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Barretto v. Smith

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


August 20, 2009

FRANCISCO BARRETTO, PLAINTIFF,
v.
L. SMITH, ET AL., DEFENDANTS.

ORDER

Plaintiff is a state prisoner proceeding pro se and in forma pauperis. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's motion to compel.

In his motion, plaintiff argues that he mailed the defendants his first set of requests for admissions, first set of interrogatories, and first set of production of documents. However, in response, defense counsel mailed plaintiff a letter informing him that the defendants would not be responding to his discovery requests because they were premature. Plaintiff then sent defense counsel a letter explaining that he did not feel his requests were unreasonable and was willing to allow the defendants additional time to respond.

Defendants have opposed plaintiff's motion to compel and contend that plaintiff mailed his discovery requests in February 2009. At that time, defendants' motion to dismiss was pending before the court, defendants had not filed an answer in this matter, and the court had not yet issued a discovery order. Defense counsel contends that plaintiff should be required to reserve his discovery requests because the court has since ruled on defendants' motion to dismiss, defendants have filed an answer, and the court has issued a discovery and scheduling order.

Under the circumstances of this case, the court will deny plaintiff's motion to compel. When plaintiff mailed defendants his discovery requests they were premature. However, good cause appearing, if plaintiff still seeks responses to his discovery requests he may re-serve them on defense counsel within thirty days.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Plaintiff's May 4, 2009 motion to compel (Doc. No. 55) is denied;

2. If plaintiff still seeks responses to his first set of requests for admissions, first set of interrogatories, and first set of production of documents he shall re-serve them on defense counsel within thirty days; defendants shall respond to plaintiff's discovery requests within forty-five days thereafter; and

3. Except as set forth in this order, the court's May 11, 2009 discovery and scheduling order remains in effect.

20090820

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