DuShane v. Sacramento County Main Jail et al

Filing 65

ORDER signed by Magistrate Judge Edmund F. Brennan on 3/23/2016 DENYING plaintiff's 47 motion for sanctions. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JASEN LYNN DUSHANE,

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Plaintiff,

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v.

No. 2:15-cv-136-TLN-EFB P

ORDER

SACRAMENTO COUNTY MAIN JAIL,
et al.,
Defendants.

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Plaintiff is proceeding without counsel in a civil rights action. He has filed a motion for

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sanctions against defense counsel. ECF No. 47. According to plaintiff, defense counsel declared

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under penalty of perjury in opposing a motion to compel filed by plaintiff that “[o]n November 5,

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2015, Plaintiff mailed a discovery request” and that this “was Plaintiff’s only discovery request

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served.” Id. at 1 (quoting ECF No. 43). Plaintiff submits a declaration averring that he served

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other discovery requests that were received and responded to by defense counsel. Id. at 4.

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Defense counsel responds that plaintiff has not complied with Federal Rule of Civil

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Procedure 11(c)(2), which required plaintiff to provide counsel with 21 days after service of the

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motion to withdraw the challenged statement before presenting the motion to the court. ECF No.

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54. Defense counsel states that he filed a notice of errata regarding the challenged statement.

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ECF No. 44. The court has reviewed that filing and finds that it does not identify the challenged
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statement as erroneous. Nevertheless, defense counsel represents that he has responded to

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plaintiff’s discovery requests. ECF No. 54.

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Plaintiff has not replied to defense counsel’s representations or provided anything to show

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that he did serve the motion on defendant 21 days prior to filing it with the court. Because it

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appears that plaintiff did not comply with Federal Rule of Civil Procedure 11(c)(2) prior to filing

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the instant motion with the court, the motion for sanctions is denied. Radcliffe v. Rainbow

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Constr. Co., 254 F.3d 772, 789 (9th Cir. 2001).

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So ordered.

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DATED: March 23, 2016.

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