IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
April 6, 2011
ANTHONY R. TURNER, PLAINTIFF,
WILLIAM G. DOUGLAS, ET AL., DEFENDANT.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a state prisoner proceeding without counsel with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court are plaintiff's February 24, 2011 motion to compel (Dkt. No. 52), March 16, 2011 motion for default (Dkt. No. 53), and March 16, 2011 motion for sanctions (Dkt. No. 54). For the following reasons, these motions are denied. Motion to Compel Plaintiff claims that on January 18, 2011 he served defendants with a request for production of documents and a subpoena to which they failed to respond. In their opposition, defendants state that they received requests for productions of documents from plaintiff signed by him on March 3, 2011 and March 4, 2011. The December 30, 2011 scheduling order provided that all discovery requests were to be served not later than sixty days prior to April 15, 2011. Defendants state that they sent plaintiff objections to both requests for production on the grounds that they were untimely.
Defendants' opposition does not clearly state that they did not receive a request for production of documents from plaintiff on or around January 18, 2011. However, plaintiff's motion to compel does not contain a copy of the request for production of documents he allegedly served on defendants on January 18, 2011. Because plaintiff has not demonstrated that he served defendants with a request for production of documents on January 18, 2011, and because the requests for production served on defendants in March 2011 were untimely, the motion to compel is denied.
Motion for Default
Plaintiff requests that default be entered based on defendants' alleged failure to respond to his discovery requests, including a subpoena. Plaintiff does not identify these discovery requests, nor does he include a copy of the subpoena. In the opposition to this motion, defendants state that plaintiff has not served a subpoena on them.
Discovery disputes are not appropriately raised in motions for entry of default. See Fed. R. Civ. P. 55. Construing the motion for default as a motion to compel, plaintiff has not demonstrated that defendants failed to respond to a discovery request or a subpoena. For these reasons, this motion is denied.
Motion for Sanctions
Plaintiff moves for sanctions against defendants based on their alleged failure to respond to his discovery requests. Plaintiff alleges that he "has a right to discovery by a subpoena duces tecum." Attached to the motion is a subpoena signed by plaintiff on March 11, 2011. However, the proof of service for the subpoena is unsigned.
Defendants address plaintiff's motion for sanctions in their opposition to his motion for default. Defendants observe that this subpoena lists no date, time or location for the deposition or production of documents.
Plaintiff has not demonstrated that sanctions should be imposed on defendants based on their alleged failure to respond to his discovery requests. Accordingly, the motion for sanctions is denied.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion to compel (Dkt. No. 52) is denied;
2. Plaintiff's motion for default (Dkt. No. 53)is denied;
3. Plaintiff's motion for sanctions (Dkt. No. 54) is denied.
© 1992-2011 VersusLaw Inc.