Jenkins v. Bonds et al
ORDER signed by Magistrate Judge Edmund F. Brennan on 03/21/17 ordering that "plaintiff's reply to defendant's stipulated request to file and lodge plaintiff's use of force interview 32 , construed as a motion to compel is denied. (Plummer, M)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
ROBERT LEE JENKINS, JR.,
No. 2:13-cv-2151-GEB-EFB P
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42
U.S.C. § 1983. He has filed a document entitled “Plaintiff’s Reply to Defendant’s Stipulated
Request to File and Lodge Plaintiff’s Use of Force Interview.”1 ECF No. 32. Plaintiff states that
“defendant did not produce [plaintiff’s] request for production of documents,” and attaches at
least six separate requests for production. See id. He requests a court order directing defendant to
provide him with a transcribed copy of plaintiff’s use of force interview and to provide the court
with a video copy of the “entire” interview for review. Id. at 2-3. Construed as a motion to
compel pursuant to Rule 37(a) of the Federal Rules of Civil Procedure, 2 the motion is denied.
The court is not in receipt of any such “stipulated request.” Defendant did, however, file
a request to file the use of force video with the court as evidence in support of a motion for
summary judgment. ECF No. 33.
If, on the other hand, plaintiff is seeking further discovery from defendant, he must serve
his discovery requests directly on defense counsel rather than filing them with the court. See E.D.
Pursuant to the court’s discovery and scheduling order, discovery closed on January 27,
2017. ECF No. 26. A scheduling order may be modified upon a showing of good cause. Fed. R.
Civ. P. 16(b). Good cause exists when the moving party demonstrates he cannot meet the
deadline despite exercising due diligence. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,
609 (9th Cir. 1992). Plaintiff’s motion, filed over a month after the close of discovery, does not
request modification of the scheduling order; nor does it demonstrate a basis for such
modification. See ECF No. 32 at 6, 21 (showing that defendant had served plaintiff with his
discovery responses over two months prior to the close of discovery). The motion is therefore
denied as untimely.
Moreover, the only discovery requests specifically discussed in plaintiff’s motion are
those requesting a “transcribed copy” of the use of force interview. Defendant’s response
indicates that such a transcript does not exist. ECF No. 32 at 20. Defendant cannot be compelled
to produce a document that does not exist, and is not required to create a document in response to
plaintiff’s request for production.
As noted, plaintiff’s motion also seeks a court order for defendant to produce a video of
the interview to the court. By separate order, the court grants defendant’s request to file and
lodge a compact disk containing the use of force interview. Thus, this portion of plaintiff’s
motion appears to be moot.
Accordingly, it is HEREBY ORDERED that “Plaintiff’s Reply to Defendant’s Stipulated
Request to File and Lodge Plaintiff’s Use of Force Interview” (ECF No. 32), construed as a
motion to compel, is denied.
DATED: March 21, 2017.
Cal. Local Rules 250.2-250.4.
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