Rice v. Bauer et al

Filing 59

ORDER signed by Magistrate Judge Edmund F. Brennan on 1/31/2017 ORDERING that defendants' 47 Motion to Compel plaintiff to serve responses to their interrogatories, requests for admission, and requests for production of documents is GRANTED . Plaintiff's 56 motion for an extension of time is DENIED as moot. The discovery deadline is EXTENDED by 74 days for the limited purpose of allowing defendants to conduct third-party discovery. Any dispositive motions shall be filed within 120 days of the date of this order. (Zignago, K.)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

KORDY RICE,

12

No. 2:15-cv-236-JAM-EFB P
Plaintiff,

13

v.

14

D. BAUER, et al.,

15

ORDER

Defendants.

16
17

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

18

U.S.C. § 1983. Defendants move to compel plaintiff to serve responses to their interrogatories,

19

requests for admission, and requests for production of documents, and to extend the discovery

20

deadline for the limited purpose of conducting third party discovery. As explained below, the

21

motions are granted.

22

On November 2, 2016, defendants filed a motion to compel plaintiff to serve responses to

23

their interrogatories, requests for admission, and requests for production of documents. ECF No.

24

47. Defendants explained that plaintiff had notified them that he did not have access to his legal

25

property and that plaintiff had not provided any responses to their discovery requests.1 Id. The

26

time allowed for responding to the motion expired and plaintiff failed to file an opposition or

27
28

1

Defense counsel also stated that she intended to investigate the status of plaintiff’s legal
property. ECF No. 47-2, ¶ 5.
1

1

statement of non-opposition to defendants’ motion. Accordingly, on December 6, 2016, the court

2

warned plaintiff that failure to respond to defendants’ motion may be deemed a waiver of any

3

opposition to the granting of the motion and ordered plaintiff to file a response within fourteen

4

days. ECF No. 53.

5

On December 15, 2016, plaintiff filed an “objection,” stating that he had not received a

6

copy of defendants’ motion. See ECF No. 54 (explaining that within the last three months, he had

7

been housed in a mental health crisis facility and transferred to five different prisons). In

8

response, defendants provided plaintiff with courtesy copies of their motion to compel and the

9

court’s order compelling a response, via overnight mail on December 20, 2016. ECF No. 55. In

10

a filing dated January 4, 2017, plaintiff states that he is not in possession of his personal property

11

and requests 60 days to “retrieve documents, fill out forms, copy forms, and mail forms to court

12

(defendants et al production of documents).” ECF No. 56. Plaintiff does not deny defendants’

13

contention that he has failed to respond to their discovery requests; rather, he appears to be

14

seeking additional time to serve defendants with his responses.2 Defendants filed a statement of

15

non-opposition. ECF No. 58. Accordingly, defendants’ motion to compel will be granted and the

16

court will afford plaintiff the additional time requested for locating his property and serving

17

defendants with his discovery responses.

18

Defendants also move to modify the scheduling order, explaining that despite their

19

diligence, they did not have sufficient time to interview two inmate-witnesses identified by

20

plaintiff at his October 14, 2016 deposition, or to schedule depositions. ECF No. 48. The motion

21

is unopposed. A scheduling order may be modified upon a showing of good cause. Fed. R. Civ.

22

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

23

despite exercising due diligence. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th

24
2

25
26
27
28

Plaintiff is instructed that such responses must be served on defendants, rather than filing
them with the court. Pursuant to this court’s local rules, interrogatories, requests for production,
requests for admission, and responses thereto “shall not be filed with the clerk” unless there is a
proceeding that puts the discovery request or response at issue. See E.D. Cal. Local Rules 250.2250.4. Further, when a discovery request or response is at issue, only the part of the request or
response at issue “shall be filed.” Id. At this time, there is no proceeding before the court that
requires plaintiff’s discovery responses.
2

1

Cir. 1992). Good cause appearing, defendants’ motion to modify the scheduling order will be

2

granted.

3

Accordingly, IT IS HEREBY ORDERED that:

4

1. Defendants’ motion to compel plaintiff to serve responses to their interrogatories,

5

requests for admission, and requests for production of documents. (ECF No. 47) is

6

granted as follows:

7

a. Plaintiff shall, within 60 days of the date of this order, serve defendants with

8

his discovery responses.

9

b. Failure to serve full and complete responses may result in sanctions, including

10

the dismissal of this action for plaintiff’s failure to follow court orders and

11

prosecute his case.

12

c. If defendants receive no response or an inadequate response from plaintiff,

13

they may file a motion to compel within 14 days of the date the discovery

14

responses are due.

15
16
17
18
19
20

2. Plaintiff’s January 4, 2017 motion for an extension of time (ECF No. 56) is denied as
moot.
3. Good cause appearing, the discovery deadline is extended by 74 days for the limited
purpose of allowing defendants to conduct third-party discovery.
4. Any dispositive motions shall be filed within 120 days of the date of this order.
DATED: January 31, 2017.

21
22
23
24
25
26
27
28
3