Ordaz v. Tate et al

Filing 95

ORDER adopting in full 62 FINDINGS AND RECOMMENDATIONS; denying 49 Motion to Dismiss and denying 66 Motion for Temporary Injunction Prohibiting Harassment signed by Chief Judge B. Lynn Winmill on 8/10/2010. (Lundstrom, T)

IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF CALIFORNIA F R E S N O DIVISION

R A F A E L S. ORDAZ, C a s e No. 1:07-CV-00634-BLW-MHW Plaintiff, v. H A R O L D TATE, et al., Defendants. O R D E R ADOPTING REPORT A N D RECOMMENDATION

B e c a u s e it was unclear whether Plaintiff was still pursuing this case and his mail w a s being returned to the Court as undeliverable, the Court ordered Plaintiff to file a c h a n g e of address and a response to the Summary Judgment Motions in order to avoid d is m is s a l of this action for failure to prosecute. Plaintiff has since filed a Notice of C h a n g e of Address and an Objection. (Dkt. 89 & 90.) T h e Court has before it a Report and Recommendation filed by the United States M a g is tra te Judge. (Dkt. 62.) The Magistrate Judge recommends that Defendants' Motion to Dismiss (Dkt. 49) be denied. (Id.) Plaintiff and Defendants have filed timely O b je c tio n s to the Report and Recommendation (Dkt. 63, 64 & 65), and the Court now re v ie w s the Objections in accordance with 28 U.S.C. § 636(b)(1)(C). D e f e n d a n ts argue that the Magistrate Judge is in error in determining that Plaintiff

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has, for the most part, complied with Defendants' discovery requests. They place great e m p h a s is on the fact that Plaintiff failed to respond while he was not incarcerated, and th a t he had still not responded at the time of their objection. On the other hand, Plaintiff a rg u e s that his entire central file is in the possession of Defendants' counsel. While Defendants' frustration is understandable, the Court agrees with the M a g is tra te Judge that dismissal of Plaintiff's case as a sanction is not warranted, given th a t Plaintiff is a pro se litigant and Defendants appear to have obtained Plaintiff's m e d ic a l records and other items sufficient to support the filing of a motion for summary ju d g m e n t. A n y prejudice that might occur to Defendants as a result of Plaintiff's failure to p ro d u c e additional evidence can be alleviated by following the Magistrate Judge's s u g g e s tio n that undisclosed evidence not be admitted at trial. Plaintiff earlier asserted that h e had some medical documents in his possession that were not in his central file. P la in tif f is warned that, should this case proceed to trial, he will not be permitted to rely o n those medical documents or any other evidence not provided to Defendants' counsel p rio r to the discovery deadline in this case. Plaintiff objects to the Magistrate Judge's denial of the request for appointment of c o u n s e l. This Court agrees that counsel is not warranted presently. Here, Plaintiff has a d e q u a te ly represented himself to date. If, after reviewing the merits of Plaintiff's claims in conjunction with the Motion for Summary Judgment, the Magistrate Judge determines

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that appointment of counsel would be appropriate, counsel will be appointed at that time. P la in tif f is encouraged to seek his own counsel on a contingency or contract basis. Plaintiff has also filed a Motion for Temporary Injunction Prohibiting Harassment. (D k t. 66.) Plaintiff complains that defense counsel is harassing him with letters and re q u e s ts in this matter. Based on the parties' filings, the Court concludes that the Motion is without an adequate factual basis and is subject to denial. Plaintiff and counsel are re m in d e d to be professional and courteous to one another at all times, whether in person o r in writing. ORDER I T IS ORDERED: 1. 2. 3. T h e Report and Recommendation (Docket No. 62) is ADOPTED in full. D e f e n d a n ts' Motion to Dismiss (Docket No. 49) is DENIED. Plaintiff's Motion for Temporary Injunction Prohibiting Harassment (Dkt. 6 6 ) is DENIED. 4. N o th in g further shall be filed in this case until the Magistrate Judge enters a re p o rt and recommendation regarding the pending motions for summary ju d g m e n t.

DATED: August 10, 2010

Honorable B. Lynn Winmill Chief U. S. District Judge
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