(PC) Jones v. Shute ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARCELL JONES, No. 2:22-cv-1384 DB P 12 Plaintiff, 13 v. ORDER 14 MICHELLE SHUTE, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding with a civil rights action under 42 U.S.C. §1983. 18 Plaintiff alleges defendants were deliberately indifferent to his serious medical needs in violation 19 of the Eighth Amendment when they failed to provide timely treatment for a back condition. On 20 May 5, 2023, this court issued a Discovery and Scheduling Order (“DSO”). (ECF No. 24.) 21 Among other things, that order informed the parties that responses to discovery requests were due 22 forty-five days after the requests were served. 23 Defendants have filed a motion to compel plaintiff to respond to discovery. (ECF No. 24 27.) Defendants state that on July 3, they sent plaintiff Requests for Production of Documents 25 and Requests for Admissions. Pursuant to the DSO, plaintiff’s responses were due by August 26 //// 27 //// 28 //// 1 21.1 When they received no response from plaintiff, on August 25 defendants sent plaintiff a 2 meet and confer letter to attempt to resolve the problem. By September 1 when they filed the 3 motion to compel, defendants had not received a response to the meet and confer letter. They 4 had, however, received a copy of plaintiff’s request for an extension of time. 5 In a document dated August 24, and filed here on September 1, plaintiff requests a 60-day 6 extension of time to respond to the discovery. (ECF No. 28.) Defendants oppose the request. 7 (ECF No. 29.) 8 In his request, plaintiff provides no reasons he was unable to meet the discovery deadline 9 or justifying an additional 60 days to do so. At this point, plaintiff has had over three months to 10 provide the discovery responses to defendants. Based on the lack of any notice to the contrary, 11 this court assumes plaintiff still has not provided the responses to defendants. Because he has had 12 a lengthy period of time to respond to defendants’ requests and because he fails to show good 13 cause for any additional time, this court will deny plaintiff’s request. 14 Based on plaintiff’s failure to provide any responses to discovery, defendants have 15 demonstrated good cause to compel plaintiff to do so. See Fed. R. Civ. P. 37(a)(4). Plaintiff will 16 be ordered to provide responses to the discovery within twenty days. Plaintiff is warned that if he 17 fails to provide defendants with timely responses to their discovery requests, this court will 18 sanction him either by granting defendants’ request that plaintiff pay their costs to make the 19 motion to compel or by dismissing this case. See Fed. R. Civ. P. 37(d) (describing possible 20 sanctions); Wyle v. R.J. Reynolds Indus., Inc., 709 F.2d 585, 589 (9th Cir. 1983) (“Federal Rule 21 of Civil Procedure 37 authorizes the district court, in its discretion, to impose a wide range of 22 sanctions when a party fails to comply with the rules of discovery.” (internal citations omitted)). 23 Defendants argue that under Rule 36(a)(3) plaintiff has waived any objections to the 24 discovery because any responses are untimely. While that is technically true, plaintiff’s request 25 for an extension of time is deemed filed on the date he provided it to prison authorities for 26 27 1 This date considers both the 45-day deadline set out in the DSO and the additional three days provided by the Federal Rules because the discovery was provided to plaintiff through the U.S. 28 Mail. Fed. R. Civ. P. 6(d). 1 | mailing. See Houston v. Lack, 487 U.S. 266, 270 (1988) (describing “mailbox rule”). Plaintiff 2 || did not provide a proof of service with his request which would show when he submitted his 3 | request for mailing. This court considers the date plaintiff prepared the request, August 24, as the 4 | date he mailed it. Therefore, plaintiff filed his request just three days after the discovery was due. 5 || Given the delays prisoners often experience in receiving mail and recognizing plaintiff’s pro se 6 | status, this court will consider plaintiff’s request for an extension of time to be timely for 7 | purposes of the waiver rule. This court finds plaintiff has not waived objections to the discovery. 8 For the foregoing reasons, and good cause appearing, IT IS HEREBY ORDERED that: 9 1. Defendants’ motion to compel (ECF No. 27) is granted. Within twenty days of the 10 | date of this order, plaintiff shall provide defendants with his responses to the Requests for 11 || Production of Documents and the Requests for Admissions. If plaintiff fails to provide 12 | defendants with timely responses, this court will impose sanctions. 13 2. Plamtiff’s motion for an extension of time (ECF No. 28) is denied. 14 | Dated: October 10, 2023 16 7 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 DB Prisoner Inbox/Civil Rights/S/jone1384.mtc 24 25 26 27 28