UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
October 7, 2011
ALEX LAMOTA MARTI, PLAINTIFF,
M. A. BAIRES, ET AL.,
The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
(1) DENYING MOTIONS TO COMPEL, WITHOUT PREJUDICE;
(2) REQUIRING DEFENDANTS TO RE-SERVE THEIR RESPONSES TO PLAINTIFF'S INTERROGATORIES AND REQUESTS FOR ADMISSION WITHIN FIFTEEN DAYS;
(3) REQUIRING DEFENDANTS TO SERVE A RESPONSE TO PLAINTIFF'S REQUEST FOR THE PRODUCTION OF A TANGIBLE THING WITHIN FIFTEEN DAYS; AND (4) GRANTING PLAINTIFF THIRTY DAYS FROM THE DATE OF SERVICE OF DEFENDANTS' RESPONSES TO FILE A MOTION TO COMPEL, IF NECESSARY (Docs. 31-38 and 42)
Order on Plaintiff's Motions to Compel
Plaintiff Alex Lamota Marti, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on May 9, 2008. This action is proceeding on Plaintiff's amended complaint against Defendants Baires, Garza, and Knight for retaliation, in violation of the First Amendment of the United States Constitution. Pending before the Court are Plaintiff's motions to compel responses to his interrogatories, requests for admission, and request for the production of a tangible thing, filed on April 20, 2011. (Docs. 31-37.) Defendants filed an opposition on April 27, 2011, and Plaintiff filed a reply on May 16, 2011. On August 12, 2011, Plaintiff filed a second motion to compel the production of a tangible thing.
II. Discussion and Order
On February 23, 2011, Plaintiff served three sets of interrogatories and three requests for admission, one for each defendant; and one request for the production of a tangible thing. Pursuant to the Court's discovery order, Defendants' responses were due on or before April 14, 2011. In his motions to compel, Plaintiff contends that he has not received any responses to his discovery requests.
Defendants oppose Plaintiff's motions to compel on the ground that they timely served responses to Plaintiff's interrogatories and requests for admission on April 5, 2011, and that they were never served with a request for the production of a tangible thing.*fn1 In reply, Plaintiff contends that he has not received any responses to his discovery requests.
Based on the record, which is supported by a declaration from counsel, it appears that Defendants timely served their responses to Plaintiff's interrogatories and requests for admission. However, Plaintiff never received the responses. Therefore, Defendants shall re-serve their responses and the Court will grant Plaintiff additional time to file another motion to compel, should one be necessary following receipt of the responses.
With respect to Plaintiff's two motions to compel a response to his request for the production of a tangible thing, the Court must accept that just as Plaintiff did not receive Defendants' discovery responses, Defendants did not receive Plaintiff's discovery request. There is no evidence to support a finding to the contrary and mail does on occasion fail to reach its destination. Therefore, Defendants shall serve an initial response to Plaintiff's request for the production of a tangible thing, which may be found in the record as Exhibit A to document 34 and Exhibit 1 to document 42.
Accordingly, it is HEREBY ORDERED that:
1. Plaintiff's motions to compel are denied, without prejudice (court documents 31-38 and 42);
2. Defendants shall re-serve their responses to Plaintiff's interrogatories and requests for admission within fifteen (15) days from the date of service of this order;
3. Defendants shall serve an initial response to Plaintiff's request for the production of a tangible thing within fifteen (15) days from the date of service of this order; and
4. If Plaintiff is dissatisfied with Defendants' responses, he has thirty (30) days from the date of service of the responses to file another motion to compel.
IT IS SO ORDERED.