be served not later than sixty days prior to” June 29, 2012. (Dkt. No. 64.)

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On May 29, 2012, one month after the deadline, plaintiff served requests for interrogatories on

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defendant David. (Dkt. No. 73 at 5 (Decl. of D. Chinn).) On June 26, 2012, defendant served

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responses objecting that plaintiff’s requests were untimely served. (Dkt. No. 72 at 5-8; Decl. of

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D. Chinn.) On July 9, 2012, plaintiff constructively filed the instant motion to compel, which

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was docketed three days later. (Dkt. No. 72.)
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In his motion, plaintiff states that he “inadvertently miscalculated” the discovery

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deadline, causing him to serve discovery requests on David one month late. (Dkt. No. 72 at 3.)

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In his reply, he asserts that “ongoing retaliation and reprisals” by prison officials, coupled with

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“the large workload of civil actions plaintiff is currently litigating,” caused him to miscalculate

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the deadline. (Dkt. No. 74 at 8.) Defendant argues that, if plaintiff’s motion is construed as a

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motion to modify the schedule under Rule 16 of the Federal Rules of Civil Procedure, plaintiff

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has failed to show the requisite good cause. (Dkt. No. 73 at 2-3.)
Despite his pro se status, plaintiff is not entitled to any latitude for the

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untimeliness. See Fingerhut Corp. v. Ackra Direct Mktg. Corp., 86 F.3d 852, 856–57 (8th Cir.

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1996) (stating that pro se representation does not excuse a litigant from complying with court

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orders); Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir. 1991) (explaining that courts should

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liberally construe pro se plaintiffs’ legal arguments and strictly construe their compliance with

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procedural requirements); see also Carter v. Comm’r of Internal Revenue, 784 F.2d 1006,

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1008–09 (9th Cir. 1986) (noting that pro se plaintiffs must follow the rules of the court). Here,

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plaintiff admittedly served discovery requests on defendant David thirty days late.

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A scheduling order may be modified upon a showing of good cause. Fed. R. Civ.

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P. 16(b)(4). Good cause exists when the moving party demonstrates he cannot meet the deadline

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despite exercising due diligence. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th

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Cir.1992). Setting aside his vague and conclusory statement that prison officials somehow

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impeded him, plaintiff has not shown that he was diligent in preparing and serving discovery

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requests on defendant David. The fact that plaintiff was litigating multiple cases suggests a

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reason why he was not diligent, but does not itself show diligence. As plaintiff has not satisfied

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the good cause requirement for modification of the schedule, his motion to compel will be

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denied.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s July 12, 2012 motion to

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compel (Dkt. No. 72) is denied.
Dated: August 17, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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jone3174.mtc

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