Boston v. Garcia et al

Filing 68

ORDER signed by Magistrate Judge Dale A. Drozd on 11/6/2012 ORDERING that defendants' 59 amended motion for a protective order is DENIED; the defendants shall serve responses to plaintiff's second set of discovery requests on or before 1 1/21/2012; motions to compel, if any, due on or before 12/12/2012; all pretrial motions, except motions to compel discovery, due on or before 1/9/2013; pretrial conference and trial dates will be set as appropriate; plaintiff's 56 motion for reconsideration, which is construed as a motion for a modification of the scheduling order, and 64 motion for an extension of time are DENIED AS MOOT; plaintiff's 55 motion to exceed the copy limit is GRANTED IN PART; and plaintiff's 62 motion to have the clerk serve defendants and provide plaintiff free copies of filings is DENIED. (See Order for Details) (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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ANDRE’ BOSTON,
Plaintiff,

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vs.

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No. 2: 10-cv-1782 KJM DAD P

V. GARCIA, et al.,
Defendants.

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ORDER
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Plaintiff is a state prisoner proceeding pro se with a civil rights complaint filed

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pursuant to 42 U.S.C. § 1983. Presently before the court are defendants’ motion for a protective

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order, plaintiff’s motions for an extension of time for discovery, plaintiff’s motion to exceed the

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copy limit and plaintiff’s motion to have the clerk serve defendants and provide plaintiff with a

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copy of his pleadings. For the following reasons, plaintiff’s motion for a protective order is

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denied. The court will also modify the schedule in this case making plaintiff’s motions for an

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extension of time moot. Furthermore, the court will grant in part plaintiff’s motion to exceed the

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copy limit and deny his motion to have the clerk serve defendants and provide plaintiff a copy of

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his own pleadings.

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I. BACKGROUND
On May 4, 2012, the court issued a discovery and scheduling order in this case.

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The parties were given until August 24, 2012 to conduct discovery. Responses to discovery

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requests were due forty-five days after the request was served. All motions to compel discovery

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were required to be filed by August 24, 2012. All pretrial motions, except motions to compel

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discovery were required to be filed on or before November 16, 2012. (See Dkt. No. 42 at p. 6.)

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On July 17, 2012, defendants filed a motion for an extension of time to respond to

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plaintiff’s discovery requests. (See Dkt. No. 47.) Plaintiff served his first request for the

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production of documents on May 24, 2012. Defense counsel stated that he was not aware until

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July 10, 2012, when he received a letter from plaintiff, that plaintiff had served discovery

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requests on defendants. According to defense counsel, he “determined that the discovery

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requests were present within the case-file, but, due to inadvertence and excusable neglect, were

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not provided to Defense counsel to be calendared.” (See id. at p. 2.)

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Pursuant to the May 4, 2012 discovery and scheduling order, defendants had

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forty-five days to respond to plaintiff’s May 24, 2012 discovery requests. Because defendants

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did not respond within forty-five days, the matters in the requests would be deemed admitted.

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See FED . R. CIV . P. 36(a)(3). Defendants subsequently moved under Federal Rule of Civil

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Procedure 36(b) for relief which permitted admissions to be withdrawn “if it would promote the

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presentation of the merits of the action and if the court is not persuaded that it would prejudice

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the requesting party in maintaining or defending the action on the merits.”

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Plaintiff eventually received defendants’ responses to his May 24, 2012 discovery

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requests on August 20, 2012. On August 29, 2012, Plaintiff requested an extension of time to the

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discovery period because he had only received defendants’ responses to his first discovery

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requests four days prior to the initial discovery cutoff date of August 24, 2012. Plaintiff initially

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requested a thirty-day extension of time to the discovery period, but subsequently requested a

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ninety-day extension in that regard. (See Dkt. Nos. 50 & 51.) The court subsequently granted an
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extension of time to the discovery period until October 9, 2012. Pursuant to that order modifying

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the scheduling order, all pretrial motions, except motions to compel discovery were due on or

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before November 30, 2012. (See Dkt. No. 53.) On September 6, 2012, plaintiff served a second

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set of admissions on defendants requesting responses.

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II. MOTION FOR A PROTECTIVE ORDER

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On October 18, 2012, defendants filed a motion for a protective order seeking to

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protect them from having to respond to plaintiff’s second set of discovery requests. Defendants

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subsequently filed an amended motion for a protective order on October 22, 2012. Defendants

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sole argument in support of their amended motion for a protective order is that plaintiff’s

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discovery requests are untimely because they were not served at least sixty days before the

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discovery deadline established by the May 4, 2012 discovery and scheduling order. Since

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plaintiff’s second requests were served on September 6, 2012, defendants claim that they should

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not be required to respond thereto because their response was due forty-five days after that date

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which is beyond the current discovery deadline cutoff of October 9, 2012.

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“Upon motion by a party or by the person from whom discovery is sought . . ., and

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for good cause shown, the court . . . may make any order which justice requires to protect a party

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from annoyance, embarrassment, oppression, or undue burden . . . .” FED . R. CIV . P. 26(c).

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Defendants assert that they would be unnecessarily burdened by having to respond to plaintiff’s

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second set of discovery requests. While certainly responding to the second set of discovery

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requests would be burdensome on defendants, in this case, the court will nonetheless deny

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defendant’s motion for a protective order.

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Defendants are technically correct that the current discovery deadline of October

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9, 2012 meant that their responses to plaintiff’s second set of discovery requests were due after

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the discovery cutoff. Nevertheless, the court notes that the September 2012 service of plaintiff’s

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second set of discovery requests was due in part to defendants taking almost three months to

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respond to plaintiff’s first set of discovery requests. Defendants admitted they were neglectful in
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failing to respond to plaintiff’s first set of discovery requests. (See Dkt. No. 47.) Nevertheless,

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the court excused this neglect and granted defendants’ motion for relief under Federal Rule of

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Civil Procedure 36(b). (See Dkt. No. 53.)

