United States District Court, E.D. California
G. J. GUTIERREZ, Plaintiff,
v.
A. GUTIERREZ, Defendant.
ORDER GRANTING DEFENDANT’S MOTION TO COMPEL
DISCOVERY RESPONSES (ECF NO. 87) ORDER EXTENDING DISPOSITIVE
MOTION FILING DEADLINE (ECF NOs. 94, 95)
Plaintiff
G. J. Gutierrez is appearing pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
Pending before the Court is Defendant’s motion to
compel further discovery responses filed on May 12, 2016.
(ECF No. 87.) On June 20, 2016, Plaintiff filed opposition to
the motion. (ECF No. 90.) On July 13, 2016, Defendant filed a
request to extend time to file a dispositive motion. (ECF
Nos. 94, 95.)[1]
This
action proceeds on the original complaint against Defendant
on Plaintiff’s claims of excessive force and failure to
protect in violation of the Eighth Amendment. The allegations
stem from a prison disturbance that occurred at Pleasant
Valley State Prison.
Defendant
seeks to compel responses to interrogatories and a request
for production of documents. On December 7, 2015, an order
was entered, granting Defendant’s motion to compel
responses to interrogatories and request for production of
documents within forty-five days. (ECF No. 75.) On February
1, 2016, Plaintiff was granted a thirty day extension of time
(ECF No. 76.) On March 2, 2016, The Court granted
Plaintiff’s second request for an extension of time.
(ECF Nos. 79, 80.) On March 15, 2016, Plaintiff was granted a
third request for extension of time (ECF No. 84.) The Court
also granted Defendant’s three requests to extend time
to file a dispositive motion based on his need for the
discovery in order to file a dispositive motion. (ECF Nos.
71, 85, 89.) In his motion to compel, Defendant indicates
that although he has received discovery responses from
Plaintiff, the discovery responses are not complete.
Defendant’s motion is supported by the declaration of
counsel. Counsel declares that Defendant has awaited receipt
of additional discovery responses from Plaintiff ever since
his third request for extension of time. To date, counsel has
not received any supplemental responses to the discovery
requests nor any of the documents contemplated in
Plaintiff’s third request for additional time. (Mayer
Decl. ¶ 4.)
In his
opposition to the motion to compel, Plaintiff argues that his
mail is being tampered with and is not being processed by
prison officials. Plaintiff makes vague references to rogue
prison guards who are taking part in intercepting
Plaintiff’s incoming and outgoing mail. Plaintiff
indicates that he “did place the information that was
available to me in the mail addressed to defense counsel
before the last issued cut-off date. Defense counsel has been
served with the requested documentation. Whether her
counterparts actually processed and delivered it to her in an
untimely fashion for nefarious purposes is to be determined.
I say yes.” (ECF No. 90, ¶ 5.)
Defendant’s
fourth motion to modify the scheduling order to extend the
dispositive motion filing deadline filed on July 13, 2016, is
supported by the declaration of counsel. Counsel declares
that based on Plaintiff’s third request for additional
time and the dates of proofs of service, it became apparent
that Plaintiff’s discovery responses remained
incomplete. Counsel anticipated receiving further discovery
responses from Plaintiff, but has not received any to date.
(ECF No. 95 at 5:21.)
Defendant
requests that the Court find that Plaintiff has failed to
timely respond and issue an order compelling further
responses and production of documents, without objection, on
a date certain. Fed.R.Civ.P. 33(b)(2)-(3) &
34(b)(2)(A)-(B) (discovery requests must be individually
responded to within thirty days of service or per Court
order; Richmark Corp. v. Timber Falling Consultants,
959 F.2d 1468, 1473 (9th Cir. 1992)(untimely objections
waived).
Plaintiff
has been provided ample opportunity to produce the
supplemental responses sought by Defendant. The Court finds
that Plaintiff’s statement that he provided the
information that was available to be vague. Plaintiff must
submit the supplemental answers to interrogatories and
requests for production of documents. Plaintiff does not
offer any objections, or any justification for his refusal to
submit complete responses to Defendant’s request.
Plaintiff has been ordered to provide the responses to
discovery sought by Defendant, and has been granted three
extensions of time to do so.
The
Court cannot hold this action in abeyance indefinitely
pending Plaintiff’s responses to Defendant’s
discovery requests. Plaintiff offers no justification for
continuing to delay this action. The Court will provide
Plaintiff with one further opportunity to respond, without
objection, to Defendant’s discovery requests. Plaintiff
is warned that if he fails to timely comply with this order,
he will be subject to sanctions, up to and including
dismissal of this action. No further extensions of time will
be granted.
Accordingly,
IT IS HEREBY ORDERED that:
1.
Defendant’s motion to compel discovery responses is
GRANTED. Plaintiff shall serve his responses, without
objection, to Defendant’s discovery requests on counsel
for Defendant on or before August 15, 2016;
2.
Defendant’s motion to modify the scheduling order is
GRANTED. The dispositive motion filing deadline is continued
to September 16, 2016; and
3.
Plaintiff is warned that his failure to timely comply with
this order may result in sanctions, up to and including
dismissal of this action.
IT IS
...