(PC) Thomas v. Fry ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 OTIS MICHAEL THOMAS, No. 2:19-cv-1041 KJM CKD P 12 Plaintiff, 13 v. ORDER 14 J.C. FRY, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. § 18 1983. On November 15, 2023, defendants Diaz and Macomber filed a motion seeking an order 19 directing plaintiff to provide further responses to their requests for production and interrogatories. 20 Because plaintiff did not file a response to the motion, on January 4, 2024, the court ordered him 21 to do so and warned him that a failure to file a response would result in a recommendation that 22 this action be dismissed. Plaintiff did not file a response. Instead, he filed and served further 23 responses to the requests for discovery identified above. 24 While it is clear plaintiff did not comply with the court’s order concerning his filing a 25 response to defendants’ motion to compel, the failure does not warrant dismissal as plaintiff did 26 attempt to address and resolve the issues with his supplemental responses to requests for 27 discovery. Accordingly, the court will not recommend that this action be dismissed. However, 28 plaintiff is warned that if these proceedings are delayed further by his failure to adhere to the 1 | rules, the court will be left with no alternative but to dismiss this case. See Ferdik v. Bonzelet, 2 | 963 F.3d 1258, 1260-61 (9th Cir. 1992) (court must consider, among other things, less drastic 3 || measures when considering whether to dismiss for violation of a court order). 4 Because plaintiff has supplemented his responses to defendants’ requests for production 5 || and interrogatories in a material manner in at least some respects, the pending motion to compel 6 || will be denied. Defendants will be granted 30 days within which to file another motion to compel 7 || further responses to their requests for production and interrogatories if warranted. If such a 8 | motion is filed, plaintiff must respond or this court will recommend that this action be dismissed. 9 Accordingly, IT IS HEREBY ORDERED that: 10 1. Defendants’ motion to compel (ECF No. 105) is denied. 11 2. Defendants are granted 30 days within which to file a motion to compel concerning 12 || their requests for production of documents and interrogatories. A response to the motion must be 13 || filed within 30 days of service of the motion. Defendants may file a reply within 14 days of 14 | service of the response. 15 | Dated: September 20, 2024 / 20 } Kt | / de □ ae 16 CAROLYN K DELANEY 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 | thom1041.mte 21 22 23 24 25 26 27 28