Thorns v. Shannon et al

Filing 20

ORDER signed by Magistrate Judge Dale A. Drozd on 6/8/12 plaintiffs March 12, 2012 motion to compel discovery 15 is DENIED; Defendants May 10, 2012 motion to modify the scheduling order 18 is GRANTED; The May 11, 2012 deadline for the filing of pretrial motions, except motions to compel, is vacated and reset to 30 days from the date of this order.(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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BRUCE THORNS,

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Plaintiff,

No. 2:11-cv-01826-MCE-DAD P

vs.
S. SHANNON, et al.,
Defendants.

ORDER

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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to

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42 U.S.C. § 1983. Before the court are plaintiff’s motion to compel and defendants’ motion to

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modify the scheduling order.

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PLAINTIFF’S MOTION TO COMPEL
I. Plaintiff’s Arguments
In his motion to compel, plaintiff asserts that defendants have failed to respond to

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his request for production of documents which was delivered to prison staff on November 16,

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2011. (Doc. No. 15 at 1.) Plaintiff provides a declaration under penalty of perjury in which he

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asserts that the envelope containing this discovery request was addressed to Deputy Attorney

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General Jeffrey Steele and that the envelope was sealed in the presence of correctional officer

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Zerr and given to him for mailing. (Id. at 10.) Therein, according to plaintiff, he made nine
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production requests. However, in his pending motion plaintiff seeks an order compelling the

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production of only the following three items: the written policies concerning coverings on cell

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windows (request number 3), written policies concerning outdoor exercise (requests number 6),

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and “[a]ll video surveillance tapes on C-yard from all cameras from the dates of September 7,

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2010 to September 7, 2011” (request number 8). (Id. at 1-2.) Plaintiff argues that his request for

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production of documents was timely because it was given to officer Zerr on November 16, 2011

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and discovery did not close in this action until February 17, 2012. (Id. at 2.)

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II. Defendants’ Opposition

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Defendants oppose the motion to compel, arguing that it is untimely and that

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plaintiff’s request for production of documents was never served on defendants. (Doc. No. 16 at

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1-2.) According to defendants’ counsel, during his deposition on February 9, 2012, plaintiff

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stated that he had not received documents in response to his request for production of documents.

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(Id. at 2 & Doc. 16-4 at 3.) Defendants’ counsel informed plaintiff at that time that although

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defendants had received plaintiff’s interrogatories and request for admissions, they had not been

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served with a request for production of documents. (Doc. 16 at 2 & Doc. 16-4 at 3-4.) In

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addition, defense counsel pointed out to plaintiff that his proof of service noted only the service

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of interrogatories and request for admissions. (Id.) Defendants argue that plaintiff initially stated

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that the discovery requests were sent together, but now claims that he sent the request for

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production of documents separately. (Doc. No. 16 at 2 & Doc. 16-4 at 4.) In his declaration,

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defense counsel states that plaintiff’s interrogatories and requests for admission were served on

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November 30, 2011, and that timely responses were served on plaintiff. (Doc. No. 16-1 at 1-2.)

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Defendants also submit the declaration of Stacy Vue, a technician with the office of the litigation

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coordinator. (Doc. No. 16-2.) According to Ms. Vue, she reviewed the mail log and it reflects

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that plaintiff sent legal mail to the Office of the Attorney General on December 1, 2011 but there

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is no record that plaintiff sent mail to the Attorney General’s Office any other time in November

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2011. (Id. at 1-2.)
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III. Plaintiff’s Reply

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In his reply, plaintiff acknowledges that the deadline for filing his motion to

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compel was February 17, 2012, but explains that he “misread the court’s order, believing that he

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had until May 11, 2012.” (Doc. No. 17 at 3.) Plaintiff continues to assert that he gave his legal

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mail containing the request for production of documents to correctional staff on November 16,

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2011.

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IV. Analysis

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As noted by the parties, the court’s discovery and scheduling order was filed on
November 3, 2011, and set February 17, 2012 as the deadline for conducting discovery in this

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action. (Doc. No. 13 at 6.) The motion to compel will be denied for the following reasons.

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First, although plaintiff is proceeding without counsel, plaintiff is required to comply with the

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court’s orders and the deadlines set forth therein. Plaintiff’s explanation that he misunderstood

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the court’s scheduling order is unpersuasive. Plaintiff’s motion to compel is untimely. Second,

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plaintiff failed to act diligently. At the latest, by February 9, 2012, he was aware that no

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production of documents had been made by defendants. Nevertheless, plaintiff did not seek a

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court order extending the time to conduct discovery or to file a timely motion to compel. Third,

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in any event the court is not persuaded that plaintiff’s request for production of documents seeks

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relevant evidence or that plaintiff is unable to obtain the documents in question without a court

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order. In his request for production and his motion to compel plaintiff seeks policies concerning

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cell windows and outdoor exercise. However, there is no indication that such regulations and

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policies are unavailable at the prison law library. As to plaintiff’s request for the production of

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“[a]ll video surveillance tapes on C-yard from all cameras from the dates of September 7, 2010 to

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September 7, 2011[,]” the discovery request appears to be overly broad and irrelevant to

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plaintiff’s claims in this action.

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MOTION TO MODIFY THE SCHEDULING ORDER

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Defendants seek an additional thirty days to file dispositive motions. The current

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deadline is May 11, 2012. Defendants explain that there is a pending class action involving the

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same issues as those presented in this case, that counsel has had to absorb the cases of other

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attorneys who have retired, transferred or taken leave of absence in the past several months, and

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that the interest of justice would be best served by allowing defendants to file a summary

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judgment motion because the material facts in this case are largely undisputed.

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Plaintiff opposes the motion and argues that defendants have had sufficient time

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to file a summary judgment motion. (Doc. No. 19 at 2.) Plaintiff contends that material facts in

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this case are in fact disputed. (Id. at 3.)

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The court is persuaded that defendants’ request is made in good faith. Moreover,

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it is at least possible that a motion for summary judgment could result in the disposition of this

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action without the necessity of a trial. Therefore, defendants’ motion to modify the scheduling

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order will be granted.

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CONCLUSION

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s March 12, 2012 motion to compel discovery (Doc. No. 15) is

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denied;

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2. Defendants’ May 10, 2012 motion to modify the scheduling order (Doc. No.
18) is granted;

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3. The May 11, 2012 deadline for the filing of pretrial motions, except motions to

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compel, is vacated and reset to thirty days from the date of this order.

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DATED: June 8, 2012.

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thor1826.mtc.sched

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