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Melvin Joseph Simmons v. Deral G. Adams

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


September 26, 2012

MELVIN JOSEPH SIMMONS,
PLAINTIFF,
v.
DERAL G. ADAMS, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER DENYING DEFENDANT'S MOTION TO COMPEL AS MOOT AND GRANTING DEFENDANT THIRTY DAYS WITHIN WHICH TO RENEW MOTION (Doc. 41)

Plaintiff Melvin Joseph Simmons, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on July 14, 2010. This action is proceeding on Plaintiff's amended complaint, filed on January 27, 2011, against Defendant Sanders for use of excessive force, in violation of the Eighth Amendment of the United States Constitution.

On June 25, 2012, Defendant filed a motion to compel Plaintiff to respond to Defendant's interrogatories and requests for the production of documents, and for sanctions. Fed. R. Civ. P. 37(a), (d). Plaintiff filed an opposition on July 12, 2012, and Defendant filed a reply on July 19, 2012.

Defendant moved to compel responses to his discovery requests in the face of Plaintiff's failure to serve any responses. In his opposition, Plaintiff attests that he served his discovery responses by mail on June 20, 2012. In a declaration filed on July 5, 2012, and in his reply, Defendant argues that in light of the deficiencies in Plaintiff's late-served responses, he should be compelled to serve further responses to interrogatories 1-5, 8, 11, and 14-19, and to document production requests 1, 2, 7-10, 16, 18-29, and 31.

The Court declines to consider arguments and requests for relief raised for the first time in a supplemental declaration and a reply brief. Fed. R. Civ. P. 7(b); Local Rule 230. In as much as Defendant received responses to his discovery requests after he filed his motion to compel, his motion to compel initial responses is moot and shall be denied on that ground. The Court will grant Defendant thirty days within which to renew his motion to compel and for sanctions in light of Plaintiff's responses to the discovery requests.*fn1

Based on the foregoing, Defendant's motion to compel, filed on June 25, 2012, is HEREBY DENIED as moot, without prejudice to renewal within thirty (30) days from the date of service of this order.

IT IS SO ORDERED.


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