The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DENYING PLAINTIFF'S MOTION TO COMPEL AS PREMATURE (ECF No. 61)
ORDER DENYING PLAINTIFF'S MOTION FOR HEARING REGARDING DISCOVERY DISAGREEMENTS AND REQUEST FOR SANCTIONS (ECF Nos. 68, 71, 73) / THIRTY-DAY DEADLINE
Plaintiff Danny James Cohea, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on August 13, 2008. Following Defendants D. Adams, J. Jones, and I. Vela-Lopez filing an answer to the complaint, discovery in this action opened on December 9, 2009. The discovery cut-off date was August 9, 2010. Plaintiff filed a notice of appeal as to the screening order on May 24, 2010, which was denied on June 14, 2010. On June 21, 2010, a second order directing service on Defendants N. Hicinbothem and N. Kush issued. On August 9, 2010, Defendants filed a motion for an extension of the discovery cut-off date. On September 14, 2010, an order adopting the findings and recommendations issued dismissing certain claims and defendants and setting forth the claims proceeding in this action. Plaintiff failed to file an opposition to the motion to amend the scheduling order and the Court granted Defendants' motion for a 120 day extension of time in which to conduct discovery on September 21, 2010.
On January 21, 2011, Defendants filed a motion to amend the scheduling order due to two defendants still being unserved. The Court found that the fact that there were unserved defendants did not warrant extending the discovery cut-off date, however there was ambiguity in the claims found to be cognizable due to Plaintiff's motions for reconsideration and Plaintiff's appeal to the Ninth Circuit. The claims at issue in this action were not clearly defined until the order dismissing certain claims and defendants issued on September 14, 2010. Accordingly, the Court issued an amended discovery and scheduling order with the discovery cut-off date extended to April 15, 2011. Currently before the Court are Plaintiff's motion to compel, filed April 15, 2011, and Plaintiff's motion for a hearing regarding discovery disagreements and request for sanctions, filed June 3, 2011. (ECF Nos. 61, 68.) Defendants filed an opposition to Plaintiff's motion for a hearing and request for sanctions on June 23, 2011 and Plaintiff filed a reply on July 6, 2011. (ECF Nos. 71, 73.)
Plaintiff filed a precautionary motion to compel in case Defendants fail to respond to his discovery requests. Plaintiff is advised that discovery is self executing and the opposing party is to have an opportunity to respond to discovery requests prior to requesting intervention of the Court. The Court will only become involved where there is a discovery dispute. Plaintiff's motion was filed before Defendants had an opportunity to respond to his discovery request and is denied as it is premature.
III. Motion for Hearing Regarding Discovery Disagreements and Request for Sanctions
Plaintiff claims that Defendants acted in bad faith to obtain extensions of time to take his deposition. Plaintiff argues that Defendants moved to amend the discovery order too late to comply with the Court's order that he be noticed of a deposition within fourteen days. Defendants informed the Court that they would travel to the prison to take Plaintiff's deposition, but Plaintiff was deposed by video conference on April 7, 2011. Plaintiff submitted requests for admissions, interrogatories, and productions of documents to Defendants a week before the discovery cut-off deadline and Defendants failed to respond. Plaintiff moves for a hearing regarding the discovery disagreements between the parties and requests that the Court dismiss Defendants motion for summary judgment as a sanction for Defendants failing to comply with the discovery rules.
Defendants respond that the discovery and scheduling order was amended on January 21, 2011, due to an ambiguity in the claims found to be cognizable in the screening order. Due to the ambiguity the Court allowed the parties additional time to conduct discovery. While this Court did not grant Defendants' request to extend the discovery deadline until all defendants were served other courts have granted such a request and defendants made the argument in the interest of efficiency.
In the past defense counsel has taken the deposition of inmates at the prison in which they are housed. However, recently the decision was made to conduct depositions by video conference since a service was available to allow video conferencing with inmates. Plaintiff's deposition was one of the first video depositions conducted by defense counsel and was conducted prior to the discovery cut-off date. However, Plaintiff did not serve his discovery requests until two days before the discovery cut-off date. Counsel has discovered that Plaintiff has been involved in ten lawsuits and due to his litigation experience he would be on notice that he could not file discovery requests and a precautionary motion to compel just prior to the discovery cut-off date.
Plaintiff submits a sixteen page reply arguing that the Court should not have granted Defendants' requests for an extension of the discovery deadline, Defendants misled the Court regarding his deposition and then waited until just prior to the discovery cut-off date to conduct his deposition, and his discovery requests were ...