Jenkins v. Bonds et al

Filing 35

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)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT LEE JENKINS, JR.,

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No. 2:13-cv-2151-GEB-EFB P

Plaintiff,

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ORDER

v.
BONDS,

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Defendant.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. He has filed a document entitled “Plaintiff’s Reply to Defendant’s Stipulated

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Request to File and Lodge Plaintiff’s Use of Force Interview.”1 ECF No. 32. Plaintiff states that

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“defendant did not produce [plaintiff’s] request for production of documents,” and attaches at

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least six separate requests for production. See id. He requests a court order directing defendant to

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provide him with a transcribed copy of plaintiff’s use of force interview and to provide the court

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with a video copy of the “entire” interview for review. Id. at 2-3. Construed as a motion to

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compel pursuant to Rule 37(a) of the Federal Rules of Civil Procedure, 2 the motion is denied.

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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.
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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.
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Pursuant to the court’s discovery and scheduling order, discovery closed on January 27,

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2017. ECF No. 26. A scheduling order may be modified upon a showing of good cause. Fed. R.

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Civ. P. 16(b). Good cause exists when the moving party demonstrates he cannot meet the

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deadline despite exercising due diligence. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,

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609 (9th Cir. 1992). Plaintiff’s motion, filed over a month after the close of discovery, does not

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request modification of the scheduling order; nor does it demonstrate a basis for such

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modification. See ECF No. 32 at 6, 21 (showing that defendant had served plaintiff with his

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discovery responses over two months prior to the close of discovery). The motion is therefore

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denied as untimely.

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Moreover, the only discovery requests specifically discussed in plaintiff’s motion are

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those requesting a “transcribed copy” of the use of force interview. Defendant’s response

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indicates that such a transcript does not exist. ECF No. 32 at 20. Defendant cannot be compelled

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to produce a document that does not exist, and is not required to create a document in response to

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plaintiff’s request for production.

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As noted, plaintiff’s motion also seeks a court order for defendant to produce a video of

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the interview to the court. By separate order, the court grants defendant’s request to file and

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lodge a compact disk containing the use of force interview. Thus, this portion of plaintiff’s

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motion appears to be moot.

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Accordingly, it is HEREBY ORDERED that “Plaintiff’s Reply to Defendant’s Stipulated

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Request to File and Lodge Plaintiff’s Use of Force Interview” (ECF No. 32), construed as a

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motion to compel, is denied.

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DATED: March 21, 2017.

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Cal. Local Rules 250.2-250.4.
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