Aurelio M. Sepulveda v. Woodford et al
Filing
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ORDER Denying Plaintiff's Motion for Extension of Time to Serve Discovery as Moot 55 ; ORDER Granting Plaintiff's Motion to Compel in Part 57 , signed by Magistrate Judge Dennis L. Beck on 11/2/11. (Verduzco, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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AURELIO MARTIN SEPULVEDA,
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Plaintiff,
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CASE NO. 1:05-CV-01143-AWI-DLB PC
ORDER DENYING PLAINTIFF’S MOTION
FOR EXTENSION OF TIME TO SERVE
DISCOVERY AS MOOT (DOC. 55)
v.
JEANNE WOODFORD, et al.,
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ORDER GRANTING PLAINTIFF’S MOTION
TO COMPEL IN PART (DOC. 57)
Defendants.
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RESPONSE DUE WITHIN THIRTY DAYS
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Plaintiff Aurelio M. Sepulveda (“Plaintiff”) is a prisoner in the custody of the California
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Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in
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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding
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on Plaintiff’s second amended complaint against Defendant Shu-Pin Wu (“Defendant”) for
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deliberate indifference to a serious medical need in violation of the Eighth Amendment and
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retaliation in violation of the First Amendment.
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Pending before the Court is: 1) Plaintiff’s motion for extension of time to serve
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Defendant with discovery, filed July 5, 2011; and 2) Plaintiff’s motion to compel, filed July 22,
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2011. Docs. 55, 57. Defendant filed an opposition on August 8, 2011. Doc. 58. Plaintiff filed a
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reply on August 29, 2011. Doc. 59. The matter is submitted pursuant to Local Rule 230(l).
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I.
Motion For Extension Of Time
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On July 5, 2011, Plaintiff filed a motion for extension of time to serve Defendant with
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discovery requests. Plaintiff moved for an extension to the discovery cut-off date. Plaintiff’s
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motion is moot. The Court previously granted Plaintiff’s prior motion for modification of the
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discovery cut-off date to September 12, 2011. Accordingly, Plaintiff’s motion for extension of
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time, filed July 5, 2011, is denied as moot.
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II.
Motion To Compel
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Plaintiff moves to compel the production of the following documents: 1) Plaintiff’s
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medical records from the relevant time periods from consultations outside of prison, 2) any
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administrative appeals or complaint filed against Defendant Wu; 3) a March 22, 2004
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memorandum authored by chief psychiatrist J. Pitts regarding the prescription of neurontin. Pl.’s
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Mot. Compel 6-9.
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A.
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Plaintiff requests documents from UCSF Medical Center, San Joaquin Community
Request No. 1
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Hospital, and the Riverside County Regional Medical Center. Id. at 6. Defendant has
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subpoenaed these documents, and concedes possession.1 Def.’s Opp’n 2. Defendant does not
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dispute the relevance of these documents. However, Defendant argues that Plaintiff should be
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required to pay for copies. Id. Additionally, Defendant contends that Plaintiff moves to compel
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discovery requests before the time allotted to respond had expired, rendering Plaintiff’s motion to
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compel premature. Id. at 3. Plaintiff contends that he is entitled to these documents because they
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are relevant and he cannot afford to pay for copies. Pl.’s Reply, Doc. 59.
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Plaintiff contends that he served his discovery requests on June 28, 2011. Pl.’s Mot.
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Compel 4. Pursuant to the Court’s Discovery and Scheduling Order, the party responding to
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discovery requests is granted forty-five days in which to serve its response. Order, Doc. 42.
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Thus, for discovery requests served on June 28, 2011, the responding party would have up to
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August 12, 2011 to serve a response. Plaintiff’s motion to compel, filed July 22, 2011, is
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premature.
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The Court will nonetheless consider Plaintiff’s motion. On October 14, 2011, Plaintiff
filed a motion for extension of time to file an opposition to Defendant’s motion for summary
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Defendant initially denied possession of Plaintiff’s relevant medical records from San
Joaquin Community Hospital and Riverside County Regional Medical Center. Def.’s Opp’n 3,
Doc. 58. In a subsequent declaration, Defendant’s counsel now admits to possession of these
records via subpoena. Beene Decl., Doc. 60.
