Pulliam v. Lozano et al

Filing 75

ORDER DENYING Miscellaneous Motions re 70 & 72 , signed by Magistrate Judge Michael J. Seng on 1/27/2012. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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JOSEPH R. PULLIAM,
Plaintiff,

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CASE NO. 1:07-cv-00964-LJO-MJS PC
ORDER DENYING MISCELLANEOUS
MOTIONS

v.
(ECF Nos. 70 & 72)

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M. LOZANO, et al.
Defendant.
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Plaintiff Joseph R. Pulliam (“Plaintiff”) is a state prisoner proceeding pro se and in
forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

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This action is proceeding on Plaintiff’s First Amended Complaint, filed December

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February 2, 2009, against Defendants Lozano and Mason (jointly, “Defendants”) for

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violation of Plaintiff’s rights under the Eighth Amendment. (ECF No. 23.)

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On March 31, 2011, Plaintiff filed a motion for a subpoena duces tecum to be issued

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to the Warden of Kern Valley State Prison. (ECF No. 55.) On September 14, 2011, the

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Court granted Plaintiff’s motion in part, and ordered service of Plaintiff’s subpoena duces

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tecum. (ECF No. 68 & 71.) Plaintiff has since filed a motion for reconsideration of the

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Court’s order on Plaintiff’s motion for a subpoena duces tecum, to extend the discovery

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deadline, and to alter the limit of interrogatories. (ECF No. 70.) Defendants have not filed

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an opposition to this motion.

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Plaintiff also filed a notice regarding the Warden of Kern Valley State Prison’s failure

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to comply with the subpoena duces tecum issued to him. (ECF No. 72.) Defendants have
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filed a response to this notice. (ECF No. 73.)
These motions and notice are now before the Court.

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I.

MOTION FOR RECONSIDERATION

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Plaintiff asks that the Court reconsider its decision on Plaintiff’s motion for a

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subpoena duces tecum. (Mot., ECF No. 70 at 3-4.) Plaintiff believes that the Court was

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wrong to deny five of the document requests in his motion for a subpoena duces tecum.

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(Mot. at 4.) The denied requests relate to Defendants’ personnel records. (ECF No. 55

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at 5-6.) In its order on Plaintiff’s motion for a subpoena duces tecum, the Court found that

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these requests were not likely to lead to the discovery of relevant evidence. (ECF No. 68

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at 2.)

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Fed. R. Civ. P. 60(b)(6) allows the Court to relieve a party from an order for any

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reason that justifies relief. Fed. R. Civ. P. 60(b)(6) “is to be used sparingly as an equitable

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remedy to prevent manifest injustice and is to be utilized only where extraordinary

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circumstances . . .” exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal

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quotations marks and citation omitted). The moving party “must demonstrate both injury

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and circumstances beyond his control . . . .” Id. (internal quotation marks and citation

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omitted). In seeking reconsideration of an order, Local Rule 230(k) requires Plaintiff to

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show “what new or different facts or circumstances are claimed to exist which did not exist

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or were not shown upon such prior motion, or what other grounds exist for the motion.”

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“A motion for reconsideration should not be granted, absent highly unusual

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circumstances, unless the . . . court is presented with newly discovered evidence,

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committed clear error, or if there is an intervening change in the controlling law,” Marlyn

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Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009)

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(internal quotations marks and citations omitted), and “[a] party seeking reconsideration

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must show more than a disagreement with the Court’s decision, and recapitulation . . . ” of

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that which was already considered by the Court in rendering its decision.

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Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001).

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U.S. v.

Plaintiff has provided no basis for reconsideration, and has not shown clear error
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or other meritorious grounds for relief, and has therefore not met his burden as the party

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moving for reconsideration. Marlyn Nutraceuticals, Inc., 571 F.3d at 880.
Plaintiff’s motion for reconsideration (ECF No. 70) is DENIED, with prejudice.

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II.

Plaintiff asks that the discovery deadline be extended due to the “insufficient

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MOTION TO EXTEND THE DISCOVERY DEADLINE

discovery responses Defendants have provided Plaintiff thus far.” (Mot. at 6.)

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Pursuant to Fed. R. Civ. P. 16(b)(4), the Court can modify a discovery schedule

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“only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). Here, Plaintiff

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has failed to show good cause since his only reason for asking for the extension is to

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request additional information; a request that the Court has previously denied. (ECF No.

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68 at 2.) Despite Plaintiff’s concerns about the sufficiency of the information Defendants

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provided, it appears Defendants have responded to the best of their abilities. Plaintiff’s

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motion states that a significant amount of the requested information was produced in

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connection with Defendants’ motion for summary judgment, but he still requests additional

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information which the Court previously deemed not relevant. (Mot. at 4, 6; ECF No. 68 at

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2.) The Court finds no basis for extending the discovery deadline.
Plaintiff’s motion to extend the discovery deadline (ECF No. 70) is DENIED.

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III.

MOTION TO ALTER THE LIMIT OF INTERROGATORIES

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Plaintiff also asks the Court for leave to serve additional interrogatories pursuant to

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Fed. R. Civ. P. 33. (Mot. at 6-7.) Plaintiff asks for this information because Defendants

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have not provided the information that Plaintiff needs. (Id. at 6.) As stated above, it

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appears that Plaintiff has been provided with the available information. There is no basis

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for the Court to alter the number of interrogatories to which Plaintiff is entitied.
Accordingly, Plaintiff’s motion to alter the limit of interrogatories (ECF No. 70) is

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DENIED.

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IV.

NOTICE OF FAILURE TO COMPLY WITH COURT’S ORDER

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Plaintiff has also filed a notice with the Court, to inform it that the Warden of Kern

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Valley State Prison has failed to provide Plaintiff with a copy of Plaintiff’s video report of
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the incident underlying Plaintiff’s action. (Request, ECF No. 72 at 2.) Defendants have

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filed a response and informed the Court that they showed Plaintiff the video but were not

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able to let him maintain possession of it because the requested information is stored on

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a DVD or CD. (Response, ECF No. 73 at 2.) Prisoners are not allowed to keep CDs or

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DVDs. See Department Operations Manual Supplement regarding inmate property,

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section 54030.17.5. (Id.) Since allowing Plaintiff to maintain this information in his

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possession would be against prison policy and because it appears that the Warden of Kern

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Valley State Prison has made every effort to provide Plaintiff with this information without

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violating prison rules, Plaintiff’s request is DENIED.

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IT IS SO ORDERED.

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Dated:
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January 27, 2012

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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