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Sullivan v. Biter

United States District Court, E.D. California

November 6, 2019

MICHAEL J. SULLIVAN, Plaintiff,
v.
M. D. BITER, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION TO COMPEL PLAINTIFF'S DEPOSITION AND DISCOVERY RESPONSES (ECF No. 62) ORDER GRANTING DEFENDANT'S MOTION TO MODIFY DISCOVERY AND SCHEDULING ORDER (ECF No. 63)

         Plaintiff Michael J. Sullivan is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

         Currently before the Court is Defendant M.D. Biter's motion to compel Plaintiff's deposition and discovery responses and Defendant's motion to modify the discovery and scheduling order, filed on April 18, 2019. (ECF Nos. 62, 63.)

         I.

         RELEVANT HISTORY

         This action is currently proceeding on Plaintiff's Eighth Amendment conditions of confinement claim against Defendant Biter, arising out of allegations of arsenic-contaminated drinking water at Kern Valley State Prison. (ECF No. 36.)

         On August 22, 2018, the Court issued a Discovery and Scheduling Order. (ECF No. 61.) The Discovery and Scheduling Order provides that responses to written discovery requests shall be due forty-five (45) days after the request is first served. (Id. at 1.) Further, the Discovery and Scheduling Order states that: “Pursuant to Federal Rule of Civil Procedure 30(a)(2)(B), Defendant may depose Plaintiff and any other witness confined in a prison upon condition that, at least fourteen (14) days before such a deposition, Defendant serves all parties with the notice required by Federal Rule of Civil Procedure 30(b)(1).” (Id. at 2.) Finally, as pertinent here, the Discovery and Scheduling Order provides that the deadline for the completion of all discovery, including filing all motions to compel discovery, is April 22, 2019, and that the deadline for filing all dispositive motions (other than a motion for summary judgment for failure to exhaust) is July 1, 2019. (Id. at 2-3.)

         On April 18, 2019, Defendant M. D. Biter filed a motion to compel Plaintiff's deposition and discovery responses. (ECF No. 62.)

         Also, on April 18, 2019, Defendant filed a motion to modify the discovery order. (ECF No. 63.) Plaintiff did not file an opposition to Defendant's motion to modify the discovery order or request an extension of time to file an opposition, and the time to do so has passed. Therefore, Defendant's motion to modify the discovery order has been submitted for review without oral argument. Local Rule 230(1).

         Following four extensions of time, Plaintiff's opposition to Defendant's motion to compel Plaintiff's deposition and discovery responses was due on or before October 18, 2019. (ECF Nos. 65, 67, 76, 79.) On October 21, 2019, Plaintiff filed a motion for a fifth extension of time to file opposition to Defendant's motion to compel Plaintiff's deposition and discovery responses, and for the appointment of counsel. (ECF No. 80.)

         On October 28, 2019, the Court denied Plaintiff's motion for a fifth extension of time and construed the motion as Plaintiff's opposition to Defendant's motion to compel Plaintiff's deposition and discovery responses. (ECF No. 81.)

         On November 4, 2019, Defendant filed a reply in support of his motion to compel Plaintiff's deposition and discovery responses. (ECF No. 82.)

         Therefore, Defendant's motion to compel Plaintiff's deposition and discovery responses and Defendant's motion to modify the discovery and scheduling order have been submitted for decision. Local Rule 230(1).

         II.

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