(PC) Barth v. Montejo et al
Filing
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ORDER signed by Magistrate Judge Deborah Barnes on 1/07/22 DENYING 65 Motion for leave to file a motion to compel DENYING 66 Motion to Compel; and GRANTING 70 Motion for Extension of time. Plaintiff shall have 45 days from the date of service of this order to file an opposition. (Plummer, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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SHAWN DAMON BARTH,
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No. 2:19-cv-1874 WBS DB P
Plaintiff,
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v.
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ORDER
EUSEBIO MONTEJO,
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Defendant.
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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42
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U.S.C. § 1983. Plaintiff claims that defendant was deliberately indifferent to his medical needs,
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retaliated against him, and discriminated against him. Presently before the court is plaintiff’s
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request for leave to file a motion to compel (ECF No. 65), motion to compel (ECF No. 66), and
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motion for an extension of time to file an opposition to defendant’s motion for summary
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judgment (ECF No. 70).
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I.
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Motion for Leave to File a Motion to Compel and Motion to Compel
On November 24, 2021, plaintiff filed a motion for leave to file a motion to compel
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concurrently with a motion to compel. (ECF Nos. 65, 66.) Therein, plaintiff sought an order to
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compel defendants to respond to his discovery requests. He stated that, he served a request for
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production of documents on July 21, 2020.1 (ECF No. 65 at 1.)
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The court notes that defendant had not yet appeared in this action in July 2020 when plaintiff
sent the discovery requests. (See ECF No. 27.)
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Plaintiff claims he sent a meet and confer letter to defendants seeking to obtain responses
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to his discovery requests on October 18, 2021. He alleges he did not receive any response to his
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letter or any response to his request for production. In his motion to compel, plaintiff reproduced
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the 18 requests sent to defendants. He argues that defendants did not respond at all to his
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requests.
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Defendant has filed an opposition to the motion to compel. (ECF No. 69.) Therein,
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counsel for defendant alleges that defendant received a request for production of documents from
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plaintiff on January 5, 2021. (Id. at 1.) Defendant sent plaintiff a letter informing him that the
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request for production was premature because the court had yet to open discovery and advised
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plaintiff to re-serve his requests after the court issued a discovery and scheduling order. The
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letter, dated January 29, 2021 is attached as an exhibit to defendant’s opposition. (ECF No. 69 at
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14.) Defendant argues that the court should deny plaintiff’s motion to compel because it is
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untimely, defendant was not served with all the discovery requests referred to in the motion to
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compel, and the motion to compel is moot because defendant would 2 produce documents
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responsive to the requests. (Id. at 2-3.)
Pursuant to the court’s February 22, 2021 discovery and scheduling order (DSO)
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discovery was due by June 25, 2021. (ECF No. 47.) Plaintiff alleges that he was moved to
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Salinas Valley State Prison and placed in quarantine on February 17, 2021. He further alleges
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that he was “subjected to several housing moves and quaruntines [sic] until [he was] transferred
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to [California Health Care Facility] CHCF on June 29, 2021.” (Id. at 2.)
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Modification of a scheduling order requires a showing of good cause. Fed. R. Civ. P.
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16(b). In order to show good cause exists, a party must show that they have been diligent in
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seeking the requested modification. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609
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(9th Cir. 1992). Plaintiff’s claims he failed to bring a motion earlier because he was transferred
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and quarantined several times between February and June 2021. This explanation fails to show
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Defendant’s opposition is dated December 22, 2021. (ECF No. 69.) Therein, counsel for
defendant stated that a response to plaintiff’s request for production of documents had been
drafted and would be served on plaintiff no later than December 23, 2021. (Id. at 4.)
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that he acted diligently because he has not explained why he took no action between his June
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2021 arrival at CHCF and October 2021 when he sent defendant a letter seeking a response to his
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discovery requests. The DSO stated responses to discovery requests were to be served within
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forty-five days. Thus, the court finds plaintiff’s nearly five-month delay in reaching out to
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defendant fails to show diligence sufficient to support of finding of good cause. Accordingly, the
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court finds that plaintiff’s motion to compel should be denied because it is untimely and moot in
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light of defendant’s representation that it would provide responses to plaintiff’s requests.
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II.
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Plaintiff has sought an extension of time to file an opposition to defendant’s motion for
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summary judgment. (ECF No. 70.) He states he needs an extension of time because his motion
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to compel remains pending.
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Motion for an Extension of Time
Good cause appearing the court will grant plaintiff an extension of time to file an
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opposition. However, plaintiff is advised that the court is not inclined to grant open ended
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extensions of time. In any future motions for extension of time he should state the amount of
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time requested and the reason an extension is necessary.
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III.
Conclusion
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For the reasons set forth above, IT IS HEREBY ORDERED that:
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1. Plaintiff’s request for leave to file a motion to compel (ECF No. 65) and motion to
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compel (ECF No. 66) are denied.
2. Plaintiff’s motion for an extension of time to file an opposition to defendant’s motion
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for summary judgment (ECF No.70) is granted. Plaintiff shall have forty-five (45) days from the
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date of service of this order to file an opposition.
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Dated: January 7, 2022
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DB:12
DB/DB Prisoner Inbox/Civil.Rights/R/bart1874.mtc
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