Joseph v. Parciasepe, et al.

Filing 36

ORDER signed by Magistrate Judge Allison Claire on 04/08/16 ordering within 7 days of the filing of this order, defendant shall file with the court his responses to plaintiff's 10/10/15 requests for admissions, interrogatories, and production. Defendant should include his certificates of service and any supplemental responses. Defendant's motion to modify the dispositive motion deadline 35 is granted and the 4/08/16 dispositive motion deadline is vacated. The deadline for the parties to file motions for summary judgment will be re-set upon disposition of plaintiff's motion to compel. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALONZO JAMES JOSEPH,

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Plaintiff,

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No. 2:14-cv-0414 GEB AC P

v.

ORDER

T. PARCIASEPE,

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Defendant.

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Plaintiff is a state prisoner proceeding pro se with this civil rights action pursuant to 42

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U.S.C. § 1983. Currently before the court is plaintiff’s motion to compel (ECF No. 33), which

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defendant opposes (ECF No. 34), and defendant’s motion to modify the dispositive motion

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deadline (ECF No. 35).
The deadline for filing discovery motions was January 15, 2016. ECF No. 21. Plaintiff’s

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motion to compel was not filed until February 16, 2016,1 approximately one month after the

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deadline had passed. Plaintiff acknowledges that the deadline for completing discovery was

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January 15, 2016, but argues that his delay should be overlooked because defendant obtained an

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extension of time to respond to his first request for production and then deposed him on January

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5, 2016. ECF No. 33 at 1-2. He further alleges that defendant has not produced any documents

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Since plaintiff is proceeding pro se, he is afforded the benefit of the prison mailbox rule. See
Houston v. Lack, 487 U.S. 266, 276 (1988).
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in response to his October 10, 2015 request for production or provided him with a copy of his

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deposition transcript. Id. It appears that plaintiff is attempting to argue that he delayed in

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bringing his motion because he was wanted to give defendant an opportunity to respond to his

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discovery requests without involving the court.

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Although plaintiff should have requested an extension of time to bring his motion to

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compel, the court will consider the motion. The motion was filed shortly after plaintiff received

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defense counsel’s letter advising him that defendant would not be responding to the second

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request for production because it was untimely. ECF No. 33 at 10. This demonstrates that

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plaintiff, though technically untimely, did not overly delay in bringing his motion. This alone

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would perhaps not be sufficient to cause the court to consider plaintiff’s untimely motion.

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However, the court is troubled by defendant’s objection that the first request for production is

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overbroad because it simply requests all documents (ECF No. 34 at 3-4), given defense counsel’s

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sworn declaration stating that the request was being treated as “one compound, thirty-six part

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request for production of documents (requesting documents in response to each interrogatory and

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request for admission)” (ECF No. 24 at 3, ¶ 4). It appears possible that defendant’s change in

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position may have also contributed to plaintiff’s delay in bringing his motion.

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For these reasons, the court will consider the motion to compel. However, the court is

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unable to conduct a proper analysis without defendant’s responses to plaintiff’s discovery

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requests. Defendant will therefore be required to provide to the court a copy of his responses to

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plaintiff’s October 10, 2015 requests for admissions, interrogatories, and production. Because the

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plaintiff’s motion to compel is still pending, and may result in additional production which could

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impact plaintiff’s ability to bring or defend against a dispositive motion, the court will grant

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defendant’s motion to modify the dispositive motion deadline. The deadline for the parties to file

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motions for summary judgment will be vacated and re-set upon disposition of plaintiff’s motion

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to compel.

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Accordingly, IT IS HEREBY ORDERED that

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1. Within seven days of the filing of this order, defendant shall file with the court his

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responses to plaintiff’s October 10, 2015 requests for admissions, interrogatories, and production.
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Defendant should include his certificates of service and any supplemental responses.
2. Defendant’s motion to modify the dispositive motion deadline (ECF No. 35) is granted

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and the April 8, 2016 dispositive motion deadline is vacated. The deadline for the parties to file

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motions for summary judgment will be re-set upon disposition of plaintiff’s motion to compel.

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DATED: April 8, 2016

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