(PC) Driver v. Kern County Superior Court ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BILLY DRIVER, No. 2: 20-cv-1665 TLN KJN P 12 Plaintiff, 13 v. ORDER 14 KERN COUNTY SUPERIOR COURT, et al., 15 Defendants. 16 17 Introduction 18 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 19 to 42 U.S.C. § 1983. Pending before the court is defendants’ motion to compel, defendants’ 20 motion to modify the scheduling order and plaintiff’s request for an order to show cause. (ECF 21 Nos. 153, 177.) 22 For the reasons stated herein, defendants’ motion to compel and motion to modify the 23 scheduling order are granted, and plaintiff’s request for an order to show cause is denied. 24 Order to Show Cause Addressed to Plaintiff re: Failure to Oppose Motion to Compel 25 On May 26, 2022, defendants filed the pending motion to compel. (ECF No. 153.) 26 Plaintiff did not oppose defendants’ motion to compel. Accordingly, on August 1, 2022, the 27 undersigned granted plaintiff fourteen days to show cause for his failure to oppose the motion to 28 compel. (ECF No. 173.) On August 22, 2022, plaintiff filed a response to the order to show 1 cause. (ECF No. 176.) 2 Good cause appearing, the August 1, 2022 order to show cause is discharged. 3 Defendants’ Motion to Compel 4 In the motion to compel, defendants contend that plaintiff failed to respond to a request 5 for production of documents, a request for admissions and interrogatories. 6 In particular, defendants contend that on February 8, 2022, defendants served plaintiff 7 with a Notice of Taking Deposition and a Request for Production of Documents. (ECF No. 153-5 8 at 3-6.) Defendants requested that plaintiff bring documents with him to the deposition scheduled 9 for March 28, 2022. (Id.) The deposition was scheduled to be conducted remotely by 10 videoconference. (Id. at 2.) 11 The March 28, 2022 deposition was not completed because plaintiff stated that he felt 12 hungry and light headed. (ECF No. 153-4 at 2.) Plaintiff brought documents with him to the 13 deposition. (Id.) Defense counsel asked plaintiff to mail the documents to defense counsel. (Id.) 14 Plaintiff told defense counsel that he did not have the resources to mail the documents. (Id.) 15 Because the March 28, 2022 deposition ended in the midst of questioning, the deposition 16 was continued to May 23, 2022. (Id.) Before the May 23, 2022 deposition began, which was also 17 apparently conducted by videoconference, defense counsel asked plaintiff for the documents. 18 (Id.) Plaintiff told defense counsel that he had sent them. (Id.) Defense counsel did not receive 19 the documents. (Id.) 20 On March 24, 2022, defense counsel served plaintiff with interrogatories and a request for 21 admissions. (ECF No. 153-5 at 8-35.) Before the May 23, 2022 deposition began, defense 22 counsel informed plaintiff that she had not received his responses to the interrogatories and the 23 request for admissions. (ECF No. 153-4 at 2-3.) Plaintiff told defense counsel that he did not 24 receive them. (Id. at 3.) In the motion to compel, defendants contend that mail logs indicate that 25 plaintiff received mail from defense counsel’s office on March 25 and March 29, 2022. (ECF No. 26 153-3 at 2.) 27 In the motion to compel, defendants request an order compelling plaintiff to respond to the 28 request for production of documents, the request for admissions and interrogatories. Fed. Rule of 1 Civ. Pro. 37(a)(3)(B) (a party may file a motion to compel when the other party fails to respond to 2 discovery requests.). 3 In the response to the order to show cause, plaintiff alleges that he “promptly” served 4 defendants with responses to the request for admissions and interrogatories. (ECF No. 176 at 2- 5 3.)1 As discussed above, defendants did not receive these responses. Good cause appearing, 6 plaintiff is ordered to re-serve defendants with his responses to interrogatories and request for 7 admissions within thirty days of the date of this order.2 8 Plaintiff’s response to the order to show cause does not address his response to 9 defendants’ request for production of documents. In the motion to compel defendants contend 10 that while plaintiff claims he mailed his response to the request for production of documents, 11 defendants did not receive the response. 12 Good cause appearing, plaintiff is ordered to respond to the request for production of 13 documents. However, rather than having plaintiff mail the documents to defendants, defendants 14 shall arrange with the Litigation Coordinator for these documents to be produced from plaintiff to 15 the Litigation Coordinator and copied. The original documents shall be returned to plaintiff. 