Holliday v. Sisto

Full title: CURTIS HOLLIDAY, Plaintiff, v. D.K. SISTO, et al., Defendants

Court: United States District Court, E.D. California

Date published: Nov 25, 2008

No. CIV S-07-1422-LKK-CMK-P (E.D. Cal. Nov. 25, 2008)

Opinion

No. CIV S-07-1422-LKK-CMK-P.

November 25, 2008

ORDER

LAWRENCE KARLTON, Senior District Judge

Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is a motion for reconsideration of the magistrate judge's June 12, 2008 order (Doc. 26).

Pursuant to Eastern District of California Local Rule 72-303(b), "rulings by Magistrate Judges shall be final if no reconsideration thereof is sought from the Court within ten court days . . . from the date of service of the ruling on the parties." Here, the motion for reconsideration of the magistrate judge's order was filed on October 21, 2008, which is more than 10 days from the date of service of the magistrate judge's order.¹ The motion is, therefore, untimely.

1 Pursuant to Houston v. Lack, 487 U.S. 266 (1988), for pro se prisoner litigants seeking reconsideration, the court has calculated the 10-day period from the date the motion was delivered to prison authorities for mailing to the court. Otherwise, the 10-day period has been calculated based on the date the motion for reconsideration was actually filed.

However, even if the motion was filed timely, the court would deny the motion because it does not appear that the magistrate judge's ruling was clearly erroneous or contrary to law. See Eastern District of California Local Rule 72-303(f) (a magistrate judge's order shall be upheld unless "clearly erroneous or contrary to law"). In his request for reconsideration of the order denying his request for counsel, he claims defense counsel is not cooperating in the discovery process. However, discovery closed on October 13, 2008. Any motions necessary to compel discovery were to be filed by that date. None have been filed. In addition, plaintiff requested leave to take oral depositions of the defendants on May 15, 2008. That request was denied, but plaintiff was granted leave to take the defendants' depositions by written questions. Plaintiff had until July 27, 2008 to file and serve his proposed deposition questions. He failed to do so. Therefore, his allegation that defense counsel is not cooperating in the discovery process is also untimely.

Accordingly, IT IS HEREBY ORDERED that the motion for reconsideration (Doc. 26) is denied as untimely.