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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

JOEL ANTHONY HOLLEY,

Plaintiff, No. CIV S-04-2708 LKK PAN P

vs.

TOM L. CAREY, et al.,

Defendants. ORDER

 /

Plaintiff is a prisoner without counsel seeking relief pursuant to 42 U.S.C. § 1983.

In the December 10, 2004 complaint, plaintiff alleges that: (1) Carey violated plaintiff’s rights

under the Americans with Disabilities Act (ADA) by demoting plaintiff on the ground plaintiff

poses an unreasonable risk to himself and others if he uses certain machinery; and (2) Huff, Lane

and Korte violated plaintiff’s rights under the Equal Protection Clause of the Fourteenth

Amendment by removing plaintiff from his prison job and giving him a lower paying job because

plaintiff receives mental health services. Plaintiff asserts he can prove disparate treatment with

evidence that prisoners who repeatedly injured themselves or others on the job were not removed

from their positions, but plaintiff has not injured himself or others but was removed. 

On September 9, 2005, plaintiff filed a motion to compel defendants to produce

documents pursuant to Fed. R. Civ. P. 37(a)(2)(B). On September 30, 2006, defendants filed an

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opposition. On May 24, 2006, defendants were granted leave to file a supplemental opposition,

which was filed on June 20, 2006. On June 30, 2006, plaintiff filed a supplemental reply.

Plaintiff contends defendants waived all objections because they served their

responses late. Defendants contend the discovery responses were prematurely propounded as

they were mailed prior to defendants’ appearance in this action.

On or around June 6, 2005, plaintiff served defendants with a request for

production of documents. However, defendants were not served with process until May 6, 2005

and did not appear in this action until June 14, 2005 when they filed their answer. The court

subsequently issued a discovery order on June 21, 2005. On July 13, 2005, the court directed

plaintiff not to file any further discovery requests with the court unless permitted to do so under

the local rules. On July 19, 2005, plaintiff served a duplicate discovery request. Defendants

served a response on August 11, 2005. Plaintiff filed his motion to compel responses on

September 9, 2005.

Defendants’ objection is well taken. Plaintiff’s June 6, 2005 discovery request

was premature. Plaintiff’s duplicate request, sent July 19, 2005, was timely. Thus, defendants’

August 11, 2005 responses to the duplicate request were timely. Plaintiff’s objections that

defendants’ responses were untimely are, therefore, overruled. 

However, it appears that disputes remain concerning defendants’ responses to the

requests for production of documents. Moreover, further responses have been provided since the

filing of plaintiff’s motion. The record at present does not clearly demonstrate the requests that

remain in dispute nor the parties’ positions thereto. Accordingly, the court will deny plaintiff’s

motion to compel discovery without prejudice to its renewal within a brief period of time. The

discovery and dispositive motion deadlines will be extended for a brief period to allow resolution

of the discovery disputes that remain at issue herein.

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IT IS HEREBY ORDERED that:

1. Plaintiff’s September 9, 2005, motion to compel is denied without prejudice;

2. The discovery deadline is extended from June 9, 2006 to August 30, 2006, for

the sole purpose of allowing plaintiff leave to file a motion to compel discovery concerning the

requests for production of documents remaining at issue herein; the dispositive motion deadline

is extended from August 4, 2006 to September 29, 2006. No new discovery requests may be

propounded at this time.

3. Within twenty days from the date of this order, plaintiff shall file a motion to

compel discovery that sets forth the specific items that remain in dispute. Defendants shall file

an opposition within fifteen days thereafter. Plaintiff’s reply, if any, shall be filed ten days

thereafter.

DATED: July 24, 2006.

\001; holl2708.mtc

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