Johnson v. Cate et al

Filing 81

ORDER (1) DENYING Plaintiff's 52 56 Motion for Appointment of Expert Witness; (2) DENYING Plaintiff's 55 Motion to Compel Answers to Interrogatories; (3) DENYING Plaintiff's 55 Request for Fees and Costs or Sanctions; (4) DE NYING Plaintiff's 56 Motion for Appointment of Counsel; (5) DISREGARDING Plaintiff's 56 Application to Proceed In Forma Pauperis; (6) GRANTING Plaintiff's 57 Request to Modify the Court's Discovery and Scheduling Order; ( 7) GRANTING Plaintiff's 64 Motion for Extension of Time to File Motion to Compel; (8) DENYING 65 Motion for Physical Examination; (9) GRANTING Plaintiff's 79 Motion for Extension of Time to File Opposition to Defendant's Motion for Summary Judgment; and (10) GRANTING Plaintiff's 80 Request for Notification signed by Magistrate Judge Michael J. Seng on 12/8/2014. (Sant Agata, S)

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT

10

EASTERN DISTRICT OF CALIFORNIA

11
12

GARRISON S. JOHNSON,

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Plaintiff,
v.
MATHEW CATE, et al.,
Defendants.

CASE NO. 1:10-cv-0803-AWI-MJS (PC)
ORDER:
(1) DENYING PLAINTIFF’S MOTION FOR
APPOINTMENT OF EXPERT WITNESS
(ECF Nos. 52 & 56);
(2) DENYING PLAINTIFF’S MOTION TO
COMPEL ANSWERS TO
INTERROGATORIES (ECF No. 55);
(3) DENYING PLAINTIFF’S REQUEST
FOR FEES AND COSTS OR SANCTIONS
(ECF No. 55);
(4) DENYING PLAINTIFF’S MOTION FOR
APPOINTMENT OF COUNSEL (ECF No.
56);
(5) DISREGARDING PLAINTIFF’S
APPLICATION TO PROCEED IN FORMA
PAUPERIS (ECF No. 56);
(6) GRANTING PLAINTIFF’S REQUEST
TO MODIFY THE COURT’S DISCOVERY
AND SCHEDULING ORDER (ECF No.
57);

1

(7) GRANTING PLAINTIFF’S MOTION
FOR EXTENSION OF TIME TO FILE
MOTION TO COMPEL (ECF No. 64);

2
3

(8) DENYING MOTION FOR PHYSICAL
EXAMINATION (ECF No. 65);

4

(9) GRANTING PLAINTIFF’S MOTION
FOR EXTENSION OF TIME TO FILE
OPPOSITION TO DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
(ECF No. 79); AND

5
6
7
8

(10) GRANTING PLAINTIFF’S REQUEST
FOR NOTIFICATION (ECF No. 80)

9
10

I.

11
12
13
14
15
16
17

Plaintiff is a state prisoner proceeding pro se in this civil rights action brought
pursuant to 42 U.S.C. § 1983. (ECF No. 1.) This action proceeds against Defendant
Harrington on Plaintiff’s Eighth Amendment claim for cruel and unusual punishment and
his California state law negligence claim. (ECF Nos. 20 & 23.) Specifically, Plaintiff
claims that Defendant was deliberately indifferent to a serious risk of harm to Plaintiff
from arsenic contaminated water at Kern Valley State Prison (“KVSP”) where Plaintiff
was housed. (ECF No. 19.)

18
19
20
21
22
23
24
25
26
27

PROCEDURAL HISTORY

Defendant has filed a motion for summary judgment. (ECF No. 66.) However,
Plaintiff has filed numerous non-dispositive motions that must be addressed prior to
reaching Defendant’s motion. Each of Plaintiff’s motions is addressed below.
II.

MOTION FOR APPOINTMENT OF INDEPENDENT EXPERT
Plaintiff filed a motion for the appointment of an expert witness (ECF No. 52), and

then an amended motion seeking the same relief. (ECF No. 56). Defendant did not
oppose the motions, and the time for doing so has passed.
Plaintiff seeks an expert witness to testify regarding the effects of consuming
water that contains arsenic in excess of federal standards. (ECF No. 52.) He has
received from Defendant reports from two experts. One expert indicated that he would

28
2

1

not expect to see health effects associated with drinking the water at KVSP. The other

2

indicated that, although consumption of arsenic at these levels could have biochemical

3

effects after years of exposure, “medical studies don’t show much if any disease at these

4

levels.” Plaintiff contends that these reports are conflicting and do not address whether

5

arsenic could cause the types of medical problems he is experiencing.

