The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT VO'S MOTION TO COMPEL AND FOR SANCTIONS (Doc. 167)
ORDER REQUIRING PLAINTIFF TO PAY DEFENDANT VO REASONABLE EXPENSES IN THE AMOUNT OF $375.00 WITHIN SIXTY DAYS
Plaintiff Keith Blackwell, a former state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on June 20, 2005. This action is proceeding on Plaintiff's second amended complaint, filed July 5, 2007, against Defendants Vo, Escobara, Pennywell, McGrew, and Lawhorn under section 1983 for acting with deliberate indifference to Plaintiff's serious medical needs, in violation of the Eighth Amendment. On July 23, 2009, Defendant Vo filed a motion to compel. Plaintiff did not file a response.
Defendant served interrogatories and a request for the production of documents on Plaintiff on April 9, 2009. (Doc. 167, Motion, Paul Dec., ¶4.) Pursuant to the Court's scheduling order and Federal Rule of Civil Procedure 6(d), Plaintiff was required to serve his responses on or before May 29, 2009. Plaintiff failed to respond to the discovery requests and failed to respond to Defendant's letter, mailed July 6, 2009, demanding that Plaintiff respond within seven days. (Id., Paul Dec., ¶¶6, 7.) Defendant seeks an order dismissing the claim against him, or in the alternative, an order compelling Plaintiff to serve responses to the discovery requests. Defendant also seeks reasonable expenses in the amount of $525.00.
Plaintiff may not refuse to respond to properly served discovery requests, and his failure to respond entitles Defendant to an order compelling a response. Fed. R. Civ. P. 37(a)(3)(B).
With respect to sanctions, Rule 37(d) authorizes the Court to dismiss Plaintiff's claim against Defendant Vo as a sanction for failing to serve responses to Defendant's interrogatories and request for the production of documents. However, because dismissal is a drastic sanction reserved for extreme circumstances, e.g., In re Exxon Valdez, 102 F.2d 429, 432 (9th Cir. 1996), it is not one the Court is willing to entertain at this stage, based on a one time failure to respond to discovery requests and in the absence of disobedience of an order directing Plaintiff to respond.*fn1 Therefore, Defendant's request for dismissal as a sanction is denied.
With respect to reasonable expenses, Defendant is entitled to the expenses incurred in making his motion to compel. Fed. R. Civ. P. 37(d)(3). Given that Plaintiff did not respond to the motion, Defendant's anticipated expenses in reviewing and researching Plaintiff's opposition and in drafting a reply are disregarded. There has been no showing that Plaintiff was substantially justified in failing to respond, and therefore, Defendant's motion for $375.00 in reasonable expenses is granted.*fn2 Id.
As previously stated, Defendant is entitled to an order compelling Plaintiff to serve responses. However, in light of the pending recommendation to grant Defendant judgment on the merits, the Court shall stay the order given that judgment in Defendant's favor will render this discovery dispute moot.
Accordingly, it is HEREBY ORDERED that:
1. Defendant's motion to compel and for sanctions, filed July 23, 2009, is GRANTED IN PART and DENIED IN PART as follows:
a. Defendant's motion to compel a response to his interrogatories and request for the production of documents is GRANTED but the order compelling Plaintiff to serve responses is stayed pending resolution of the Court's recommendation that Defendant's motion for summary judgment be granted;
b. Defendant's motion to dismiss the claim against him as a sanction is DENIED;
c. Defendant's motion for reasonable expenses in the amount of $375.00 is GRANTED; and
d. Plaintiff shall pay Defendant Vo $375.00 within sixty (60) days from the date of ...