Williams v. Huffman et al

Filing 63

ORDER signed by Magistrate Judge Kendall J. Newman on 02/07/12 ordering the 01/12/12 order to show cause is discharged. Plaintiff's 12/05/11 motion to compel 41 is denied without prejudice. (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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MARIO WILLIAMS,

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Plaintiff,

No. 2:11-cv-0638 GEB KJN P

vs.
JASON T. HUFFMAN, et al.,

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Defendants.

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ORDER
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On December 1, 2011,1 plaintiff filed a motion to compel defendants to respond to

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discovery requests propounded on October 14, 2011. On January 12, 2012, the court ordered

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defendants to show cause why plaintiff’s motion should not be granted based on defendants’

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failure to file an opposition to the motion. On January 13, 2012, defendants filed a response to

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the order to show cause, and an opposition to the motion to compel. Good cause appearing, the

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order to show cause is discharged.

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Defendants contend that under the court’s scheduling order, discovery responses

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are due 45 days after the date of service; thus, their responses were not due until November 28,

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Plaintiff’s motion was signed, and presented to prison officials for mailing, on
December 1, 2011. 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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2011. Defendants provide a declaration of service by mail indicating plaintiff was served with

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defendants’ discovery responses on November 28, 2011. (Dkt. No. 55-3 at 21.)

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In this court’s October 4, 2011 discovery and scheduling order, the court ordered

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that “[r]esponses to written discovery requests shall be due forty-five days after the request is

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served.” (Dkt. No. 31 at 5.) The discovery requests at issue here were propounded on October

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14, 2011. Forty-five days from October 14, 2011, is November 28, 2011. The response deadline

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is further extended by three days to allow for service by mail. See Fed. R. Civ. P. 6(d);

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5(b)(2)(C). Thus, the three days for mailing extended the deadline through December 1, 2011.

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Therefore, plaintiff’s December 1, 2011 motion to compel was prematurely filed.

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In his motion, plaintiff claims defendants failed to respond. However, since the filing of

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defendants’ opposition, plaintiff has not filed a reply, or otherwise responded, to defendants’

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opposition.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The January 12, 2012 order to show cause is discharged; and

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2. Plaintiff’s December 5, 2011 motion to compel (dkt. no. 41) is denied without

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prejudice.

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DATED: February 7, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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will0638.mtc

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