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BURGOS v. LONG, 2:11-cv-1906 JAM JFM (PC). (2013)

Court: District Court, E.D. California Number: infdco20130910993 Visitors: 14
Filed: Sep. 09, 2013
Latest Update: Sep. 09, 2013
Summary: ORDER ALLISON CLAIRE, Magistrate Judge. Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. 1983. This action is proceeding on plaintiff's first amended complaint, filed May 4, 2012 (FAC) (ECF No. 36). Plaintiff claims that defendants violated his rights under the Eighth Amendment by acting with deliberate indifference to his serious medical needs. Several matters are pending before the court. On March 28, 2013, plaintiff filed a motion styled "M
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ORDER

ALLISON CLAIRE, Magistrate Judge.

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on plaintiff's first amended complaint, filed May 4, 2012 (FAC) (ECF No. 36). Plaintiff claims that defendants violated his rights under the Eighth Amendment by acting with deliberate indifference to his serious medical needs. Several matters are pending before the court.

On March 28, 2013, plaintiff filed a motion styled "Motion for an Order Compelling Discovery of Non-Parties." (ECF No. 65.) By the motion, plaintiff seeks an order compelling non-parties to this action to produce documents and respond to interrogatories. Defendants oppose the motion on the ground that plaintiff did not serve a Rule 45 subpoena for the requested discovery on any individual prior to filing the motion. There is no evidence that plaintiff has served on any non-party a Rule 45 subpoena accompanied by a proper discovery request. Rule 45 of the Federal Rules of Civil Procedure sets forth the procedures for service and enforcement of such subpoenas as well as procedures for responding to the discovery requested thereby and seeking to compel responses if objections are tendered. Absent service of a Rule 45 subpoena for the discovery plaintiff seeks, his motion is not properly before the court. It will therefore be denied.

On March 28, 2013, plaintiff filed a motion to compel responses to discovery requests served on defendants on February 26, 2013 (ECF No. 66). Defendants oppose the motion. Defendants represent that they did not respond to the discovery requests at issue because they were served after the February 4, 2013 deadline for service of discovery requests in this action and because the requests were not directed to individual defendants. Defendants acknowledge that they represented in an opposition to a motion for injunctive relief that they filed on February 26, 2013 that they would not be opposed to a request for extension of time to complete discovery, but that plaintiff never made that request.

After review of the record, the court finds that pursuant to the December 12, 2012 revised scheduling order (ECF No. 53), all discovery requests in this action were to be served not later than sixty days prior to April 5, 2013. Order filed December 12, 2012 (ECF No. 53) at 6. Plaintiff served the discovery requests at issue on or about February 26, 2013, after expiration of that deadline. Plaintiff did not seek an extension of time to serve discovery requests in this action. Moreover, defendants have now moved for summary judgment and plaintiff has filed his opposition on the merits without reference to Fed. R. Civ. P. 56(d). For these reasons, plaintiff's motion to compel will be denied.

On July 19, 2013, plaintiff filed a motion for a thirty day extension of time to file an opposition to defendants' June 28, 2013 motion for summary judgment. Defendants have filed a statement of non-opposition to the motion. Plaintiff filed his opposition on August 27, 2013. Good cause appearing, plaintiff's motion for extension of time will be granted and plaintiff's opposition deemed timely filed.

On August 29, 2013, defendants filed a motion for extension of time to file their reply brief. Good cause appearing, the motion will be granted.

Finally, on August 30, 2013, plaintiff filed a motion styled "Motion Requesting that the Plata Receiver Investigate Custody Prison Officials Taking Control Over Subordinate Medical Staff in Order to Interfere with Prescribed Health Care." The Plata Receiver is not subject to orders of this court. Plaintiff's motion will be denied.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Plaintiff's March 28, 2013 motion to compel discovery (ECF No. 65) is denied;

2. Plaintiff's March 28, 2013 motion to compel discovery responses (ECF No. 66) is denied;

3. Plaintiff's July 19, 2013 motion for extension of time (ECF No. 82) is granted;

4. Plaintiff's August 27, 2013 opposition to defendants' June 28, 2013 motion for summary judgment (ECF No. 85) is deemed timely filed;

5. Defendants' August 29, 2013 motion for extension of time (ECF No. 86) is granted;

6. Defendants shall file their reply on or before September 17, 2013; and

7. Plaintiff's August 30, 2013 motion (ECF No. 87) is denied.

Source:  Leagle

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