6

In his amended motion (ECF No. 56), Plaintiff details additional, more recent

7

medical conditions he believes are associated with his consumption of arsenic. He notes

8

that, in order to establish that this condition is linked to arsenic, he requires an expert

9

witness.

10

A.

Legal Standard

11

An expert witness may testify to help the trier of fact understand the evidence or

12

determine a fact at issue. Fed. R. Evid. 702. Under Rule 706(a) of the Federal Rules of

13

Evidence, the district court has discretion to appoint a neutral expert on its own motion or

14

on the motion of a party. Fed. R. Evid. 706(a); Walker v. Am. Home Shield Long Term

15

Disability Plan, 180 F.3d 1065, 1071 (9th Cir.1999). Rule 706 does not contemplate

16

court appointment and compensation of an expert witness as an advocate for Plaintiff.

17

See Gamez v. Gonzalez, No. 08cv1113 MJL (PCL), 2010 WL 2228427, at *1 (E.D. Cal.

18

June 3, 2010) (citation omitted)

19

B.

20

Plaintiff seeks appointment of an independent expert to assist the Court or jury in

21

Analysis

understanding whether his medical complaints are linked to his consumption of arsenic.

22

Plaintiff does not proceed in forma pauperis in this action. Nothing before the

23

Court suggests he cannot pay the cost of hiring an expert. An expert will not be

24

appointed where the matter can be addressed by party experts. Mallard Bay Drilling,

25

Inc., v. Bessard, 145 F.R.D. 405, 406 (D.C. La. 1993) (no appointment of independent

26

expert where the parties’ experts are qualified and capable of presenting sufficient

27

information).

28
3

1

Additionally, the appointment of an independent expert is to assist the trier of fact,

2

not a particular litigant. See Joe S.Cecil & Thomas E. Willging, Court-Appointed Experts,

3

at 538 (Fed. Jud. Center 1994) (Rule 706 is meant to promote accurate fact finding

4

where issues are complex, esoteric and beyond the ability of the fact finder to

5

understand without expert assistance). Here, Plaintiff requests an independent expert to

6

establish a necessary element of his case. Rule 706 does not exist to assist a party.

7

Appointment of an independent expert under Rule 706 should be reserved for

8

exceptional cases in which the ordinary adversary process does not suffice. In re Joint E.

9

& S. Dists. Asbestos Litig., 830 F.Supp. 686, 693 (E.D.N.Y. 1993) (allowing appointment

10

of independent expert in mass tort case). This case is not such an exceptional case.
Accordingly, for the reasons stated, Plaintiff’s motion for the appointment of an

11
12

independent expert will be denied without prejudice.

13

III.

MOTION TO COMPEL ANSWERS TO INTERROGATORIES

14

Plaintiff seeks to compel responses to Interrogatory Nos. 2, and 4-11 of his first

15

set of interrogatories. (ECF No. 55.) Plaintiff’s motion includes a request for $800 in fees

16

and costs associated with preparing the motion or $800 in sanctions. Defendant filed an

17

opposition. (ECF No. 58.) Plaintiff did not file a reply and the time for doing so has

18

passed.

19

A.

Legal Standard

20

The discovery process is subject to the overriding limitation of good faith. Asea,

21

Inc. v. S. Pac. Transp. Co., 669 F.2d 1242, 1246 (9th Cir. 1981). Parties may obtain

22

discovery regarding any nonprivileged matter that is relevant to any party’s claim or

23

defense, and for good cause, the Court may order discovery of any matter relevant to

24

the subject matter involved in the action. Fed. R. Civ. P. 26(b)(1). Relevant information

25

need not be admissible at the trial if the discovery appears reasonably calculated to lead

26

to the discovery of admissible evidence. Id.

27

A party may propound interrogatories relating to any matter that may be inquired

28

into under Federal Rule of Civil Procedure 26(b). Fed. R. Civ. P. 33(a)(1). The
4

1

responding party is obligated to respond to the interrogatories to the fullest extent

2

possible. See Fed. R. Civ. P. 33(b)(3). Any objections must be stated with specificity.

