Jones v. Kuppinger et al

Filing 52

ORDER signed by Magistrate Judge Allison Claire on 6/10/15 ORDERING that plaintiffs motion to compel discovery and for sanctions, ECF No. 50 , is denied. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HENRY A. JONES,

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No. 2:13-cv-0451 WBS AC P

Plaintiff,
v.

ORDER

P. KUPPINGER, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights

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action filed pursuant to 42 U.S.C. § 1983. This action proceeds on plaintiff’s Second Amended

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Complaint, ECF No. 30, on the following Eighth Amendment claims against defendants

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Kuppinger and Moore: (1) against defendant Kuppinger, for deliberate indifference to plaintiff’s

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serious medical needs and excessive force; and (2) against defendant Moore for deliberate

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indifference to plaintiff’s serious medical needs and failure to protect plaintiff from excessive

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force. See ECF No. 46. A Discovery and Scheduling Order issued on March 13, 2015, setting a

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discovery deadline of July 17, 2015, and an October 16, 2015 deadline for filing dispositive

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motions. See ECF No. 49.

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Presently pending is plaintiff’s motion to compel discovery and request for sanctions, filed

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May 18, 2015. ECF No. 50. Defendants oppose the motion as prematurely filed and moot. ECF

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No. 51. For the reasons that follow, plaintiff’s motion is denied as moot.
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When plaintiff filed his discovery motion on May 14, 2015,1 he had received no responses

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from defendants to his discovery requests, specifically: Plaintiff’s Interrogatories to Defendant

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Kuppinger, Set One, Nos. 1-7 (Pl. Ex. A); Plaintiff’s Interrogatories to Defendant Moore, Set

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One, Nos. 1-8 (Pl. Ex. B); Plaintiff’s First Request for Production of Documents to Defendant

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Kuppinger (Pl. Ex. C); Plaintiff’s First Request for Production of Documents to Defendant Moore

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(Pl. Ex. D).

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Responses to written discovery requests in this action are due within 45 days after service

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of the requests. See ECF No. 49 at 4. Plaintiff avers that he served each of the above requests on

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the same date, March 27, 2105. ECF No. 50 at 1. Review of the requests indicates that on March

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27, 2015, plaintiff dated and signed each request and/or the respective certificate of service.2

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Normally, this date would control the “service date” of plaintiff’s requests. See n.1, supra. So

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construed, responses were due within 45 days, plus three additional days for responding to

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matters served by mail,3 or by May 14, 2015. Defendants served their responses by mail one day

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later, on May 15, 2105.

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However, defendants assert that their responses were not yet due when plaintiff filed his

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motion on May 14, 2015. Defendants rely on the “service dates” written and initialed by prison

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officials on the backs of the envelopes containing plaintiff’s discovery requests. Title 15, section

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3142, California Code of Regulations, sets forth the procedures for processing an inmate’s

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outgoing confidential mail. An inmate must present to designated staff the contents of his mail in

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an unsealed envelope for inspection. “If no prohibited material is discovered, the contents shall

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be returned to the envelope and sealed. Staff shall place their signature, badge number and date

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across the sealed area on the back of the envelope. Staff shall then deposit the confidential mail

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The filing dates referenced herein are based on the prison mailbox rule, pursuant to which a
document is deemed served or filed on the date a prisoner signs the document and gives it to
prison officials for mailing. See Houston v. Lack, 487 U.S. 266 (1988) (establishing prison
mailbox rule); Campbell v. Henry, 614 F.3d 1056, 1059 (9th Cir. 2010) (applying the mailbox
rule to both state and federal filings by incarcerated inmates).
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See ECF No. 50 at 7-8 (Pl. Ex. A); ECF No. 50 at 12, 15 (Pl. Ex. B); ECF No. 50 at 18-9 (Pl.
Ex. C); ECF No. 50 at 22 (Pl. Ex. D).
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See Fed. R. Civ. P. 6(d) (adding three days to respond to matters served, inter alia, by mail).
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in the appropriate depository.” 15 C.C.R. § 3142(d).

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In the instant case, the envelope containing the discovery requests directed to defendant

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Moore was signed and dated by a correctional official on March 31, 2015, while the envelope

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containing the discovery requests directed to defendant Kuppinger was signed and dated by a

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correctional official on April 1, 2015. See ECF No. 51 at 14, 19-20. Relying on these dates,

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defendant Moore’s responses were due by May 18, 2015, while defendant Kuppinger’s responses

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were due by May 19, 2015. So construed, defendants’ responses served May 15, 2015 were

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timely.

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There is some authority for defendants’ reliance on the dates provided by prison officials

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on the envelopes containing plaintiff’s discovery requests. See e.g., Ford v. Soto, 2013 WL

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4039803, *1 n.2 (C.D. Cal. 2013) (relying on “the date written and initialed by a prison official

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on the back of the envelope containing the Petition” as the constructive filing date for purposes of

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the mailbox rule); Gleghorn v. Chappell, 2012 WL 5058736,*5 n.7 (C.D. Cal. 2012) (same); see

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also Mitchell v. Janda, 2014 WL 502629, *4 n.3 (C.D. Cal. 2014) (concluding that the petition

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would be untimely filed even if the court applied this construction of the mailbox rule).

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Nevertheless, regardless whether this court construes defendants’ responses as timely

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served, or served one-day late, plaintiff’s concerns are now moot because defendants have served

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their responses. Moreover, it appears that plaintiff failed to meet and confer with defendants

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regarding his discovery concerns before filing the instant motion. See Fed. R. Civ. P. 37(a)(1)

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(“[A] party may move for an order compelling disclosure or discovery [and such] motion must

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include a certification that the movant has in good faith conferred or attempted to confer with the

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person or party failing to make disclosure or discovery in an effort to obtain it without court

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action.”); see also ECF No. 49 at 5, ¶ 5 (Discovery and Scheduling Order).

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion to compel discovery and

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for sanctions, ECF No. 50, is denied.

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DATED: June 10, 2015

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