16 Defendants shall arrange with the Litigation Coordinator for production of the copied documents 17 to defendants. 18 In the response to the order to show cause, plaintiff alleges that on July 19, 2022, he was 19 transferred to California State Prison-Sacramento (“CSP-Sac”) and has not received his legal 20 property. (ECF No. 176 at 4.) Plaintiff also alleges that he has no mailing envelopes. (Id.) If 21 plaintiff does not have access to his legal property and/or mailing envelopes at the time he 22 receives the instant order, he shall inform the court within ten days of the date of this order. 23 In an abundance of caution, defendants are ordered to re-serve plaintiff with the at-issue 24 1 The court is troubled by plaintiff’s representations about things that he sent or did not receive, 25 that appear to be not borne out by the records. 26 2 In the motion to compel, defendants contend that under Federal Rule of Civil Procedure 27 36(a)(3), the matters contained in the requests for admissions are deemed admitted. By granting the motion to compel, the undersigned does not find that the requests for admissions are deemed 28 admitted. 1 request for production of documents, request for admissions and interrogatories within five days 2 of the date of this order. 3 Defendants’ Request to Modify Scheduling Order 4 Under Federal Rule of Civil Procedure 16(b), a movant must demonstrate good cause to 5 modify a scheduling order. The “good cause” standard “focuses on the diligence of the party 6 seeking amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992). 7 The discovery deadline was May 27, 2022, and the dispositive motion deadline was 8 August 19, 2022. (ECF No. 110). 9 In the motion to compel, defendants contend that they were unable to complete discovery 10 by the May 27, 2022 deadline based on plaintiff’s refusal to respond to the discovery requests. 11 Defendants do not describe any additional discovery they intend to conduct. Therefore, 12 defendants have not shown good cause to conduct additional discovery. However, defendants 13 may file a motion to compel regarding plaintiff’s responses to the request for production of 14 documents, interrogatories and request for admissions addressed in the motion to compel within 15 thirty days of service of plaintiff’s responses. 16 Plaintiff’s Request for Order to Show Cause (ECF No. 177) 17 On August 26, 2022, plaintiff filed a pleading docketed as “Request for Order to Show 18 Cause.” In this pleading, plaintiff requests that the court order his immediate release based on 19 threats to his safety by prison staff. Plaintiff is informed that the court does not have the authority 20 to order his release in this civil rights action. Accordingly, plaintiff’s request for release from 21 custody is denied.3 22 Accordingly, IT IS HEREBY ORDERED that: 23 1. The August 1, 2022 order to show cause addressed to plaintiff is discharged; 24 2. Defendants’ motion to compel (ECF No. 153) is granted; 25 3. Within thirty days of the date of this order, plaintiff shall re-serve defendants with 26 27 3 Plaintiff is informed that the court cannot issue orders against individuals who are not parties to a suit pending before it. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112 28 (1969). No defendants are located at CSP-Sac, where plaintiff is now housed. ] responses to the request for admissions and interrogatories addressed in the motion to 2 compel; 3 4. Within thirty days of the date of this order, defendants shall arrange for production of 4 plaintiff's documents in response to the request for production of documents, as 5 discussed in this order; 6 5. Within five days of the date of this order, defendants shall re-serve plaintiff with the 7 request for production of documents, request for admissions and interrogatories 8 addressed in the motion to compel; 9 6. □□ plaintiff does not have access to his legal property or mailing envelopes at the time 10 he receives the instant order, he shall inform the court within ten days of the date of 1] this order; 12 7. Defendants’ request to modify the scheduling order, contained in the motion to 13 compel, is granted; defendants may file a motion to compel regarding plaintiff's 14 responses to the request for production of documents, interrogatories and request for 15 admissions addressed in the motion to compel within thirty days of service of 16 plaintiffs responses; discovery is otherwise closed; 17 8. The August 19, 2022 dispositive motion deadline is vacated and reset for January 20, 18 2023; 19 9. Plaintiff's request for an order to show cause (ECF No. 177) is denied. 20 | Dated: August 30, 2022 Aectl Aharon 22 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 23 24 25 Dr1665.com(3) 26 27 28