The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
Plaintiff, a former state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendants' motion for sanctions (Doc. 240) for plaintiff's failure to appear at his deposition. The court declined to rule on the motion at the time it was filed and instead provided plaintiff with an opportunity to appear at a deposition. The court also stated that if plaintiff failed to appear at the deposition, the court would grant defendants' motion for dismissal sanctions, but if plaintiff did appear, the motion for sanctions will be denied. Defense counsel was to notify the court whether or not plaintiff appeared at his deposition.
The deposition was set to occur on either January 21-22, 2009 or January 29-30, 2009. Plaintiff indicated he would appear for a deposition on January 30, 2009. On February 9, 2009, the court issued an order requiring defendants to file a status report regarding plaintiff's attendance at the deposition and their pending motion for dismissal sanctions within 10 days. On February 24, 2009, defendants filed a request for an extension of time to file the status report and prepare a motion for terminating sanctions.
Defendants' request for an extension of time to file a status report will be denied. Defendants have had sufficient time to indicate to the court whether or not plaintiff appeared at the deposition. Plaintiff has indicated he appeared at his deposition as scheduled, and defendants have not disputed his appearance. In addition, the court previously indicated that if plaintiff appeared at his deposition, the pending motion for sanctions would be denied. The issue in the pending motion was plaintiff's failure to appear. As it appears to the court that plaintiff did in fact appear at his deposition, the current motion for sanctions will be denied. However, this denial be without prejudice to defendants' ability to bring a new motion for sanctions, if necessary, based on what occurred or did not occur at the deposition, within 30 days.
Accordingly, IT IS HEREBY ORDERED that:
1. Defendants' request for additional time to submit a status report (Doc. 294) is denied; and
2. Defendants' motion for sanctions (Doc. 240) is denied without prejudice to defendants' ability to bring a new motion for sanctions, if appropriate, within 30 days.
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