Jamaar-Dione Smith v. Santa Rita Jail et al

Filing 42

ORDER by Judge ARMSTRONG denying 40 Motion to Compel (lrc, COURT STAFF) (Filed on 8/17/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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RODNEY JAMAAR-DIONE SMITH,

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No. C 09-2263 SBA (PR)
ORDER DENYING PLAINTIFF'S
SECOND MOTION TO COMPEL
DISCOVERY; AND DISMISSING
WITHOUT PREJUDICE CLAIMS
AGAINST DEFENDANT GRIFFIN

Plaintiff,
v.
DEPUTY J. COOPER, et al.,
Defendants.

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Court construes as his second motion to compel. As explained below, Plaintiff's first motion to

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For the Northern District of California

Before the Court is Plaintiff's "Motion to Compel Discovery" (docket no. 40), which the

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United States District Court

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compel was denied as premature on March 9, 2011. Defendants have filed an opposition to

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Plaintiff's motion.

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Also before the Court is Defendants' motion for summary judgment, filed on July 13, 2011.

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Plaintiff filed his opposition on July 26, 2011. Defendants' reply brief is due on August 26, 2011.

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The Court also notes that Defendant Z. L. Griffin has not yet been served in this action. In

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an Order dated March 9, 2011, the Court informed Plaintiff that service had been ineffective on

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Defendant Griffin, and directed Plaintiff to provide the Court with the current address for Defendant

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Griffin within thirty days of the Order. In an Order dated April 20, 2011, the Court granted Plaintiff

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an additional thirty days to provide the Court with the current address for Defendant Griffin. On

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May 19, 2011, the Court's Order granting Plaintiff an extension of time was returned to the Court as

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undeliverable indicating that Plaintiff was "not in custody" at the Santa Rita Jail. On June 6, 2011,

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Plaintiff filed a letter dated May 24, 2011, informing the Court that he had been returned to Santa

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Rita Jail, and requesting the Clerk of the Court to "forward all legal documents that may have been

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returned due to temporary change of address," including "all legal documents pertaining to [his]

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case." (Pl.'s May 24, 2011 Letter at 1.) On June 16, 2011, the Clerk sent Plaintiff another copy of

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the Court's April 20, 2011 Order granting Plaintiff an extension of time to provide the Court with the

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current address for Defendant Griffin. Thirty days have passed since the Clerk resent the Court's

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April 20, 2011 Order to Plaintiff, and, to date, he has not provided the Court with the current address

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of Defendant Griffin.

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For the reasons outlined below, the Court DENIES Plaintiff's motion to compel. The Court

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also DISMISSES all claims against Defendant Griffin without prejudice under Rule 4(m) of the

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Federal Rules of Civil Procedure.

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DISCUSSION
I.

Plaintiff's Motion to Compel Discovery

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On March 9, 2011, the Court denied Plaintiff's first motion to compel as premature, stating:

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Plaintiff did not meet and confer with Defendants, which would have afforded them
with a final opportunity to address each request upon which he now asks the Court
to rule. Moreover, it may be that Plaintiff will obtain some sought-after discovery
if Defendants file a motion for summary judgment and accompanying exhibits, with
which Defendants shall also serve Plaintiff.

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For the Northern District of California

United States District Court

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(March 9, 2011 Order at 2.)

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In his second motion to compel, Plaintiff claims he "attempted to confer with Defendants[']

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attorney . . . but [has] not been successful in obtaining relevant discoverable items." (Second Mot.

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to Compel at 1.) Plaintiff also claims that he "requested . . . initial discovery," which Defendants

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"denied." (Id.) Thus, the Court construes this claim as Defendants' alleged failure to make an initial

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disclosure pursuant to Rule 26(a) of the Federal Rules of Civil Procedure. Plaintiff also attaches a

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copy of "Defendants' Response to Plaintiff's Request for Discovery." (Attach. to Second Mot. to

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Compel.)

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Defendants claim that "[a]lthough Plaintiff provides a copy of Defendants' responses to his

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request for discovery," he "fails to provide Defendants or this Court with any explanation as to the

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further discovery that he seeks or the responses that he deems insufficient." (Defs.' Opp'n at 1.)

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They add that Plaintiff did not meet and confer with them regarding any discovery issues. At his

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deposition, Plaintiff was "advised the proper procedure was to send a letter to Defendants' counsel

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identifying the discovery issues he wanted to address." (Id.; Stocker Decl., Ex. A.) However,

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Defendants claims that Plaintiff has not sent such a letter to them.

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First, Plaintiff complains that Defendants did not make an initial disclosure pursuant to Rule
26(a) of the Federal Rules of Civil Procedure. Prisoner cases, such as the instant action, are
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exempted from the provisions of Rule 16(b) regarding scheduling and planning. See Fed. R. Civ. P.

