The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DENYING PLAINTIFF'S MOTION FOR SANCTIONS (Doc. 43)
This is a civil rights action filed pursuant to 42 U.S.C. § 1983 by Plaintiff Christopher S. Rider, a state prisoner proceeding pro se and in forma pauperis. This action is proceeding on Plaintiff's amended complaint, filed June 12, 2008, against Defendant Cano for use of excessive force and against Defendant Kahn for denial of medical care, in violation of the Eighth Amendment. Pursuant to the scheduling order, the deadline for the completion of all discovery is March 2, 2010.
On December 23, 2009, Plaintiff filed a motion seeking sanctions against Defendants for failing to timely serve responses to his discovery requests. Defendants filed an opposition on January 6, 2010, and Plaintiff filed a reply on January 19, 2010.
A responding party has forty-five days from the date of service of a discovery request to respond. (Doc. 20, Disc. & Sched. Order, ¶2.) Plaintiff contends that he served a request for the production of documents on September 2, 2009, and a request for admissions and interrogatories on September 15, 2009. On October 30, 2009, defense counsel conferred with Plaintiff by telephone and sought an extension of time to November 24, 2009, to respond to the request for admissions and interrogatories, to which Plaintiff agreed. On November 5, 2009, Defendants filed a motion seeking an extension of time to November 24, 2009, to serve responses to Plaintiff's request for admissions and interrogatories, and stated that Plaintiff was unwilling to sign the written stipulation they presented to him via the Litigation Coordinator.
On December 3, 2009, Plaintiff received responses to his request for admissions, interrogatories, and request for the production of documents. Plaintiff contends that none of the discovery responses were timely under the Court's order, and that the request for the production of documents was exceedingly untimely given that it was not included either in his verbal agreement to an extension of time or in the order granting an extension of time. Plaintiff seeks sanctions deemed appropriate by the Court.
Although apparently not received by Plaintiff until December 3, 2009, Defendants served their discovery responses by mail on November 24, 2009. Written responses are due within forty-five of service. Fed. R. Civ. P. 34(b)(2)(A); Disc. & Sched. Order. Service of a response by mail, as is the case here, is completed upon mailing. Fed. R. Civ. P. 5(b)(2)(C). Defendants' responses to the request for admissions and interrogatories were served by mail on the deadline and were therefore timely.
Given that neither the courts nor the parties to litigation can control or predict the speed of the United States Postal Service or the prison's mail delivery system, it would be virtually impossible to coordinate responses to comply with deadlines requiring hand delivery of mail. It is for that reason that date on the proof of service by mail is the operative response deadline.
Turning to the request for the production of documents, the burden is on the moving party to supply the information necessary for the Court to issue a ruling. In this instance, Plaintiff failed to provide a copy of his document production request and proof of service with his motion. In this case, that information is critical because Defendants contend that they were not properly served with a request for the production of documents and that they responded to an informal request for discovery made pursuant to penal code section 1054.5, attached to Plaintiff's motion to withdraw his motions to compel.
The Court has reviewed Plaintiff's motion to withdraw, which was filed on September 9, 2009, and included with the filing is a document entitled "Informal Request for Discovery Pursuant to Penal Code § 1054.5." (Doc. 27.) If this is the request for production of documents at issue in Plaintiff's motion for sanctions, and that appears to be the case, it was not a properly served request for the production of documents. Neither informal discovery requests nor state penal code sections have any applicability to this federal civil action. Rule 34 of the Federal Rules of Civil Procedure governs formal requests for the production of documents. Given Plaintiff's failure to serve a properly noticed, formal discovery request pursuant to Rule 34, no duty to respond by Defendants was triggered by the document. While Defendants ultimately served a response, they were not required to do so under the circumstances, and as a result, their failure to respond within forty-five days provides no ground for the imposition of sanctions against them.*fn1
Further, in light of Plaintiff's request for one million dollars in sanctions, the Court finds it appropriate to issue the following admonition. The circumstance in which Plaintiff is seeking sanctions limits the availability of sanctions, notwithstanding his failure to serve a proper Rule 34 request. Plaintiff did not file a motion to compel and the only issue is Defendants' allegedly untimely response. Therefore, the sanctions permitted under Rule 37 in circumstances where a party successfully moves to compel, or where the non-moving party fails to serve a discovery response or fails to comply with an order granting a motion to compel are not available to Plaintiff. Rather, the sanction available for failure to serve a timely discovery response is a waiver of the objections to the discovery response. Plaintiff's request, set forth in his reply, for one million dollars in sanctions is so unreasonable as to be in bad faith. Any party who frivolously or in bad faith seeks sanctions against the opposing party will find himself at risk for being sanctioned for abuse of process.
Plaintiff's motion for sanctions, filed December 23, 2009, is HEREBY ORDERED DENIED.