3

Fed. R. Civ. P. 33(b)(4); see Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354,

4

356 (D. Md. 2008) (boilerplate objections waived any legitimate objections responding

5

party may have had); Chubb Integrated Sys., Ltd. v. Nat’l Bank of Wash., 103 F.R.D. 52,

6

58 (D.D.C. 1984) (the objecting party must state reasons for any objection, “irrelevant”

7

did not fulfill party’s burden to explain its objections); Pulsecard, Inc. v. Discovery Card

8

Servs., Inc., 168 F.R.D. 295, 310 (D. Kan. 1996) (objection on grounds of vagueness

9

and ambiguity overruled if terms and phrases used in interrogatories are susceptible to

10

ordinary definitions). The responding party shall use common sense and reason in its

11

responses; hyper-technical, quibbling, or evasive objections will not be viewed favorably

12

by the court. Haney v. Saldana, No. 1:04-cv-05935-AWI-SmS-PC, 2010 WL 3341939, at

13

*3 (E.D. Cal. Aug. 24, 2010).

14

Generally, if the responding party objects to a discovery request, the party moving

15

to compel bears the burden of demonstrating why the objections are not justified. E.g.,

16

Grabek v. Dickinson, No. CIV S-10-2892 GGH P., 2012 WL 113799, at *1 (E.D. Cal. Jan.

17

13, 2012); Ellis v. Cambra, No. 1:02-cv-05646-AWI-SMS (PC), 2008 WL 860523, at *4

18

(E.D. Cal. Mar. 27, 2008). This requires the moving party to inform the Court which

19

discovery requests are the subject of the motion to compel, and, for each disputed

20

response, why the information sought is relevant and why the responding party's

21

objections are not meritorious. Grabek, 2012 WL 113799, at *1; Womack v. Virga, No.

22

CIV S-11-1030 MCE EFB P., 2011 WL 6703958, at *3 (E.D. Cal. Dec. 21, 2011).

23

The court must limit discovery if the burden of the proposed discovery outweighs

24

its likely benefit. Fed. R. Civ. P. 26(b)(2)(C)(iii). “In each instance, the determination

25

whether . . . information is discoverable because it is relevant to the claims or defenses

26

depends on the circumstances of the pending action.” Fed. R. Civ. P. 26 Advisory

27

Committee’s note (2000 Amendment) (Gap Report) (Subdivision (b)(1)).

28
5

1

B.

2

A ruling on Interrogatory No. 4 is dispositive of this motion. Accordingly, the Court

3

begins its analysis with Interrogatory No. 4. Having considered the motion and

4

Defendant’s opposition and the relevant discovery request and response, the Court rules

5

as follows.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Analysis

Interrogatory No. 4:
If your answer denies the allegations contained in
Paragraphs 1 through 30 of Plaintiff’s complaint, pertaining to
Plaintiff being subjected to high levels of arsenic drinking
water for a long period of time when confined at KVSP on
April 1, 2010 and July 1, 2010, Defendant Harrington
distributed a notice to the KVSP inmate population entitled
“Important Information About Your Drinking Water; That on
June 21, 2010, a 2009 Consumer Confidenence [sic] Report
of the water system at Kern Valley State Prison was made
available to the inmate population; In 2001, the U.S.
Environmental Protection Agency ordered a reduction in the
maximum level of arsenic in drinking water from 50 parts per
billion to 10 nationwide. Water suppliers had until January 23,
2005, to meet the new standard; In 2010, Plaintiff was
diagnosed to have high levels of enzymes in his liver; In 2010
and 2012, Plaintiff filled out a Health Care Service Request
Form requesting laboratory testing for arsenic exposure due
to breathing causing him to feel sharp pain in his chest,
stomach pain, back nerve damage, and high levels of
enzymes in his liver and he was never tested for arsenic
exposure; That Defendant Harrington was deliberate
indifference to Plaintiff’s serious health and safety needs by
compelling him to consume high levels of arsenic water for
more than 3-years; Defendant Harrington was deliberate
indifference to Plaintiff’s serious health and safety needs by
failing to provide him bottled water as an alternative to
consuming high levels of arsenic water; Defendant Harrington
subjected Plaintiff inhumane living conditions when he
compelled Plaintiff to drink high levels of arsenic water
knowing would be subject to excessive risk of injuries;
Defendant Harrington exposed Plaintiff to involuntary
unreasonable high levels of arsenic water that seriously
threaten his future health is deliberate indifference to
potential effects on Plaintiff’s health; Defendant Harrington
subjected Plaintiff to professional negligence by compelling
him to consume high levels of arsenic water for over 3-years;
Defendant Harrington subjected Plaintiff to professional
6

