The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Plaintiff, a state prisoner proceeding pro se and in forma pauperis, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court are the following motions: (1) plaintiff's motion to file a second amended complaint (Doc. No. 30); (2) plaintiff's motion for sanctions (Doc. No. 33); (3) defendant's request to excuse her late compliance with the court's July 11, 2011 order granting in part plaintiff's motion to compel (Doc. No. 32); and (4) defendant's motion to strike plaintiff's motion for summary judgment as untimely, or, in the alternative, for an additional 30 days in which to file her own motion for summary judgment (Doc. No. 39).
The undersigned will address each of these motions in turn.
The gravamen of this action, which is currently proceeding on the original complaint filed on December 11, 2009 (see Doc. Nos. 15, 17), is that defendant Fields violated plaintiff's First Amendment right to file inmate grievances and pursue civil rights litigation. The complaint reads that plaintiff was transferred to CSP-Sacramento's Facility C in August 2007 as a non-gang-affiliated prisoner, and that in February or March 2008, Fields retaliated against plaintiff for filing past grievances by adding him to C-Facility's list as a Blood gang associate. (Doc. No. 1, hereinafter "Complaint," at ¶¶ 7, 10, 24). As a result, plaintiff was included in lockdowns of Blood and Crip gang associates in April and June 2008, and continues to suffer restrictions and hardships as a result of being identified as a gang associate among the prison population. (Id. at ¶¶ 11, 13, 17). Plaintiff further alleges that, after defendant Fields was served with plaintiff's complaint and summons in another legal action in August 2008, Fields retaliated by having plaintiff fired from his job assignment. (Id. at ¶ 16). Plaintiff alleges that, due to Fields' retaliatory actions, he remains vulnerable to future lockdowns and associated injuries as a purported Blood associate. (Id. at ¶¶ 28, 29).
On June 7, 2010, this court screened plaintiff's original complaint and amended complaint, and dismissed the amended complaint with leave to file a second amended complaint within 28 days. (Doc. No. 15). On September 1, 2010, after plaintiff failed to file a second amended complaint, the court dismissed defendant Walker with prejudice and directed that the case proceed on the original complaint. (Doc. No. 18).
On July 26, 2010, this court entered a "Discovery and Scheduling Order," setting various deadlines for discovery and dispositive motions in this action. (Doc. No. 16) Discovery was to be completed by October 29, 2010, and dispositive motions were to be filed by January 28, 2011. By order dated December 1, 2010, this court extended the discovery deadline, pursuant to plaintiff's unopposed motion, for an additional forty-five days, or through Tuesday, January 18, 2011.*fn1 (Doc. No. 23) Prior to the close of the extended discovery deadline, plaintiff filed a motion to compel defendant's responses to discovery. (Doc. No, 24) By order filed July 11, 2011, this court granted in part plaintiff's motion to compel, in which plaintiff had sought, among other things, a response to his request for an "Inmate Interview Form" completed when defendant allegedly interviewed plaintiff in February and March 2008. (Doc. No. 29) Defendant had initially responded that no such document could be located. See Doc. No. 27, p. 3. In response, this court noted:
[D]efendant is a CDCR employee who... may be presumed to have a legal right to obtain the requested record upon demand. Moreover, the requested document is highly relevant to plaintiff's allegations .... Any interview that defendant conducted with plaintiff during this two-month period is likely to shed light on her basis for classifying him as a Blood gang associate (if indeed she did so), and may lead to the discovery of admissible evidence of retaliatory motive or lack thereof. Defendant does not maintain that the alleged interview never took place, nor that this particular document does not exist. If it does exist, it is not clear to the court why defendant would be unable to locate a document that presumably was filed as a matter of course in the prison's recordkeeping system. The court will therefore grant plaintiff's motion as to RFP No. 7 and instruct defendant to redouble her efforts to locate the document. Doc. No. 29 at pp. 6-7. The supplemental responses were due on August 4, 2011.
In her request to respond to the court's order beyond time, defendant' counsel declares that she went to the California State Prison-Sacramento on August 2, 2011 "to review Plaintiff's central file, and to search for a copy of the interview notes that were completed during the lockdown in question." Doc. No. 32, p. 2, ¶ 5.
In her supplemental response, defendant again reports that she is unable to locate the requested document:
Defendant has been unable to locate this document. Plaintiff, along with all other inmates in the unit, were [sic] interviewed following the incident that took place on February 7, 2008. Those documents were collected and maintained by the Facility Captain. A diligent search was conducted and those documents could not be located.
Doc. No. 38, Ex. B. The copy of the supplemental responses provided to the court is signed by See Fed. R. Civ. Proc. 6(a)(6)(A). counsel for the defendant.
A. Plaintiff's Motion to File A Second Amended Complaint (Doc. No. 30) On June 7, 2010, this court dismissed plaintiff's first amended complaint with leave to amend the complaint within 28 days. On July 21, 2011, more than a year after expiration of the twenty-eight day period, plaintiff filed a motion for leave to file a second amended complaint. (Doc. No. 30.)
The Federal Rules of Civil Procedure provide that a party may amend his or her pleading "once as a matter of course within: (A) 21 days after serving it, or (B) ... 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." Fed. R. Civ. P. 15(a). "In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave where justice so requires." Id.; see also E.D. Local Rule 220. Although the allegations of a pro se complaint are held to "less stringent standards than formal pleadings drafted by lawyers," Haines v. ...