Owens v. Defazio et al

Filing 169

ORDER signed by Magistrate Judge Kendall J. Newman on 5/4/2020 DENYING 167 Motion for Extension of Time to File a Motion to Compel; ORDERING within 30 days of the date of this order, defendants to file a response to plaintiff's claim in [167 ] Motion for Extension of Time that he was not permitted to review all the documents ordered on 2/21/2020; and ORDERING within 30 days of the date of this order, defendants to file a response to plaintiff's 12/18/2019 Motion to Compel further responses to interrogatory nos. 5-11, 13, and 18. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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THEON OWENS,

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No. 2: 16-cv-2750 JAM KJN P
Plaintiff,

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v.

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ORDER

JOSEPH DEGAZIO, et al.,

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Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. Pending before the court is plaintiff’s motion for an extension of time to file

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a motion to compel. (ECF No. 167.) Also pending is plaintiff’s motion to compel filed

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December 8, 2019.1 (ECF No. 146.)

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Motion for Extension of Time to File Motion to Compel
On January 10, 2020, the undersigned issued an order granting in part and denying in part

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plaintiff’s amended motion to compel filed October 24, 2019. (ECF Nos. 137, 151.) In relevant

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part, the undersigned ordered defendants to submit within fourteen days, for in-camera review,

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two copies of the documents sought in request for production of documents nos. 1-11 and 21.

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(ECF No. 151.) Defendants were to produce one clean copy of these documents and one copy

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The undersigned calculates the filing date of the motion to compel pursuant to the mailbox
rule.
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containing proposed redactions. (Id.)

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Defendants submitted the documents for in camera review. After conducting the in-

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camera review, on February 21, 2020, the undersigned ordered defendants to arrange with the

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Litigation Coordinator for plaintiff to review the redacted documents within thirty days. (ECF

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No. 156.)

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In the pending motion, plaintiff seeks an extension of time to file a motion to compel

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based on his March 20, 2020 review of the redacted documents. (ECF No. 167.) Plaintiff alleges

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that during this review, he “became aware that all of the documents permitted by the court for

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reviewing (see ECF No. 156) were not included in the 20-page stack of papers. I also found other

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issues that were extremely bothersome that I want to address.” (Id. at 3.) Plaintiff requests an

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extension of time to file a motion to compel addressing the alleged bothersome issues and to

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compel defendants to allow him to review all the documents addressed by the undersigned in the

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February 21, 2020 order. Plaintiff alleges that he is currently in the Department of Mental Health

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and is without access to his legal property, books or supplies.

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Plaintiff does not specifically allege why he believes he did not review all of the

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documents the undersigned ordered defendants to make available for plaintiff’s review in the

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February 21, 2020 order. Plaintiff also does not describe any of the issues he found “bothersome”

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during the review.

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While plaintiff may be without access to his legal property, books and supplies, the

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undersigned will not grant plaintiff an extension of time to file a motion to compel based on the

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vague and unsupported allegations in the pending motion. Moreover, the undersigned did not

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intend for plaintiff to file additional discovery motions based on his review of these documents.

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Accordingly, plaintiff’s motion for an extension of time to file a motion to compel is denied.

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However, the undersigned will direct defendants to respond to plaintiff’s claim that he was not

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permitted to review all the documents addressed by the undersigned in the February 21, 2020

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order.

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////

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December 18, 2019 Motion to Compel
On October 7, 2019, the undersigned granted defendants thirty days from the date of the

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order to provide plaintiff with responses to interrogatories served on June 14, 2018. (ECF No.

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134 at 3.) The undersigned ordered that plaintiff could file a motion to compel regarding

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defendants’ responses to the June 14, 2018 interrogatories within thirty days thereafter. (Id.)

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On December 18, 2019, plaintiff filed the pending motion to compel challenging

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defendants’ responses to the June 14, 2018 interrogatories. (ECF No. 146.) On March 5, 2020,

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the undersigned ordered defendants to respond to plaintiff’s December 18, 2019 motion to

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compel. (ECF No. 158.) The undersigned ordered defendants to address whether the motion to

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compel was timely and whether they provided plaintiff with signed copies of responses to the

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interrogatories. (Id.)

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On April 3, 2020, defendants filed an amended opposition to plaintiff’s December 18,

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2019 motion to compel. (ECF No. 163.) Defendants state that they served plaintiff with verified

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responses to the June 14, 2018 interrogatories. Defendants also argue that the motion to compel

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should be denied as untimely. Defendants do not address the merits of plaintiff’s motion to

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compel.

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In support of their argument that the motion to compel is not timely, defendants state that

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on November 6, 2019, they served plaintiff with responses to his interrogatories. (Id. at 10.)

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Defendants state that on December 8, 2019, plaintiff served defendants and the court with a

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motion for an extension of time to file a motion to compel. (Id. at 24.) The motion for extension

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of time sought an additional fifteen days to file the motion to compel. (Id. at 23.) However, this

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motion was not filed with the court. Defendants argue that even if the motion for extension of

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time had been filed, it was filed beyond the thirty days allocated by the court to file the motion to

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compel. Therefore, defendants argue, plaintiff’s December 18, 2019 motion to compel is

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untimely.

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Thirty days from November 6, 2019, was December 6, 2019. Therefore, defendants are

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correct that even if the motion for extension of time had been filed with the court, it was filed two

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days beyond the thirty days allocated by the undersigned to file the motion to compel.
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It is not clear why the court failed to receive plaintiff’s motion for an extension of time to

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file the motion to compel. The proof of service for this motion indicates that the motion was

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served on the court. (Id. at 24.) In the motion for extension of time, plaintiff did not address why

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the motion was served two days past the deadline for filing the motion to compel. However, in

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the motion for extension of time, plaintiff alleged that he did not have access to his legal property

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in order to prepare the motion to compel. The undersigned also observes that plaintiff sought a

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fifteen-day extension of time to file the motion to compel. The motion to compel was filed within

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fifteen days of December 6, 2019.

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Based on the circumstances discussed above, and plaintiff’s pro se status, the undersigned

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would have granted plaintiff’s motion for extension of time to file the motion to compel had it

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been filed with the court. For these reasons, the undersigned finds that plaintiff’s December 8,

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2019 motion to compel is timely. Defendants are directed to file a response to plaintiff ‘s

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December 18, 2019 motion to compel further responses to interrogatory nos. 5-11, 13 and 18.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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Plaintiff’s motion for an extension of time to file a motion to compel (ECF No. 167)
is denied;

2. Within thirty days of the date of this order, defendants shall file a response to

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plaintiff’s claim in his motion for extension of time (ECF No. 167) that he was not

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permitted to review all the documents ordered by the undersigned on February 21,

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2020;

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3. Within thirty days of the date of this order, defendants shall file a response to

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plaintiff’s December 18, 2019 motion to compel further responses to interrogatory

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nos. 5-11, 13 and 18.

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Dated: May 4, 2020

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