1
2
3
4
5
6
7
8
9
10
11
12

negligence by failing to provide bottle water and/or noncontaminated water as an alternative to the water at KVSP.
Are you, or any agent or person acting on your behalf, aware
of any fact, observation, documents, or item of evidence that,
either directly or indirectly, supports your denial or otherwise
contradict the allegations of the Plaintiff? If your answer is
anything other than an Unqualified “No” then for each and
every such fact, observation, document, and item of
evidence, please set forth the following information
separately, specifically, and in detail:
A. A detailed description of the fact, observation, document,
or item of evidence, setting forth names, dates, times, places
and any other information that might assist in the
identification and location of the subject information.
B. The name, business address, telephone number, or other
means of identification of each person who has possession or
first hand knowledge of the subject fact, observation,
document, or item of evidence, and that person’s relationship
to the parties herein.

13
14
15
16
17
18

C. The method or manner by which you obtained knowledge
of this information, setting forth names, dates, times, places
and other details that relates to the manner in which you
obtained such knowledge.
D. If the subject information is documentary, will you please,
with out a motion to produce, attach a copy to your answer to
these interrogatories.
Response No. 4:

19
20
21
22
23
24
25
26
27
28

Defendant objects to this interrogatory on the ground it is
compound with improper subparts in that Plaintiff has set
forth 12 separate allegations requiring 7 separate responses
to each of those 12 allegations totaling 84 separate
interrogatories set forth herein. The questions identified in
Interrogatory No. 4, should have been separated so as to
avoid any deliberate attempt or inadvertent presentation of
interrogatories in excess of the 25-limit imposed by Federal
Rule of Civil Procedure 33(a). Defendant objects that this
interrogatory on the ground it is vague, ambiguous and
overbroad in that Plaintiff does not specifically set forth all of
the allegations for which he is seeking a response, instead
Plaintiff refers to Paragraphs 1 through 30 of Plaintiff’s
complaint. Defendant objects to this interrogatory on the
ground that it is vague and ambiguous as to the terms
7

“identification and location of the subject information” and
“identification and location of the subject information.”
Defendant objects to this interrogatory on the grounds it is
overbroad as to subject matter and time and is unduly
burdensome as it is duplicative. Defendant objects to this
request in that it is not full and complete in and of itself.
Defendant objects to the request on the ground that it seeks
content or production of documents, which is an improper
purpose for interrogatories. Defendant objects to this
interrogatory to the extent it seeks information subject to the
attorney-client privilege and/or attorney work product
doctrine. Defendant objects to this interrogatory to the extent
it seeks information protected by laws protecting privacy and
confidentiality, including but not limited to Penal Code section
832.7, the Peace Officer Bill of Rights as set forth in
California Government Code section 3300-3313, the
Information Practices Act as set forth in California Civil Code
section 1798 et seq., and California Evidence Code section
1040.

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

Ruling:
Plaintiff argues that Defendant’s boilerplate objections are insufficient. He also
argues that the subparts of his interrogatory are related and therefore should not count
as separate interrogatories.
Defendant argues that this interrogatory is a contention interrogatory, is overly
broad or burdensome, and exceeds the 25-interrogatory limit of Federal Rule of Civil
Procedure 33. Defendant also contends that he provided the documentary evidence
requested in Interrogatory No. 4(d) in response to Plaintiff’s request for production of
documents.
Plaintiff’s interrogatory seeks information regarding 12 different specific factual
allegations. The allegations range in subject matter from notices distributed to inmates
by Defendant to the content of Plaintiff’s health care service request forms. Each of
these allegations is discrete and will be counted as a separate interrogatory. See Safeco
of Am. v. Rawstron, 181 F.R.D. 441, 446 (“[A]n interrogatory that asks the responding
party to state facts, identify witnesses, or identify documents supporting the denial of
each request for admission contained in a set of requests for admissions usually should

28
8

1

be construed as containing a subpart for each request for admission contained in the

2

set.”)

