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Palmer v. Crotty

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


October 21, 2010

STEVEN M. PALMER, PLAINTIFF,
v.
CROTTY, ET AL., DEFENDANTS.

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

ORDER DENYING PLAINTIFF'S MOTION TO COMPEL ORDER DENYING MOTION FOR EXTENSION OF TIME FOR DISCOVERY AND DISPOSITIVE MOTION DEADLINES (DOC. 52)

Plaintiff Steven M. Palmer ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation. Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's second amended complaint against Defendant Harold Tate for violation of the Eighth Amendment. Pending before the Court is Plaintiff's motion to compel, filed June 28, 2010. (Doc. 52.) Defendant Tate filed an opposition on July 9, 2010. (Doc. 53.) Plaintiff's motion to compel also includes a motion for extension of time to conduct discovery.

I. Motion To Compel

Plaintiff contends that Defendant failed to respond to Plaintiff's written questions and requests for production. (Pl.'s Mot. Compel 1-2.) Plaintiff contends that Defendant and his counsel delayed in their response and failed to cooperate with discovery. (Id.)

Defendant contends that he nor counsel ever received Plaintiff's discovery requests. (Defs.' Opp'n 2:11-20.) Defendant contends that there is no proof of any discovery requests sent, any letters mailed, or even when these letters were mailed. (Id.)

Plaintiff does not submit any evidence that he served discovery requests on Defendant. Plaintiff contends that he sent letters to defense counsel, but does not submit these letters, nor any proof of service. If there were no discovery requests served, there is no basis for a motion to compel. See Fed. R. Civ. P. 37. Furthermore, the discovery cut-off deadline was May 4, 2010, which includes the filing of motions to compel. (Discovery And Scheduling Order, Doc. 39.) Plaintiff's motion is thus untimely. Accordingly, Plaintiff's motion to compel, filed June 28, 2010, is DENIED.

II. Motion For Extension

Plaintiff also moves the Court for an extension of time to the discovery cut-off date and the dispositive motion deadline. (Pl.'s Mot. Compel 1-2.) Plaintiff contends that he needs ninety days to get discovery in order.*fn1 A party seeking to modify the scheduling order must demonstrate good cause. Fed. R. Civ. P. 16(b)(4). Plaintiff has demonstrated no good cause. There is no showing that Plaintiff submitted discovery requests to Defendant or his counsel. Plaintiff's request for an extension of time is also untimely. Accordingly, Plaintiff's motion for extension of time is DENIED.

IT IS SO ORDERED.


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