The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DENYING MOTION FOR ORDER COMPELLING DEPOSITION AND FOR SANCTIONS, AND GRANTING FORTY-FIVE DAY EXTENSION OF TIME TO DEPOSE PLAINTIFF (Doc. 111)
Plaintiff Michael Contreraz, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on December 14, 2006. This action is proceeding on Plaintiff's amended complaint, filed on February 3, 2009, against Defendants Stockbridge-Cota,*fn1 Rodriguez, Franco, and Carlos for violation of the Eighth Amendment of the United States Constitution. Pending before the Court is Defendants' motion for an order compelling Plaintiff's deposition, for sanctions, and for an extension of the discovery deadline, filed on July 12, 2012. Fed. R. Civ. P. 37. Plaintiff did not file a response. Local Rule 230(l).
Defendants move for an order compelling Plaintiff's deposition and for
sanctions on the ground that Plaintiff failed to appear and testify at
his deposition, which was noticed for July 10, 2012.*fn2
Fed. R. Civ. P. 37(a)(3)(B)(i). Defendants state that on May
21, 2012, they served Plaintiff with a notice of taking of his
deposition on July 3, 2012. However, due to the press of
Defendants served an amended notice on June 27, 2012, noticing the deposition for July 10, 2012. Although Plaintiff was initially present in the deposition room, he refused to testify and he was escorted out of the room by a correctional officer.
Pursuant to the Court's discovery and scheduling order filed on August 8, 2011, Defendants may depose Plaintiff or any other incarcerated witness so long as they serve the requisite notice at least fourteen days before the deposition. Fed. R. Civ. P. 30(b). Defendants' amended notice did not comply with the terms of the Court's order, as it was not served at least fourteen days before the deposition. Because Defendants failed to comply with the discovery order, they are not entitled, at this juncture, to an order compelling Plaintiff's deposition and for sanctions.
Given Plaintiff's documented refusal to answer questions, good cause exists to extend the discovery deadline to allow Defendants another opportunity to properly notice and take Plaintiff's deposition. Fed. R. Civ. P. 16(b). The reason for Plaintiff's lack of cooperation is unknown, but Plaintiff is cautioned that he is required to submit to a properly noticed deposition and the failure to do so will result in the imposition of sanctions.
Accordingly, based on the foregoing, it is HEREBY ORDERED that:
1. Defendants' motion for an order compelling Plaintiff's deposition and for sanctions, filed on July 12, 2012, is DENIED on the ground that Defendants failed to properly notice the deposition in compliance with the discovery order; and
2. Defendants' motion to extend the discovery deadline is GRANTED and they have forty-five (45) days from the date of service of this order within which to notice and conduct Plaintiff's deposition.