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Chess v. Dovey

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


March 8, 2010

MICHAEL CHESS, PLAINTIFF,
v.
J. DOVEY, ET AL., DEFENDANTS.

ORDER

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

In plaintiff's motion to compel, he explains that he served defendants with his discovery requests on January 16, 2010, four days late, and based on his untimeliness they have refused to respond to his requests. Plaintiff explains that he has been on institutional lock down since January 2009 and has not had access to the law library, the law library paging system, and law library copy machines despite his repeated requests for such access. (Pl.'s Mot. to Compel at 1-2.)

In opposition to plaintiff's motion to compel, defense counsel explains that, on January 16, 2010, plaintiff served defendants Miller, Dial, French, and James with interrogatories, requests for production of documents, and requests for admission. Counsel contends that the defendants are not required to respond to plaintiff's untimely discovery requests. In addition, counsel contends that plaintiff has not provided good cause as to why his discovery requests were untimely. Finally, defense counsel notes that, in the event that the court construes plaintiff's motion to compel as a motion for a nunc pro tunc extension of time to serve his discovery requests, the defendants request a forty-five day extension of time to respond to the discovery requests. (Defs.' Opp'n to Pl.'s Mot. to Compel at 2-3.)

In the interests of justice, the court will construe plaintiff's motion to compel as a motion for an extension of time to serve his discovery requests on defendants Miller, Dial, French, and James. In addition, good cause appearing, the court will grant defendants forty-five days to respond to plaintiff's interrogatories, requests for production of documents, and requests for admission.

Finally, the court notes that on February 8, 2010, plaintiff filed with the court copies of his interrogatories and requests for admission for defendant David, and on February 11, 2010, filed a copy of his requests for admission for defendant Rahman. Defense counsel has also informed the court that on January 27, 2010, plaintiff late-served defendant Dudley with interrogatories, requests for production of documents, and requests for admission, and on January 31, 2010, plaintiff late-served defendant David with interrogatories and requests for admission.

These discovery requests are not the subject of plaintiff's pending motion. Accordingly, the court will not order defendants Rahman, David, or Dudley to respond to the untimely discovery requests at this time. The court will, however, direct the Clerk of the Court to disregard the discovery requests plaintiff has filed in this case. Neither discovery requests served on an opposing party nor that party's responses should be filed until such time as a party becomes dissatisfied with a response and seeks relief from the court pursuant to the Federal Rules of Civil Procedure. Plaintiff is cautioned that further filing of discovery requests or responses with the court, except as required by rule of court, may result in an order of sanctions, including, but not limited to, a recommendation that this action be dismissed.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion to compel construed as a motion for a nunc pro tunc extension of time to serve his discovery requests on defendants Miller, Dial, French, and James (Doc. No. 68) is granted;

2. Defendants Miller, Dial, French, and James are granted forty-five days from the date of this order to respond to plaintiff's interrogatories, requests for production of documents, and requests for admission; and

3. The Clerk of the Court is directed to disregard plaintiff's discovery requests (Doc. Nos. 69-71).

20100308

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