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Bernabe v. Schwartz

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


April 23, 2009

EDGAR BERNABE, PLAINTIFF,
v.
TERESA A. SCHWARTZ, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

ORDER

Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's request for an extension of time (Doc. 92) to respond to defendants' discovery requests, and defendant's request (Doc. 93) to modify the scheduling order.

The scheduling order issued in this case provides that all discovery was to be completed by August 29, 2008, and all dispositive motions were to be filed within 60 days of that discovery cut-off date. (See Doc. 64). The discovery cut-off date was extended to October 15, 2008, based on plaintiff's first request for additional time. (See Doc. 79). The cut-off date for plaintiff's deposition and his response to the outstanding discovery requests was extended again to December 15, 2008, based on plaintiff's second request. (See Doc. 81). When plaintiff still had not responded to the interrogatories by December 9, 2008, defendants filed a motion to compel, which the court granted. Based on the order granting the motion to compel, the dispositive motion deadline was extended to April 30, 2009, and plaintiff was ordered to serve responses to the interrogatories within 30 days. (See Doc. 89).

Plaintiff has now filed his third request for additional time to respond to the outstanding discovery requests. He is requesting additional time, up to August 7, 2009. Plaintiff was originally propounded the discovery requests in June 2008, which were then reserved on plaintiff in July 2008. He therefore has had almost a year to respond. Plaintiff has not provided any evidence to the court that he has made a good faith effort to respond to the outstanding discovery requests. In addition, plaintiff was informed that requests for extensions of time were discouraged. He was also warned that the court is inclined to recommend that this action be dismissed as an appropriate sanction for his failure to comply.

Plaintiff will be provided one last opportunity to appropriately respond to the outstanding discovery requests. However, his request to have up to August 7, 2009, is unreasonable given the amount of time he has already had and the lack of showing of his good faith effort. He will have an additional 20 days to respond properly.

Defendants are requesting the court modify the scheduling order to provide sufficient time for filing a dispositive motion after receiving the responses to the outstanding discovery requests. In the alternative they are requesting to renew of their motion for monetary and terminating sanctions for plaintiff's failure to respond to their interrogatories. As plaintiff is being allowed one last opportunity to respond to the interrogatories, defendants' request to modify the deadline for filing dispositive motions will be granted. The parties will have until July 20, 2009, in which to file any dispositive motions.

However, the court will not issue a decision as to defendants' request to renew their motion for monetary and terminating sanctions at this time. The court is allowing plaintiff one last opportunity to comply. Defendants are requested to notify the court whether or not plaintiff has responded to their interrogatories within 30 days of the date of service of this order. If plaintiff fails to respond within the 20 days provided in this order, the undersigned will allow the defendants' request for terminating sanctions to be renewed, and will recommend this action be dismissed for plaintiff's failure to comply with court orders and respond to discovery requests.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's request for additional time to respond to the production of documents request (Doc. 92) is granted in part;

2. Plaintiff shall appropriately respond to the pending discovery requests, including the interrogatories, within 20 days of the date of service of this order;

3. Defendants shall inform the court, within 30 days of the date of service of this order, whether or not plaintiff has responded appropriately to the outstanding discovery requests;

4. If plaintiff fails to respond appropriately to the outstanding discovery requests, the undersigned will allow the defendants' request for terminating sanctions to be renewed and will recommend this action be dismissed for plaintiff's failure to follow court orders and respond to discovery requests;

5. Defendant's request to modify the scheduling order is granted; and

6. The dispositive motion deadline is reset to July 20, 2009.

20090423

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