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Eric Wilton Burton v. Ken Clark

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


January 25, 2012

ERIC WILTON BURTON,
PLAINTIFF,
v.
KEN CLARK, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DENYING PLAINTIFF'S MOTION TO COMPEL

(DOC. 49)

Plaintiff Eric Wilton Burton ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation. Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act of 2000. This action is proceeding on Plaintiff's first amended complaint against Defendant Ken Clark. Pending before the Court is Plaintiff's motion to compel, filed October 24, 2011. Doc. 49. On November 3, 2011, Defendant filed his opposition. Doc. 51. On November 14, 2011, Plaintiff filed his reply. Doc. 52. The matter is submitted pursuant to Local Rule 230(l).

Plaintiff moves to compel disclosures by Defendant Clark. Pl.'s Mot. Compel 1-2. Plaintiff attaches no documents which indicate that he attempted to propound discovery requests on Defendant Clark prior to filing his motion. Defendant contends that Plaintiff has not propounded discovery on Defendant. Def.'s Opp'n 1:18-19. Defendant attaches as support a declaration by Defendants' counsel, attesting that he has not received any discovery from Plaintiff in this case. Douglas Decl. ¶ 2. Plaintiff contends only that his discovery requests are relevant, and that Defendant should be compelled to produce it. Pl.'s Reply 1-3.

Pursuant to Rule 37, a motion to compel a discovery response is permitted when a party fails to respond to an interrogatory, request for production, or other discovery request. See Fed. R. Civ. P. 37(a)(3). Such a motion, however, assumes that a discovery request was served on the party. As stated by Defendants' counsel, Defendant received no discovery request. Plaintiff has produced no documents which demonstrate that a discovery request was ever served on Defendant, as required by the Court's Local Rules. See L.R. 250.2, 250.3, 250.4 (requiring filing of discovery request when it is issue).

If Plaintiff is contending that Defendant has not disclosed pursuant to Rule 26(a)(1) of the Federal Rules of Civil Procedure, Plaintiff is again incorrect. Initial disclosures are exempt for actions brought by persons in custody proceeding without an attorney, as is the case here. Fed. R. Civ. P. 26(a)(1)(B)(iv).

Plaintiff's motion to compel is without merit. Accordingly, it is HEREBY ORDERED that Plaintiff's motion to compel, filed October 24, 2011, is denied.

IT IS SO ORDERED.

20120125

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