Frank v. Macomber et al

Filing 70

ORDER signed by Magistrate Judge Carolyn K. Delaney on 5/9/2018 VACATING 66 Findings and Recommendations; DENYING 57 Motion to Compel Responses to Request for Production of Documents; and GRANTING 57 Request to Deem Requests for Admissions Admitted. Defendants granted 14 days within which to file a motion to compel further responses to defendant Shinnette's request for production of documents. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WARREN FRANK, JR.,

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Plaintiff,

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No. 2:15-cv-2133 KJM CKD P

v.

ORDER

JEFF MACOMBER, et al.,

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Defendants.

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Plaintiff is a California prisoner proceeding pro se with an action for violation of civil

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rights under 42 U.S.C. § 1983. On April 10, 2018, the court recommended that this action be

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dismissed for plaintiff’s failure to file an opposition to defendants’ January 18, 2018 motion to

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compel plaintiff to respond to defendant Shinnette’s request for production of documents and

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motion to deem requests for admissions admitted based on plaintiff’s failure to provide a timely

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response. Plaintiff still has not opposed the motion. However, he has provided defendants with

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responses to defendant Shinnette’s request for production of documents and request for

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admissions.
Good cause appearing, the court will vacate the April 10, 2018 findings and

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recommendations. With respect to defendants’ January 18, 2018 motion to compel plaintiff to

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respond to defendant Shinnette’s request for production of documents, that motion will be denied

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as plaintiff has now responded. Defendants will be granted 14 days within which to file a motion

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to compel plaintiff to provide further responses if they are not satisfied with the responses given.

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As for defendants’ motion to deem requests for admissions admitted, that motion will be

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granted as plaintiff did not file a timely response to the requests for admissions which results in

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automatic admission under Federal Rule of Civil Procedure 36(a)(3). Further, plaintiff has not

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sought relief from the operation of Rule 36(a)(3) as he may do under Rule 36(b).

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Accordingly, IT IS HEREBY ORDERED that:

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1. The court’s April 10, 2018 findings and recommendations are vacated.

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2. Defendants’ motion to compel responses to request for production of documents (ECF

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No. 57) is denied.

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3. Defendants’ request to deem requests for admissions admitted (ECF No. 57) is granted.

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4. The requests for admissions appearing on the court’s docket as Exhibit B attached to

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document 57-1 are deemed admitted by plaintiff.
5. Defendants are granted 14 days within which to file a motion to compel further

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responses to defendant Shinnette’s request for production of documents.

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Dated: May 9, 2018

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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fran2133.mtc

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