KENDALL J. NEWMAN, Magistrate Judge.
Plaintiff is a state prisoner, proceeding without counsel. Under the mailbox rule,
Pursuant to prior court orders (ECF Nos. 19, 52), this action proceeds against defendants Nangalama, Bakewell, Sarver, Baider, Lopez, and Colter, on plaintiff's claims that defendants were deliberately indifferent to his serious medical needs, and allegedly retaliated against plaintiff in violation of his First Amendment rights. As previously noted, pursuant to the discovery and scheduling order, the discovery deadline, including the deadline for filing motions to compel discovery responses, was December 29, 2014. (ECF No. 56.) Discovery requests were to be propounded by October 30, 2014, and motions to compel discovery were due no later than December 29, 2014. (
In his recent motion, plaintiff sets forth the history of his discovery efforts and defendants' responses. However, in his conclusion, plaintiff seeks an order allowing plaintiff to propound the following discovery requests:
(ECF No. 72 at 10.)
First, it appears from the third amended complaint that the events of February 28, 2011, pertain to plaintiff's claims concerning his request for treatment for his testicular pain. (ECF No. 17 at 15.) Because plaintiff's allegations pertain to events occurring in the medical unit, it is unclear whether a video of the incident on February 28, 2011 exists. If such video does exist, it is relevant and defendants should provide plaintiff with an opportunity to view such video inasmuch as plaintiff does not have the equipment necessary to view a video in his cell. Plaintiff's first request is partially granted.
Second, as to the remainder of plaintiff's first request seeking policies, procedures, etc., his request is extremely overbroad. Plaintiff has failed to demonstrate such requests would adduce evidence pertinent to the First and Eighth Amendment claims remaining herein. The second part of plaintiff's first request is denied.
Third, plaintiff seeks to serve an additional set of requests for admissions. It appears that plaintiff previously propounded twenty-seven sets of requests for admissions, many of which were propounded after the time constraints set forth in this court's scheduling order. (ECF No. 72 at 4.) Such volume of requests is excessive and burdensome. Plaintiff's second request is denied.
Fourth, plaintiff's request for appointment of counsel is denied for the reasons set forth in this court's March 13, 2015 order.
Fifth, within the text of his motion, plaintiff claims he has not received a response to his request for production of documents propounded to defendants on September 18, 2014, and that he has not received answers to interrogatories propounded to defendants on October 1, 2014, with the exception of answers from defendant Bakewell. (ECF No. 72 at 8.) In addition, plaintiff states that he has not received a response to his third request for production of documents. (
Because the parties appear to be at odds as to whether such responses were provided, defendants shall respond to plaintiff's contentions concerning responses to the requests for production of documents and answers to interrogatories. Plaintiff may file a reply.
Finally, on March 20, 2015, defendants filed a motion for summary judgment on the merits of plaintiff's remaining claims. In addition to the discovery already provided by defendants, it appears plaintiff had a number of documents supporting his claims inasmuch as he appended them to his third amended complaint. (ECF Nos. 17 at 46-100; 17-1 at 1-105; 17-2 at 1-66; 17-3 at 1-40; 17-4 at 1-4; & 17-5 at 1-57.) However, given the remaining discovery dispute, it is unclear whether plaintiff requires additional discovery to oppose defendants' motion. Fed. R. Civ. P. 56(d).
Rule 56(d) provides as follows:
Fed. R. Civ. P. 56(d). Plaintiff bears the burden of specifically identifying relevant information, where there is some basis for believing that the information actually exists, and demonstrating that the evidence sought actually exists and that it would prevent summary judgment.
Because it appears that some discovery responses may be outstanding pursuant to an agreement between the parties, plaintiff is granted an opportunity to file a request under Rule 56(d). Plaintiff is cautioned, however, that he must demonstrate his need for specific facts to be obtained in discovery that would preclude summary judgment.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's March 12, 2015 motion (ECF No. 72) is partially granted:
a. Within fourteen days from the date of this order, defendants shall confirm whether a video of the incident on February 28, 2011 exists, and if such video does exist, what arrangements defendants have made for plaintiff to view the video.
b. Within fourteen days from the date of this order, defendants shall respond to plaintiff's contentions concerning responses to the requests for production of documents and answers to interrogatories; seven days thereafter, plaintiff may file a reply.
c. In all other respects, plaintiff's motion (ECF No. 72) is denied.
2. Within twenty-one days from the date of this order, plaintiff may file a Rule 56(d) request. Defendants' response shall be filed seven days thereafter. If plaintiff chooses not to file such a request, he shall file his opposition to defendants' motion for summary judgment within twenty-one days from the date of this order.