Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

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

Thomas J. Heilman v. T. Lyons

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


February 23, 2011

THOMAS J. HEILMAN, PLAINTIFF,
v.
T. LYONS, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER AND REVISED SCHEDULING ORDER

Plaintiff is a state prisoner proceeding without counsel. On January 20, 2011, plaintiff filed a motion to be allowed to propound additional interrogatories, apparently as a sanction based on the alleged failure of defendants Lyons and Esberto to serve plaintiff with a copy of their December 30, 2010 request for extension of time to respond to plaintiff's interrogatories and request for admissions. (Dkt. No. 24.) However, review of defendants' December 30, 2010 request reveals that defendants provided a declaration under penalty of perjury attesting to service of the request on plaintiff at his address of record by U.S. Mail. (Dkt. No. 21 at 4.) Plaintiff has failed to demonstrate that these defendants did not notify plaintiff of their request. Moreover, defendants' motion was granted by order filed January 11, 2011. (Dkt. No. 23.) On this record, plaintiff's motion must be denied.

On February 11, 2011, plaintiff filed a notice of submission of documents form along with a request for status of subpoena duces tecum. Although the notice of submission of documents form indicates plaintiff returned the subpoena duces tecum form as limited by and in compliance with the court's December 13, 2010 order, no revised subpoena duces tecum form was provided. Plaintiff previously provided a subpoena duces tecum form in connection with his request for reconsideration, but the request for reconsideration was denied, and the subpoena duces tecum form submitted with that request was not limited as required by the court's December 13, 2010 order. (Dkt. No. 22-1.) Because plaintiff has failed to provide the appropriate form, the U.S. Marshal has not yet served the subpoena duces tecum; therefore, plaintiff's February 11, 2011 motion to compel responses to the subpoena duces tecum is premature and is denied.

The Clerk of the Court will be directed to send plaintiff another subpoena duces tecum form and plaintiff will be provided an extension of time to provide the court with the properly completed subpoena duces tecum form as limited by the court's December 13, 2010 order. Plaintiff is cautioned that the completed subpoena duces tecum form must be returned to the court forthwith. Once the subpoena duces tecum form is received by the court, the court will review the document to ensure that it comports with the court's December 13, 2010 order. If the subpoena duces tecum form complies with the December13, 2010 order, the court will issue an order to the U.S. Marshal to serve the subpoena duces tecum. Plaintiff shall not send the form to the U.S. Marshal, as it will cause delay in this process. Plaintiff shall return the completed subpoena duces tecum form to the court, along with the completed notice of submission of documents form provided below. Plaintiff is cautioned that failure to timely return the subpoena duces tecum form and the notice of submission of documents form to the court will result in an order barring service of this discovery request. Because the court must review the discovery request and the U.S. Marshal must have time to serve the discovery request, time is of the essence. No further extensions of time will be granted.

In addition to the delayed subpoena duces tecum form, defendants were granted an extension of time to respond to certain discovery requests until February 4, 2011. (Dkt. No. 23.) Plaintiff has now filed a request for sixty-day extension of time to review the responses to the discovery requests. In light of the discovery delays in this case, the February 11, 2011 discovery deadline must be extended. However, the extension of the discovery deadline will be limited to the subpoena duces tecum and to resolution of the responses to interrogatories and request for admissions addressed by this court's January 11, 2011 order. No other discovery shall be propounded, absent leave of court, by any party.

The court turns now to plaintiff's February 16, 2011 motion for an additional sixty days to review and respond to defendants' responses to the interrogatories and request for admissions. Plaintiff's request was dated February 11, 2011. Defendants' responses to these discovery requests were due on February 4, 2011. (Dkt. No. 23.) Rather than file a motion to compel responses to these discovery requests, plaintiff seeks an extension of time to review and respond to discovery requests he did not have, at least as of February 11, 2011. Because plaintiff was not yet in possession of discovery responses, the court cannot grant him an extension of time to respond to those alleged responses. However, the court is extending the discovery deadline for purposes of resolving these discovery requests. If plaintiff has not yet received the discovery responses, he should file a motion to compel responses. If plaintiff has now received the discovery responses, he should review them immediately and proceed with haste to resolve any remaining discovery disputes prior to the new discovery deadline. This court is not inclined to extend the discovery deadline any further.

Accordingly, IT IS HEREBY ORDERED that: 1. Plaintiff's January 20, 2011 motion to propound additional interrogatories (dkt. no. 24) is denied;

2. Plaintiff's February 11, 2011 motion to compel discovery (dkt. no. 27) is denied without prejudice;

3. The February 11, 2011 notice of submission of documents form (dkt. no. 25) is disregarded;

4. Plaintiff's February 16, 2011 motion for extension of time (dkt. no. 28) is denied without prejudice;

5. The Clerk of Court is directed to send plaintiff a subpoena duces tecum form and a copy of the court's December 13, 2010 order;

6. Plaintiff shall forthwith complete the attached Notice of Submission of Documents form and the subpoena duces tecum form, as limited by the December 13, 2010 order, and return them to the court as soon as possible, but in no event shall the documents be returned more than fourteen days after the date of this order; and

7. The October 28, 2010 scheduling order (dkt. no. 17) is revised as follows:

A. The February 11, 2011 discovery deadline is extended to May 11,

2011;

B. The May 6, 2011 pretrial motions deadline is extended to August 5,

2011; and

C. The extension of the discovery deadline is solely for the purpose of resolving the subpoena duces tecum to the California Department of Corrections and Rehabilitation as addressed in this court's December 13, 2010 order, and resolving defendants' responses to interrogatories and request for admissions addressed by this court's January 11, 2011 order. No other discovery shall be propounded by any party.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA THOMAS JOHN HEILMAN,

Plaintiff, No. 2:09-cv-2721 KJN P v.

T. LYONS, et al.,

Defendants. NOTICE OF SUBMISSION

OF DOCUMENTS

Plaintiff hereby submits the following documents in compliance with the court's order filed .

One completed subpoena duces tecum form, as limited by the court's December 13, 2010 order

Plaintiff

20110223

© 1992-2011 VersusLaw Inc.



Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

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