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It is worth noting that even after discovering on July 10, 2012 that plaintiff had

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served his first set of discovery requests on May 24, 2012, defendants still took forty additional

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days to serve their responses to those requests on August 20, 2012. Subsequently, within three

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weeks thereafter, plaintiff served his second set of discovery requests on defendants on

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September 6, 2012. Defendants initial neglect ultimately caused it to be necessary to extend the

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August 24, 2012 discovery deadline which gave plaintiff time to file any discovery motions with

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respect to his first set of discovery requests.

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In light of the procedural history of this case, including defendants’ admitted

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neglect during the course of discovery, the court finds that good cause has not been shown by

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defendants as to why they should not be required to respond to plaintiff’s second set of discovery

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requests. Therefore, defendants’ amended motion for a protective order will be denied. The

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court will again modify the schedule currently in place and provide defendants a modest period

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of time to respond to plaintiff’s second discovery requests.1

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III. MOTION TO EXCEED COPY LIMIT

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Plaintiff is currently incarcerated in the Northern Nevada Correctional Center in

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Carson City, Nevada. On October 9, 2012, plaintiff filed a motion to exceed the copy limit

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currently in place by the Nevada Department of Corrections (NDOC). Plaintiff asserts that he

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has exceeded the $100 limit put in place by NDOC for legal copies and requests an additional

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$500.

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In light of this modification of the scheduling order, plaintiff’s motion for
reconsideration (Dkt. No. 56.), which is construed as a motion for an extension of the discovery
period and plaintiff’s motion for an extension of time to complete discovery (Dkt. No. 64.) will
be denied as moot.
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Petitioner does not have the right to free photocopying. See Johnson v. Moore,

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948 F.2d 517, 521 (9th Cir. 1991); Sands v. Lewis, 886 F.2d 1166, 1169 (9th Cir. 1989) (stating

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“numerous courts have rejected any constitutional right to free and unlimited photocopying”).

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NDOC Administrative Regulation 722 (“Inmate Legal Access”) provides that “[c]opies of legal

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documents requested by inmates may be made for a nominal fee.” NDOC Administrative

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Regulation § 722. Inmates can only accrue a maximum of $100 debt for copy work expenses for

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all cases, not per case. See id. The regulation also provides that carbon paper shall be made

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available to any inmate who requests it for legal purposes. See id.

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Plaintiff states in his motion that he has exceeded his prison copy limit and has

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attached a copy of his inmate account statement which also indicates that he has exceeded the

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$100 threshold. A court can order a prison to provide additional photocopying when the

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petitioner demonstrates that an increase is necessary for an inmate to provide copies to the court

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and other parties. See Allen v. Clark County Detention Ctr., Civ. No. 10–857, 2011 WL 886343,

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at *2 (D. Nev. Mar. 11, 2011). In this case, based on plaintiff’s lack of funds and the current

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state of the case in which dispositive motions are not yet due, the court finds that plaintiff has

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demonstrated a need to have his prison copy work limit increased. However, the court will not

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grant plaintiff’s request of an additional $500 debt limit. Instead, the court’s order will permit

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plaintiff an additional $50. Plaintiff is warned however, that he should use his copying privileges

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sparingly. For example, plaintiff should refrain from filing duplicative motions. Furthermore,

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plaintiff should take full use of carbon paper to duplicate documents when possible as further

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requests for an increase in plaintiff’s allotment will not be looked upon favorably.
IV. MOTION TO HAVE CLERK SERVE DEFENDANTS AND FOR COPIES

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Finally, plaintiff requests that the court order the clerk to serve various filings on

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the defendants because he has exhausted his legal copy limit and requests that the court provide

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him with copies of his own filings. This motion will be denied. The court notes that it does not

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typically provide free copies of documents to the parties nor does it order the Clerk of Court to

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serve responses/motions on defendants.

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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED THAT:

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1. Defendants’ amended motion for a protective order (Dkt. No. 59.) is DENIED;

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2. The defendants shall serve responses to plaintiff’s second set of discovery

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requests on or before November 21, 2012;

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3. Motions to compel arising from plaintiff’s second set of discovery requests, if
any, shall be filed and served on or before December 12, 2012;

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4. All pretrial motions, except motions to compel discovery arising from

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plaintiff’s second set of discovery requests, shall be filed on or before January 9, 2013. Motions

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shall be briefed in accordance with paragraph 7 or this court’s order filed April 20, 2011;

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5. Pretrial conference dates and trial dates will be set, as appropriate, following
adjudication of any dispositive motion, or the expiration of time for filing such motion;

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6. In light of the modification of the schedule as outlined above, plaintiff’s

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motion for reconsideration (Dkt. No. 56.), which is construed as a motion for a modification of

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the scheduling order and motion for an extension of time (Dkt. No. 64.) are DENIED AS MOOT;

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and

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7. Plaintiff’s motion to exceed the copy limit (Dkt. No. 55.) is GRANTED IN

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PART as follows: the Nevada Department of Corrections shall increase plaintiff’s prison copy

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work limit so that he is allotted an additional $50.00 worth of copying privileges/debt limit; and

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8. Plaintiff’s motion to have the clerk serve defendants and provide plaintiff free

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copies of filings (Dkt. No. 62.) is DENIED.

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DATED: November 6, 2012.

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DAD:dpw

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bost1782.protorder

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