Willaims v. Sullivan et al
Filing
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ORDER signed by Magistrate Judge Kendall J. Newman on 11/03/11 plaintiff's motion for an extension of time 39 is denied. Within 5 days of the date of this order, defendant shall serve plaintiff with the ten at-issue interrogatories and file p roof of service with the court within 21 days, plaintiff shall serve defendants with his responses to the interrogatories; all objections have been waived. Plaintiff's motion for appointment of counsel 40 is denied. Defendant's motion t o modify the scheduling order 41 is granted. Defendant may file a motion to compel regarding plaintiff's responses to the at-issue interrogatories on or before 12/14/11; discovery is otherwise closed. The pretrial motion cut-off date is re-set for 04/20/12. (Plummer, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ANTHONY WILLIAMS,
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Plaintiff,
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vs.
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No. 2:09-cv-3160 KJN P
SULLIVAN, et al.,
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Defendants.
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ORDER
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Plaintiff is a state prisoner proceeding without counsel with a civil rights action
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pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff’s October 19, 2011 motion
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for extension of time. The background to this motion is as follows.
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On April 12, 2011 defendant Sullivan served plaintiff with ten interrogatories.
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Plaintiff failed to respond to these interrogatories. Accordingly, on July 21, 2011, defendant
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Sullivan filed a motion to compel. Plaintiff failed to file an opposition. On September 2, 2011,
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plaintiff was ordered to show cause within twenty-one days for his failure to file an opposition.
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Plaintiff did not respond to the September 2, 2011 order. Accordingly, on October 3, 2011, the
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undersigned granted the motion to compel and ordered plaintiff to serve defendant with his
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responses to the at-issue interrogatories within twenty-one days.
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In his October 19, 2011 motion for extension of time, plaintiff states that he
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received the October 3, 2011 order granting defendant’s motion to compel. Plaintiff states that
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he did not receive the at-issue interrogatories, defendant’s motion to compel, or the September 2,
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2011 order to show cause. Plaintiff states that he did not receive these documents because on
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March 9, 2011, he was transferred from California State Prison-Sacramento to California State
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Prison-Corcoran. Plaintiff states that he is just now receiving his mail that “backed up” as a
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result of his transfer. Plaintiff requests, in essence, that the order granting the motion to compel
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be vacated and that he be allowed to respond to the interrogatories, including objections.
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Plaintiff did not file a notice of change of address in March 2011 reflecting his
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new address at California State Prison-Corcoran. Rather, plaintiff’s October 19, 2011 motion for
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an extension of time contains his notice of change of address. Had plaintiff filed a timely notice
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of change of address, the interrogatories, motion to compel and order to show cause would have
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been served on plaintiff at California State Prison-Corcoran.
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It is the plaintiff’s responsibility to keep the court apprised of his current address
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at all times. Local Rule 182(f). Pursuant to Local Rule 182(f), service of documents at the
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record address of the party is fully effective. Plaintiff’s failure to file a timely notice of change of
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address, as required by the Local Rules, caused him not to receive defendant’s interrogatories, the
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motion to compel and order to show cause. For this reason, plaintiff’s request to vacate the order
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granting the motion to compel is denied. Plaintiff’s failure to file a notice of change of address
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has caused him to waive any objections to the interrogatories.1 Accordingly, plaintiff shall
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respond to defendant’s interrogatories within twenty-one days of the date of this order.
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In the order granting defendant’s motion to compel, the undersigned observed that
several of defendant’s interrogatories were contention interrogatories. “Contention
interrogatories, directed to a pro se litigant, are rarely appropriate[.]” Neilsen v. Society of New
York Hosp., 1988 WL 100197 at * 2 (S.D.N.Y. 1988); see also Pobursky v. Madera County,
2009 WL 1582847 at * 2 (E.D. Cal. 2009). The undersigned found that plaintiff had waived any
objection to the interrogatories on grounds that they were contention interrogatories.
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Plaintiff has also requested the appointment of counsel. The United States
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Supreme Court has ruled that district courts lack authority to require counsel to represent
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indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298
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(1989). In certain exceptional circumstances, the court may request the voluntary assistance of
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counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.
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1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). In the present case, the
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court does not find the required exceptional circumstances. Plaintiff’s request for the
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appointment of counsel will therefore be denied.
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On October 25, 2011, defendant Sullivan filed a motion to modify the scheduling
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order based on plaintiff’s failure to serve responses to the interrogatories. Pursuant to the March
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8, 2011 scheduling order, the discovery cut-off date was July 22, 2011, and the pretrial motion
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cut-off date was October 28, 2011. Defendant Sullivan requests that the discovery cut-off date
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be extended to January 22, 2012, and that the pretrial motion cut-ff date be extended to March 6,
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2012. Defendant states that the discovery cut-off date should be extended so that he may file a
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motion to compel based on plaintiff’s failure to respond to the interrogatories.
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Because defendant may wish to file a motion to compel based on plaintiff’s
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responses to the interrogatories, defendant’s motion to modify the scheduling order is granted.
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However, the dates defendant requests are modified as set forth below.
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Accordingly, IT IS HEREBY ORDERED that:
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1. Plaintiff’s motion for extension of time (Dkt. No. 39) is denied;
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2. Within five days of the date of this order, defendant shall serve plaintiff with
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the ten at-issue interrogatories and file proof of service with the court; within twenty-one days,
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plaintiff shall serve defendants with his responses to the interrogatories; all objections have been
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waived;
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3. Plaintiff’s motion for appointment of counsel (Dkt. No. 40) is denied;
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4. Defendant’s motion to modify the scheduling order (Dkt. No. 41) is granted;
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5. Defendant may file a motion to compel regarding plaintiff’s responses to the
at-issue interrogatories on or before December 14, 2011; discovery is otherwise closed;
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6. The pretrial motion cut-off date is re-set for April 20, 2012.
DATED: November 3, 2011
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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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