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judgment. Pl.’s Mot., Doc. 63. In that motion, Plaintiff contends that he requires this discovery
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in order to properly prepare his opposition. Mot. 2. Summary judgment is disfavored where, as
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here, relevant evidence remains to be discovered. Jones v. Blanas, 393 F.3d 918, 930 (9th Cir.
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2004). The Court will consider the merits of Plaintiff’s motion.
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The remaining dispute is whether Plaintiff is required to pay for copies of Defendant’s
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documents subpoenaed from the three outside centers. Requiring the requesting party to pay for
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costs of copying has been upheld by many courts. See, e.g., Mezu v. Morgan State Univ., 269
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F.R.D. 565, 575 (D. Md. 2010); Clever View Investments, Ltd. v. Oshatz, 233 F.R.D. 393, 394
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(S.D.N.Y. 2006); Monarch Ins. Co. v. Spach, 281 F.2d 401, 413 n.30 (5th Cir. 1960);. Nothing
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in the Federal Rules of Civil Procedure prevent Defendant from charging Plaintiff for copies.
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However, pursuant to Rule 34 of the Federal Rules of Civil Procedure, the requesting
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party may request that the responding party “produce and permit the requesting party . . . to
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inspect, copy, test, or sample” relevant documents. Fed. R. Civ. P. 34(a)(1). Though Plaintiff
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may be charged for copies, he must be permitted to inspect relevant documents in the possession
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of Defendant. Accordingly, Defendant will be required to produce for Plaintiff’s inspection the
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relevant medical records obtained by Defendant’s subpoena from UCSF Medical Center, San
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Joaquin Community Hospital, and the Riverside County Regional Medical Center. The Court
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will not direct Defendant on the method by which they will comply with the Court’s order.
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However, it has been the Court’s experience that coordination with the litigation coordinator at
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the prison where Plaintiff is currently incarcerated may facilitate the process.
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B.
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Plaintiff requests inmate grievances and complaints filed against Defendant Wu. Plaintiff
Requests Nos. 2 and 3
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contends that such documents will demonstrate a history of unethical behavior towards inmates,
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and an abuse of his position as a physician. Pl.’s Mot. Compel 8-9. Plaintiff is in effect seeking
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character evidence to prove conduct. Fed. R. Evid. 404. Such character evidence is
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inadmissible. Id. Plaintiff provides no explanation as to how such documents will be reasonably
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calculated to lead to the discovery of admissible evidence. See Fed. R. Civ. P. 26(b).
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Accordingly, Plaintiff’s motion to compel the production of these inmate grievances is denied.
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Plaintiff requests the production of a March 22, 2004 memorandum from chief
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psychiatrist J. Pitts. Plaintiff contends that the memorandum indicated that the drug neurontin
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could not be used for psychiatric purposes, and if used for pain, required referral to the medical
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department for on-going prescription. Pl.’s Mot. Compel 9. Plaintiff contends that the
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memorandum would demonstrate that Defendant Wu had no “foundation” to deny the
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prescription for this drug, and would rebut Defendant’s argument that he had a justified reason to
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deny such treatment. Id. Defendant does not address this argument. The Court finds that the
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memorandum is reasonably calculated to lead to the discovery of admissible evidence. Fed. R.
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Civ. P. 26(b). The denial of a drug prescription to treat Plaintiff’s alleged pain is relevant to the
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claims alleged in this action, and the memorandum is thus relevant under Rule 26. Accordingly,
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Plaintiff’s motion to compel the production of these inmate grievances is granted.
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Based on the foregoing, it is HEREBY ORDERED that
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1.
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Plaintiff’s motion to compel, filed July 22, 2011, is GRANTED in part as stated
herein;
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Defendant is required to produce for Plaintiff’s inspection the relevant medical
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records subpoenaed from UCSF Medical Center, San Joaquin Community
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Hospital, and the Riverside County Regional Medical Center within thirty (30)
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days from the date of service of this order;
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3.
Defendant is required to produce for Plaintiff’s inspection the March 22, 2004
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memorandum from chief psychiatrist J. Pitts within thirty (30) days from the date
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of service of this order; and
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4.
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Plaintiff’s motion to compel the production of inmate grievances and complaints
against Defendant Wu is denied.
IT IS SO ORDERED.
Dated:
3b142a
November 2, 2011
/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE
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