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Monclova-Chavez v. McEachern

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


August 27, 2010

MAXIMILIAN MONCLOVA-CHAVEZ, PLAINTIFF,
v.
ERIC MCEACHERN, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER GRANTING MOTION TO COMPEL

(Doc. 53)

Plaintiff Maximilian Monclova-Chavez ("Plaintiff") is a federal prisoner proceeding pro se and in forma pauperis in this civil action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971), which provides a remedy for violation of civil rights by federal actors. Plaintiff is suing Defendants Eric McEachern, Timothy Miller, Kenneth White, and C.O. Tincher for the use of excessive force in violation of Plaintiff's rights under the Eighth Amendment.

On June 24, 2010, Plaintiff filed a motion to compel discovery responses from Defendants Timothy Miller and Kenneth White. (Doc #53.) Plaintiff contends that Miller and White refused to respond to the interrogatories and requests for production of documents propounded on April 23, 2010. Defendants Miller and White have not filed an opposition to Plaintiff's motion to compel.

Plaintiff filed this motion to compel after the June 20, 2010 discovery deadline. Plaintiff requests that the untimely filing be excused pursuant to Federal Rule of Civil Procedure 6(b)(1)(B) as "excusable neglect." Given the relatively short delay, the lack of any apparent prejudice to any of the parties, and Defendants' failure to oppose Plaintiff's motion to compel, the Court will grant Plaintiff's motion to extend time nunc pro tunc and will deem the motion to compel to be timely filed.

Plaintiff requests an order compelling Defendants Miller and White to respond to Plaintiff's interrogatories and requests for production of documents. The Court will grant Plaintiff's request and order Defendants White and Miller to respond to Plaintiff's discovery requests within thirty (30) days of the date of service of this order. Plaintiff also requests an order that states that the further unexcused failure to respond to the discovery requests will result in evidentiary sanctions prohibiting Defendants White and Miller from presenting evidence at trial. The Court will decline to issue or warn of any specific sanctions at this time. Instead, the Court cautions Defendants White and Miller that the further unexcused failure to respond to Plaintiff's discovery requests may result in the imposition of the sanctions identified in Federal Rule of Civil Procedure 37, which include evidentiary sanctions. If Defendants White and Miller fail to respond to Plaintiff's discovery requests within the thirty (30) day deadline, Plaintiff may seek a specific discovery sanction against them.

Accordingly, it is HEREBY ORDERED that Defendants Miller and White shall respond to Plaintiff's interrogatories and requests for production of documents within thirty (30) days of the date of service of this order.

IT IS SO ORDERED.

20100827

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