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Cerniglia v. Carona

April 5, 2010

STEVEN ROBERT CERNIGLIA, PLAINTIFF,
v.
CARONA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DENYING MOTION TO COMPEL AS MOOT (Doc. 20)

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO COMPEL (Doc. 21)

Order

I. Background

Plaintiff Steven Robert Cerniglia ("Plaintiff") is a civil detainee proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's complaint, filed April 10, 2009, against Defendants Julia Corona*fn1 and L. Franks. Pending before the Court are two motions to compel, filed September 4, 2009, and October 13, 2009, seeking further response from Defendant Corona. (Docs. 20, 21.) On November 19, 2009, Defendant Corona filed an opposition. (Doc. 22.) On December 10, 2009, Plaintiff filed his reply. (Doc. 23.) The matter is deemed submitted pursuant to Local Rule 230(l).

II. September 4, 2009 Motion to Compel

On September 4, 2009, Plaintiff filed a motion to compel further responses from Defendant Corona. Plaintiff contends that on June 29, 2009, Plaintiff served his first Request for Production of Documents (POD) and first set of Interrogatories. (Doc. 20, Mot. To Compel 1:25-26.) On October 13, 2009, Plaintiff states in his second motion to compel that Defendant Corona served her responses to the first set of requests for POD and Interrogatories on September 2, 2009. (Doc. 21, Mot. To Compel 2, footnote 1.) Plaintiff raises additional arguments in this second motion to compel pertaining to the same issues in his first motion. The Court finds that the September 4, 2009 motion to compel is moot.

III. October 13, 2009 Motion to Compel

A. Untimely Response To Discovery Requests

Plaintiff contends that Defendant Corona's responses to Plaintiff's first Request for POD and first set of Interrogatories were untimely. (Doc. 21, Mot. To Compel 2, footnote 1.) Plaintiff contends that appropriate sanctions should apply, including Defendant Corona's waiver of all objections. (Id.) Defendant does not respond to this argument.

The Court's discovery and scheduling order, filed June 19, 2009, set a due date of forty-five (45) days after a discovery request is first served for the other party to respond. (Doc. 14, Discovery Order ¶ 2.) Plaintiff contends that he served his discovery requests to Defendant Corona on June 29, 2009. Thus, Defendant Corona would have until August 13, 2009 in which to serve his response. Plaintiff submits a proof of service of Defendant Corona's responses, which indicates a service date of September 2, 2009. (Doc. 21, Mot. To. Compel Exh. D, Decl. Of Personal Service.) However, Plaintiff's proof of service of his own discovery requests indicate that Dustin L. Smithson, the person who served the first set of interrogatories and first set of requests for POD, served the requests on July 29, 2009, not June 29. (Doc. 21, Mot To Compel, Exhs. B and C.) Thus, Defendant Corona's responses appear to be timely. Plaintiff's request for discovery sanctions is denied.

B. Interrogatories

Plaintiff seeks to compel further responses from Defendant Corona to Interrogatories Nos. 6, 7, and 9.

Interrogatory No. 6: Detail with specificity your definition of a "Patient Right." Response: Defendant Corona does not ...


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