Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Henderson v. Rodriguez

October 15, 2010


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


I. Background

Plaintiff Curtis Lee Henderson ("Plaintiff") is a California state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's complaint, filed February 6, 2008, against Defendant G. Rodriguez for retaliation in violation of the First Amendment. Pending before the Court is Plaintiff's motion to compel, filed November 23, 2009. (Pl.'s Mot. Compel, Doc. 43.) On January 8, 2010, after receiving an extension of time, Defendant filed his opposition. (Def.'s Opp'n, Doc. 51.) On February 16, 2010, Plaintiff filed an objection, which the court construes as a reply to the opposition. (Pl.'s Reply, Doc. 53.)*fn1 The matter is deemed submitted pursuant to Local Rule 230(l).

II. Motion to Compel

A. Timeliness of Response

Plaintiff contends that he served Defendant with a discovery request on July 16, 2009, but did not receive any response after three months. (Pl.'s Mot. Compel 2:5-9, Doc. 43.) Plaintiff's proof of service indicates a service date of July 16, 2009 for his discovery requests. (Ex. A, p. 6, Doc. 43.)

In opposition, Defendant contends that he did not respond to the discovery request within forty-five days as required by the Court's discovery order because settlement discussions were ongoing. (Def.'s Opp'n 1:26-2:1, Doc. 51.) Defendant's counsel at the time of these discussions contends that she had an oral agreement with Plaintiff to hold discovery in abeyance until the conclusion of these settlement discussions. ( Id. ) Defendant concedes that this understanding was never explicitly memorialized in a writing, or filed with the Court as a stipulation. (Opp'n 2:1-2.) Defendant further contends that Plaintiff's motion is moot, because Defendant has responded to Plaintiff's requests, except for a few irrelevant materials. (Opp'n 2:6-9.) Defendant submits a declaration from defense counsel*fn2 , as well as Defendant's responses to Plaintiff's discovery requests. (Def.'s Opp'n, Decl. Of Jeffrey Steele; Ex. A, Def.'s Responses to Discovery Requests.)

In reply, Plaintiff contends that there was no agreement to hold discovery in abeyance. (Pl.'s Reply 2:4-24, Doc. 53.) Plaintiff submits a letter signed by former counsel Samantha Ramsey, dated November 4, 2009. (Pl.'s Reply, Ex. A2, Letter from Deputy Attorney General Samantha Ramsey to Plaintiff.)*fn3 In this letter, there is no mention of any sort of agreement regarding discovery. Rather, the letter states in pertinent part, "As to the status of discovery, my file reflects that you served a document on July 16, 2009, entitled 'Motion for Discovery.' This document was not processed as discovery requests, but rather as a miscellaneous motion for relief, I suspect because of the title. Regardless of the reason, these requests were overlooked, and I apologize. I [former counsel] will prepare responses and serve within thirty days." (Ex. A.)

Defendant's argument that there was an agreement between the parties to hold discovery in abeyance is unsupported by anything other than current counsel's own declaration, and contradicted by former counsel's letter. It appears that through unintentional neglect on the part of Defendant's former counsel, Defendant failed to respond to Plaintiff's discovery requests within forty-five days from the date of service of the requests.

Defendant served responses to Plaintiff's discovery requests by January 8, 2010, the same date as the filing of Defendant's opposition. As there is no evidence of any stipulation, Defendant's responses to Plaintiff's discovery requests are untimely. The Court finds that Defendant waives objection to Plaintiff's discovery requests. See , e.g. , Fed. R. Civ. P. 37(b) (describing court's power to "issue further just orders"); id. 37(d) (failure to serve response to request for production and sanctions). Because there is a dispute regarding Defendant's responses, Plaintiff's motion to compel is not moot.

B. Plaintiff's Motion To Compel

Plaintiff moves to compel the following:

(1) the full name and badge number of defendants, years employed by CDCR, and years employed as a property officer at Corcoran State Prison ("CSP");

(2) full name, address, and telephone number of each individual likely to have discoverable information that Defendant may use to support his ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.