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Buckley v. Alameida

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


January 25, 2010

ANTONIO CORTEZ BUCKLEY, PLAINTIFF,
v.
EDWARD ALAMEIDA, JR., ET AL., DEFENDANTS.

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

ORDER DENYING PLAINTIFF'S MOTION TO COMPEL, WITHOUT PREJUDICE TO RENEWAL WITHIN THIRTY DAYS, AND DENYING MOTION FOR REASONABLE EXPENSES (Doc. 104)

Amended Pretrial Dispositive Motion Deadline: 06/08/2010

Order on Motion to Compel

Plaintiff Antonio Cortez Buckley, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 2000cc-1 (the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA")) on December 29, 2003. This action is proceeding on Plaintiff's third amended complaint, filed on March 23, 2007, against Defendants Howard, Johnson, Barker, Chappel, Papac, Meadors, Winett, Woodley, Calderon, Vo, Kordan, Reed, Mack, and Traynham.

On December 9, 2009, Plaintiff filed a motion to compel responses to his second sets of interrogatories, requests for admission, and request for the production of documents; to compel a response to document production request three from his first request for the production of documents, and for reasonable expenses incurred in making the motion to compel. Fed. R. Civ. P. 37. Defendants filed an opposition to the motion on December 21, 2009, and Plaintiff filed a reply on January 4, 2010.

I. Second Sets of Interrogatories, Requests for Admission, and Document Requests

Defendants argue that Plaintiff 's motion was prematurely filed and that they timely served Plaintiff with their responses to his second set of interrogatories, requests for admission, and request for the production of documents on December 7, 2009.

Plaintiff served the discovery requests at issue on October 20, 2009. Pursuant to the Court's scheduling order and Federal Rule of Civil Procedure 6(d), Defendants were required to serve their responses on or before December 7, 2009. Plaintiff prepared and mailed his motion to compel responses on December 3, 2009.

Defendants are correct that Plaintiff's motion was prematurely filed. Plaintiff was timely served with responses to his discovery requests on December 7, 2009.

To the extent that Defendants' answers were deficient, Plaintiff must file a motion to compel on those grounds. He may not rest upon his prematurely filed motion to compel, and may not seek to cure the deficiencies in his prematurely filed motion via his reply. Defendants are entitled to notice and an opportunity to be heard, a requirement not satisfied when the moving papers are deficient and the moving party attempts to cure the deficiencies in the reply.

Because the discovery deadline was December 8, 2009, the Court will grant Plaintiff a thirty-day extension of time within which to file a renewed motion to compel. To allow for the completion of all discovery, the pretrial dispositive motion deadline is extended from March 8, 2010, to June 8, 2010.*fn1

II. Administrative Segregation and Contraband Records

Plaintiff also seeks to compel a response to his request for his administrative segregation and contraband records from December 11, 2002, until Plaintiff's release from administrative segregation. (Doc. 105, Motion, court record pp. 6:25-7:5; Ex. B, POD 3.) Defendants responded that after conducting a search, they located no documents responsive to this request. (Doc. 105, Ex. B, POD 3.) Plaintiff has made no showing that Defendants' response is incorrect or untrue, and as a result, his motion a further to compel is denied.*fn2

III. Order

For the reasons set forth herein, it is HEREBY ORDERED that:

1. Plaintiff's motion to compel and for reasonable expenses, filed December 7, 2009, is DENIED;

2. Within thirty (30) days from the date of service of this order, Plaintiff may renew his motion to compel, to the extent necessary in light of the responses served by Defendants on December 7, 2009; and

3. The pretrial dispostive motion deadline is extended from March 8, 2010, to June 8, 2010.

IT IS SO ORDERED.


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