Baker v. Solano County Jail et al

Filing 57

ORDER to SHOW CAUSE signed by Magistrate Judge Kendall J. Newman on 5/16/2011 ORDERING that w/in 14 days, pltf shall file his discovery responses w/ the court or show cause why dfts' motion to dismiss this action should not be granted.(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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JERRY W. BAKER,

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Plaintiff,

No. 2:10-cv-1208 FCD KJN P

vs.
C/O J. SMITH, et al.,
Defendants.

ORDER TO SHOW CAUSE
/

Plaintiff is a state prisoner proceeding without counsel with a civil rights action

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pursuant to 42 U.S.C. § 1983. On April 13, 2011, defendants filed a motion to dismiss this

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action as a sanction for plaintiff’s failure to participate in discovery and failure to comply with a

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court order pursuant to Rules 37(d) and 41(b) of the Federal Rules of Civil Procedure.

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Defendants state they have not yet received plaintiff’s discovery responses, despite plaintiff’s

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claim that the discovery responses were mailed on April 7, 2011. Indeed, plaintiff recently wrote

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a letter to counsel for defendants, dated April 28, 2011, stating:

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if you want another copy [of the discovery responses] you will send
me $40.00 to do so. Or you can be smart & I will agree to settle
this case out of court for $35,000.00. Also, your request for a copy
is unreasonable, due to my confinement, I will not be able to do so
by 5-5-11. I can’t just walk to the copy machine.
/s/ Jerry W. Baker

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(Case No. 2:10-cv-1811 KJN P, Dkt. No. 29-4 at 2.)1

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As plaintiff was informed on March 14, 2011, plaintiff risks dismissal of this

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action if he fails to cooperate in discovery. Although pro se pleadings are construed liberally, pro

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se litigants are bound by the rules of procedure. See Ghazali v, Moran, 46 F.3d 52, 54 (9th Cir.

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1995) (dismissing pro se prisoner’s case for failure to comply with local rule by filing opposition

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brief), cert. denied, 516 U.S. 838 (1995); Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir.

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1990) (entry of default was justified sanction based on repeated and inexcusable obstructions of

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discovery).

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In an abundance of caution, plaintiff will be provided one final opportunity to

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produce the discovery responses allegedly mailed on April 7, 2011. Therefore, plaintiff shall file

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his discovery responses with the court within fourteen days from the date of this order. Failure to

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timely file the discovery responses will result in a recommendation that the district court grant

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defendants’ motion to dismiss this action as a sanction based on plaintiff’s failure to cooperate in

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the discovery process.

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Accordingly, IT IS HEREBY ORDERED that within fourteen days from the date

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of this order, plaintiff shall file his discovery responses with the court or show cause why

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defendants’ motion to dismiss this action should not be granted.

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DATED: May 16, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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bake1208.osc

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In the May 9, 2011 motion to compel filed in Case No. 2:10-cv-1811 KJN P,
defendants’ counsel provided a copy of plaintiff’s April 28, 2011 letter, which referenced two
case numbers: 2:10-cv-1208 FCD KJN P and 2:10-cv-1811 KJN P. (Dkt. No. 29-4.)