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Jones v. Palombo

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


May 15, 2009

KEVIN JONES, PLAINTIFF,
v.
M. PALOMBO, DEFENDANT.

The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER DENYING MOTION TO COMPEL (Doc. 32)

This is a civil rights action filed pursuant to 42 U.S.C. § 1983 by Plaintiff Kevin Jones, a state prisoner proceeding pro se and in forma pauperis. The action is proceeding on Plaintiff's amended complaint, filed January 28, 2008, against Defendant Palombo for use of excessive physical force, in violation of the Eighth Amendment. The discovery phase of this litigation commenced on September 3, 2008, and the deadline for the completion of all discovery was April 27, 2009. On April 3, 2009, Plaintiff filed a motion to compel a response to his request for the production of documents, and Defendant filed an opposition on April 24, 2009. Plaintiff's reply was due on or before May 4, 2009, and to date, no reply has been filed. Therefore, the motion is deemed submitted. Local Rule 78-230(m).

Plaintiff seeks an order requiring Defendant to produce documents. Plaintiff's motion fails to demonstrate that he properly served a request for the production of documents at least forty-five days before he filed the motion to compel, and that either Defendant failed to respond at all or the response was not satisfactory. Indeed, Defendant contends in his opposition that he was never served with a request for the production of documents, or any other discovery request.

Plaintiff may not initially seek discovery from Defendant via a motion to compel. A motion to compel is proper only after Plaintiff serves a discovery request on Defendant and is dissatisfied with the response.

Plaintiff failed to demonstrate that he is entitled to relief, and his motion to compel, filed April 3, 2009, is DENIED on the ground.

IT IS SO ORDERED.

20090515

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