Opinion
No. 2:08-cv-2398 LKK JFM (PC).
November 17, 2010
ORDER
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. This matter is proceeding before the undersigned with the consent of the parties pursuant to 28 U.S.C. § 636(c). This matter is before the court on plaintiff's motion to serve additional discovery requests and on defendants' motion to modify the scheduling order.
By his motion, filed August 10, 2010, plaintiff seeks an extension of the discovery deadline in order to leave of court to serve one final set of discovery requests on defendants. While plaintiff did not tender the proposed discovery with his motion, he apparently served the requests on defendants who have filed copies thereof with their opposition to the motion.
Pursuant to the scheduling order filed in this action, all discovery was to have been completed by July 2, 2010, all discovery requests were to have been served sixty days prior to that date, and pretrial motions were due on or before September 24, 2010. See Order filed April 6, 2010. By order filed June 29, 2010, plaintiff's motion to file a first amended complaint was granted, all defendants except defendant Ralls, who had not yet been served with process, were directed to answer the first amended complaint, and counsel for defendants was directed to inform the court whether counsel would accept service on behalf of defendant Ralls. On the same day, defendants' motion to extend the discovery deadline was granted, that deadline was extended to August 16, 2010 for the limited purpose of completing plaintiff's deposition, and the time for filing dispositive motions was extended to November 8, 2010. Defendants now seek an extension of the latter deadline due to the pendency of plaintiff's motion and, in the alternative, due to counsel's other caseload obligations.
In opposition to the motion, defendants contend that plaintiff has not shown good cause for his failure to propound the discovery requests at issue during the time set in the court's original scheduling order, and that plaintiff failed to raise his need for additional discovery at the time defendants filed their motion to extend the discovery deadline. Review of the record shows that under the initial scheduling order plaintiff had less than thirty days to serve discovery requests from the time that order was filed until the deadline set therein. Moreover, plaintiff has represented that the prison in which he is incarcerated was on lockdown starting on May 20, 2010 until at least July 13, 2010. Thus, plaintiff's opportunity to propound discovery has been limited.
Several of the discovery requests which plaintiff now seeks leave to propound appear to be relevant to the merits of claims raised in the first amended complaint. Accordingly, good cause appearing, the court will extend the time for filing dispositive motions for a period of sixty days. In addition, the court will direct defendants to respond within thirty days to any and all of the discovery requests propounded by plaintiff that seek information related to any issue defendants intend to raise either in a summary judgment motion or, as appropriate, at trial. With respect to matters that might be raised on a summary judgment motion, defendants are referred to the provisions of Fed.R.Civ.P. 56(f), and directed to respond to any and all of the discovery requests that would meet the requirements of a Rule 56(f) request. Defendants are cautioned that failure to comply with this order may result in an order limiting or precluding consideration of evidence tendered in support of a defense motion for summary judgment or at trial
In accordance with the above, IT IS HEREBY ORDERED that
1. Plaintiff's August 10, 2010 motion for leave to file additional discovery requests is granted in part.
2. Within thirty days from the date of this order, defendants shall serve on plaintiff responses to any and all discovery requests propounded pursuant to plaintiff's August 10, 2010 motion that seek information related to any issue defendants intend to raise either in a summary judgment motion or, as appropriate, at trial, including but not limited to any and all discovery requests that would meet the requirements of a request pursuant to Fed.R.Civ.P. 56(f). Defendants are cautioned that failure to comply with this order may result in an order limiting precluding consideration of evidence tendered in support of a defense motion for summary judgment or at trial.
3. Defendants' October 29, 2010 motion to modify the scheduling order is granted.
4. The time for filing dispositive motions in this action is extended to January 14, 2011.
DATED: November 16, 2010.