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Francisco Gil v. James A. Yates

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


January 2, 2013

FRANCISCO GIL,
PLAINTIFF,
v.
JAMES A. YATES, ET AL., DEFENDANTS.

ORDER GRANTING PLAINTIFF'S MOTION TO SERVE DEFENDANT BY CM/ECF Doc. 59

ORDER DENYING PLAINTIFF'S MOTION TO ORDER DEFENDANT TO DEPOSE PLAINTIFF BY WRITTEN QUESTIONS OR VIDEO IN MEXICO AND GRANTING DEFENDANT'S REQUEST TO DEPOSE PLAINTIFF AFTER MOTION FOR SUMMARY JUDGMENT, IF NECESSARY Doc. 61, 63, 67 ORDER DENYING PLAINTIFF'S MOTION TO COMPEL AND MOTION TO EXTEND DISCOVERY AND DISPOSITIVE MOTION DEADLINES Doc. 60, 62, 64, 68, 69, 70 ORDER DENYING PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO RESPOND TO MOTION FOR SUMMARY JUDGMENT, AS PREMATURE Doc. 71

On May 26, 2009, Plaintiff, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983, alleging he was found guilty of possession of a controlled substance when he should have been charged with possession of a controlled medication. Doc. 1. On September 2, 2011, the Court ordered this action to proceed on a cognizable

Fourteenth Amendment due process claim against Defendant J. Woodend, and dismissed all remaining claims and defendants. Doc. 41. On January 30, 2012, the Court issued a discovery and scheduling order, setting a discovery deadline of September 30, 2012, and a dispositive motion deadline of December 10, 2012. Doc. 51. On August 10, 2012, the Court granted Plaintiff's motion to extend the discovery deadline to November 14, 2012. Doc. 58. The Court also extended the dispositive motion deadline to January 24, 2013. Id.

On August 29, 2012, Plaintiff filed one (1) motion to serve Defendant by CM/ECF since Plaintiff is sending mail from Mexico; two (2) motions for Defendant to depose Plaintiff by written questions or video in Mexico; and three (3) motions to extend the discovery and dispositive motion deadlines. Docs. 59-64. On October 4, 2012, Defendant filed a response to Plaintiff's six (6) motions and a request to depose Plaintiff following disposition of a motion for summary judgment, if necessary. Doc. 67. On November 7, 2012, Plaintiff filed a motion to extend discovery and dispositive motion deadlines, a motion to compel, and a motion that the Court grant his motions. Docs. 68-70. On December 3, 2012, Plaintiff filed a motion for extension of time to respond to any motion for summary judgment. Doc. 71. On December 5, 2012, Defendant filed an opposition to Plaintiff's motion to compel. Doc. 72. This matter is deem submitted pursuant to Local Rule 230(l).

First, Defendant does not object to Plaintiff serving him through CM/ECF. See Def. Resp. at 3-4, Doc. 67. Second, Plaintiff moves to compel discovery, but Defendant has complied with all discovery requests. Id. at 2; see also Def. Opp'n Mot. Compel at 2, Doc. 72. Third, Plaintiff does not provide good cause to further extend the discovery and dispositive motion deadlines. See Docs. 60, 62, 64, 68. This case has been pending since 2009, and the Court already granted Plaintiff's motion to extend the discovery deadline from September 2012 to November 2012. Plaintiff states the Court should extend the discovery and dispositive motion deadlines because Defendant has failed to comply with discovery. Doc. 62, 68. However, the Court has found that Defendant properly responded to Plaintiff's discovery requests. See supra. Moreover, in Plaintiff's premature motion for extension of time to respond to Defendant's [non-pending] motion for summary judgment, Plaintiff acknowledges receipt of Defendant's response to his motions and does not renew his motion to extend the discovery and dispositive motion deadlines. See Pl. Mot. EOT at 1-2, Doc. 71. Plaintiff also acknowledges the delay in receiving correspondence in Mexico. Id. Fourth, the Court will not order Defendant to conduct a deposition by video or questions, as Defendant has submitted a lengthy declaration to the Court regarding the difficulty in obtaining such a deposition. See Def. Resp. Decl. Hung, Doc. 67-1. Finally, Defendant moves to take Plaintiff's deposition following the motion for summary judgment, if necessary. See Def. Resp. at 1-3, Doc. 67. Defendant states that his motion for summary judgment will be based on Plaintiff's alleged admission of guilty in the Rules Violation Report and his unsuccessful petition for writ of habeas corpus, based on allegations of due process for the same hearing at issue in this case. Id. at 3.

Based on the foregoing, it is HEREBY ORDERED that:

1. Plaintiff's motion to serve Defendant by CM/ECF is GRANTED;

2. Plaintiff's motion to order Defendant to depose Plaintiff by written questions or video in Mexico is DENIED;

3. Defendant's motion to depose Plaintiff, if necessary, after the Court decides the motion for summary judgment is GRANTED;

4. Plaintiff's motion to compel is DENIED;

5. Plaintiff's motion to extend the discovery and dispositive motion deadline is DENIED; and

6. Plaintiff's motion for extension of time to respond to any motion for summary judgment is DENIED, as premature.

IT IS SO ORDERED.

UNITED STATES MAGISTRATE JUDGE

20130102

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