Jones v. Bishop, et al
Filing
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ORDER signed by Senior Judge Justin L. Quackenbush on 11/22/2011 GRANTING 85 Motion to Compel; GRANTING 89 Motion for Extension of Time to Extend Discovery. Discovery as to the 84 Motion for Summary Judgment due by 1/3/2012. Defendants are DIRE CTED to serve responses to Plaintiff's interrogatories no later than 12/1/2011. New discovery by Plaintiff to be served no later than 12/12/2011. Defendants' Responses due within 15 days of receipt. Plaintiff's Responses to the 84 Motion for Summary Judgment due by 1/16/2012. Defendants' Replies due 7 days after the Oppostiton is served. (Michel, G)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
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MALIK JONES,
Plaintiff,
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v.
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J.L. BISHOP, et al.,
NO. CV-09-0150-JLQ
ORDER GRANTING MOTION
TO COMPEL AND MOTION FOR
EXTENSION OF TIME
Defendants.
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BEFORE THE COURT are Plaintiff’s Motion to Compel Discovery (ECF No. 85) filed
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12 October 28, 2011 and Plaintiff’s Motion for Extension of Time (ECF No. 89) filed November
13 10, 2011. Defendants have not responded to these motions.
14 I.
Introduction
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Plaintiff is proceeding in forma pauperis pursuant to 28 U.S.C. § 1915. The cognizable
16 claims set forth Plaintiff’s First Amended Complaint which remain are:
1. Excessive force/bystander liability against Defendants Mitchell, Rigney, and
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18 Whitlow resulting from incidents occurring on April 22, 2008 and April 27, 2008;
2. Failure to protect against Defendants Felker and Cate; and
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3. Retaliation against Defendant McGuire.
21 The deadline for all discovery and the filing of motions to compel was October 1, 2011.
22 Defendants filed a Motion for Summary Judgment (ECF No. 84) on October 31, 2011, which
23 seeks dismissal of all the remaining claims on the merits. Plaintiff’s response is currently due
24 November 25, 2011. Plaintiff has been advised by the court and defense counsel of the
25 requirements when opposing a motion for summary judgment.
Discussion
26 II.
ORDER - 1
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Though Plaintiff’s motions only request time for additional discovery, the court
2 assumes Plaintiff also desire additional time to respond to the summary judgment motion.
3 A litigant who wishes additional facts to oppose a summary judgment motion may request to
4 do so under Rule 56 (d) (formerly Rule 56(f)), which provides: “If a nonmovant shows by
5 affidavit or declaration that, for specified reasons, it cannot present facts essential to justify
6 its opposition, the court may:
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(1) defer considering the motion or deny it;
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(2) allow time to obtain affidavits or declarations or to take discovery; or
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(3) issue any other appropriate order.”
10 Fed.R.Civ.P. 56(d). Typically, when the parties have no opportunity for discovery, denying
11 the Rule 56(f) motion and ruling on a summary judgment motion is likely to be an abuse of
12 discretion.
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Plaintiff’s untimely Motion to Compel (filed just days before the filing of the Motion
14 for Summary Judgment) indicates that at the time he filed his Motion, he had not yet received
15 responses to his interrogatories from Defendants. Plaintiff claims to have served them on
16 September 26 and September 27, 2011, less than the required forty-five days prior to the
17 October 1, 2011 discovery deadline. ECF No. 73 at 1-2. As no response to either the Motion
18 to Compel or Motion for Extension of Time has been filed by Defendants, it is unknown
19 whether Defendants ever responded to Plaintiff’s discovery.
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Despite Plaintiff’s untimely conduct, the court will allow Plaintiff a one-time short
21 extension to complete discovery.
The court has reviewed the five sets interrogatories
22 attached to the Motion to Compel, directed to each Defendant, other than Cate. The court
23 notes that in each set Plaintiff repeats questions such as “Do you take and/or use mind altering
24 substances...?”, “Do you use...mind altering drugs while at work...?”. These questions do not
25 seek information relevant to the Plaintiff’s claims or in opposing the Motion for Summary
26 judgment. Generally, however, the remaining four or five questions contained each seek to
ORDER - 2
1 discover the Defendants’ positions on issues related to Plaintiff’s claims. Some of these
2 positions are set forth in Defendant’s Motion for Summary Judgment. Although Plaintiff’s
3 interrogatories are inartfully drafted, the court finds they could be easily answered and could
4 potentially aid in Plaintiff’s response to the Motion for Summary Judgment.
5 III.
Conclusion and Order
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ACCORDINGLY, for the foregoing reasons, IT IS HEREBY ORDERED:
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1. Plaintiff’s Motion to Compel (ECF No. 85) and Motion for Extension of Time (ECF
8 No. 89) are GRANTED.
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2. The court will permit Plaintiff until January 3, 2012 to conduct any remaining
10 discovery necessary to respond to the Motion for Summary Judgment.
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a.
If Defendants have not yet done so, Defendants SHALL serve responses to
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Plaintiffs’ interrogatories (at ECF No. 85) (and any other outstanding discovery
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requests) no later than December 1, 2011. Defendants shall respond fully to the
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interrogatories, including the contentions set forth in narrative form. Responses
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shall not be evasive or non-responsive.
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b.
Any new discovery by Plaintiff shall be served no later than December 12,
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2011. Responses shall be served by Defendants within fifteen (15) days of
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receipt.
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3. Plaintiff’s response to the Motion for Summary Judgment shall be filed and served
20 no later than January 16, 2012. Defendants’ Reply shall be filed seven (7) days after the
21 opposition is served, per Local Rule 230(l).
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IT IS SO ORDERED. The District Court Executive is directed to enter
23 this Order and provide a copy to Plaintiff and counsel for the defense.
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DATED this 22nd day of November 2011.
s/ Justin L. Quackenbush
JUSTIN L. QUACKENBUSH
SENIOR UNITED STATES DISTRICT JUDGE
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ORDER - 3
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