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16(b), 26(a)(1)(B)(iv) ("The following proceedings are exempt from initial disclosure: . . . . (iv) an

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action brought without an attorney by a person in the custody of the United States, a state, or a state

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subdivision."). This also has the effect of exempting them from the provision of the local rules

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regarding case management conferences. Civ. L.R. 16-2(a). The Court's initial review order, which

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authorizes discovery and sets a schedule for dispositive motions, serves as the case management

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order in a pro se prisoner case. See Civ. L.R. 16-7. Thus, Defendants had no obligation to make an

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initial disclosure. Accordingly, Plaintiff's motion to compel are DENIED as to his discovery request

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relating to Defendants making an initial disclosure.
Plaintiff has attached an exhibit showing that Defendants have provided responses to his

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For the Northern District of California

United States District Court

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"Request for Production of Documents, Set One." (Attach. to Second Mot. to Compel.) Though not

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entirely clear, Plaintiff appears to argue that the Court should "intervene" and compel further

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responses from Defendants. However, the Court finds his motion to compel to be inadequate

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because he has not explained why any of Defendants' responses were inadequate. For example, if

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Defendants refused to respond because an discovery request is unintelligible, Plaintiff must explain

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why it is not unintelligible to show that Defendants ought to be compelled to further answer it.

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Accordingly Plaintiff's motion to compel is DENIED as to his discovery request relating to

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Defendants' giving further responses to his "Request for Production of Documents, Set One."

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II.

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Defendant Griffin
Defendant Griffin has not been served in this action. The Court was originally informed by

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Sergeant Kelly J. Martinez from the Civil Litigation Unit of the Alameda County Sheriff's Office

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that they could not accept service for Defendants Cooper and Griffin, stating: "Defendant Cooper

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has not been employed by the Alameda County Sheriff's Office since March 2008 and Defendant

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Griffith (Griffin) has not been employed by the Alameda County Sheriff's Office since August

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2006." (Nov. 28, 2011 Letter from Sgt. Martinez at 1.) Sgt. Martinez added: "Attempts to contact

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both defendants at their last known phone numbers met with negative results." (Id.) On March 7,

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2011, Defendants' counsel informed the Court that she would accept service on behalf of Defendant

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Cooper, but not on behalf of Defendant Griffin; therefore, service has been ineffective on Defendant
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Griffin.

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As plaintiff is proceeding in forma pauperis (IFP), he is responsible for providing the Court

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with current addresses for all Defendants so that service can be accomplished. See Walker v.

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Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994); Sellers v. United States, 902 F.2d 598, 603 (7th Cir.

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1990).

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Pursuant to Rule 4(m), if a complaint is not served within 120 days from the filing of the

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complaint, it may be dismissed without prejudice for failure of service. When advised of a problem

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accomplishing service, a pro se litigant proceeding IFP must "attempt to remedy any apparent

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defects of which [he] has knowledge." Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987). If
the marshal is unable to effectuate service through no fault of his own, e.g., because the plaintiff

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For the Northern District of California

United States District Court

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failed to provide sufficient information, the plaintiff must seek to remedy the situation or face

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dismissal. See Walker, 14 F.3d at 1421-22 (prisoner failed to show cause why prison official should

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not be dismissed under Rule 4(m) because prisoner did not prove that he provided marshal with

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sufficient information to serve official or that he requested that official be served).

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As mentioned above, on June 16, 2011, the Clerk resent to Plaintiff the Court's April 20,

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2011 Order, in which he was given a thirty-day extension of time to provide the current address of

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Defendant Griffin. Thirty days have passed, and Plaintiff has failed to provide the Court with the

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aforementioned required information.

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Accordingly, all claims against Defendant Griffin are DISMISSED without prejudice under
Rule 4(m).

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CONCLUSION

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For the reasons outlined above, the Court orders as follows:

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1.

Plaintiff's motion to compel discovery (docket no. 40) is DENIED.

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2.

Pursuant to the briefing schedule in the Court's March 9, 2011 Order, Defendants'

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shall file a reply brief to Plaintiff's opposition to their motion for summary judgment no later than

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August 26, 2011. The motion for summary judgment shall be deemed submitted as of the date the

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reply brief is due. No further extensions of time will be granted in this case absent exigent

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circumstances.
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3.

All claims against Defendant Z. L. Griffin are DISMISSED without prejudice under

Rule 4(m) of the Federal Rules of Civil Procedure.

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4.

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IT IS SO ORDERED.

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This Order terminates Docket no. 40.

DATED: __8/17/11
SAUNDRA BROWN ARMSTRONG
United States District Judge

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For the Northern District of California

United States District Court

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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RODNEY JAMAAR DIONE SMITH,

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Plaintiff,

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Case Number: CV09-02263 SBA
CERTIFICATE OF SERVICE
v.
DEPUTY J COOPER et al,
Defendant.

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For the Northern District of California

United States District Court

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on August 17, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said
envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk's office.

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Rodney Jamaar-Dione Smith BCD323
Alameda County Jail - Santa Rita
5325 Broder Blvd.
Dublin, CA 94568

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Dated: August 17, 2011

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Richard W. Wieking, Clerk
By: LISA R CLARK, Deputy Clerk

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G:\PRO-SE\SBA\CR.09\Smith2263.deny2ndCOMPEL&Dismiss-Griffin.wpd

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