3

Subparts A-D of Interrogatory No. 4 also involve at least four discrete inquiries:

4

facts, persons, documents, and the “manner and method” by which Defendant came by

5

such information. See id. 442-43, 446 (treating requests for facts, documents, and

6

witness as separate interrogatories); Trevino v. ACB Am., Inc., 232 F.R.D. 612, 614

7

(N.D. Cal. 2006) (interrogatory asking defendant to “[i]dentify each person whom you

8

expect to call as an expert witness at trial, state the subject matter on which the expert is

9

expected to testify and the substance of the facts and opinions to which the expert is

10

expected to testify, and provide a summary of the grounds for each opinion and the

11

expert's qualifications” constitutes three separate interrogatories); Superior Commc’ns v.

12

Earhugger, Inc., 257 F.R.D. 215, 218 (C.D. Cal. 2009) (request for facts, persons, and

13

documents constitutes three distinct interrogatories).

14

Thus, Interrogatory No. 4 contains at least 48 discrete subparts.1 The other

15

contested Interrogatories, Nos. 2 and 5-11, also contain multiple discrete subparts.

16

Plaintiff’s interrogatories far exceed the number permitted under Federal Rule of Civil

17

Procedure 33.

18

Plaintiff is permitted 25 interrogatories and thus, Defendant was required to

19

respond to some of these. However, determining what, precisely, Defendant was

20

required to respond to presents some difficultly. Additionally, the Court is unable to

21

determine which of Defendant’s objections may pertain to which subparts, and thus

22

which objections may be meritorious. Thus, rather than granting Plaintiff’s motion to

23

compel, the Court will afford Plaintiff the opportunity to “prioritize his inquiries and

24
1

25
26
27

The Court recently concluded that a similar interrogatory propounded by Plaintiff in an unrelated case
did not contain discrete subparts or constitute multiple interrogatories. Johnson v. Cate, No. 10-cv-2348,
ECF No. 74 (Aug. 27, 2014). However, that interrogatory was worded more generally, and its scope was
somewhat more limited. Although the Court gave Plaintiff leeway on the number of interrogatories in
that case, it will not do so here, where Plaintiff has propounded numerous compound interrogatories
containing an unmanageable number of discrete subparts.

28
9

1

determine which interrogatories to again submit to defendant.” Superior Commc’ns, 257

2

F.R.D. at 218-19.
Plaintiff’s motion to compel will be denied without prejudice. Plaintiff may resubmit

3
4

23 interrogatories to Defendant within thirty days.2

5

C.

6

Plaintiff seeks $800 in attorney’s fees and costs or sanctions pursuant to Federal

7

Rules of Civil Procedure 33 and 37.

8
9

Request for Fees and Costs or Sanctions

Federal Rule of Civil Procedure 33 does not, standing alone, provide a basis for
sanctions.

10

Federal Rule of Civil Procedure 37(a)(5) provides for the payment of the movant’s

11

reasonable expenses, including attorney’s fees, upon the granting of a motion to compel.

12

It also provides for the payment of the non-movant’s reasonable expenses upon the

13

denial of a motion to compel. Finally, the rule provides for a reasonable apportionment of

14

expenses if the motion is granted in part and denied in part.

15

The Court has denied Plaintiff’s motion to compel, Plaintiff is proceeding pro se,

16

and he has not identified the source of any costs reasonably associated with bringing the

17

motion. Considering the nature of the requests, Defendant’s meritorious objections, and

18

the limited relief granted, the Court will not order the imposition of monetary or other

19

sanctions at this time.
Plaintiff’s motion for fees and costs or sanctions will be denied.

20
21

IV.

22
23

MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff argues that the appointment of counsel is warranted because of the

complex medical and scientific issues involved in his claims. (ECF No. 56)

24

Plaintiff does not have a constitutional right to appointed counsel in this action,

25

Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997). 28 U.S.C. § 1915(e)(1) confers

26

on the district court the power to request that counsel represent a litigant who is

27
28

2

Defendant has already responded to two of Plaintiff’s allowed 25 interrogatories.

10

1

proceeding in forma pauperis. Plaintiff is not proceeding in forma pauperis in this action

2

and has provided no other basis to appoint counsel. Plaintiff cites Weir v. Potte, 214 F.

3

Supp. 2d 53, 55 (D. Mass. 2002), for the proposition that a person not indigent enough

4

to proceed in forma pauperis may nonetheless be appointed counsel. However, Weir

5

involved Title VII, which contains a separate statutory basis for the appointment of

6

counsel. The instant case is not brought pursuant to Title VII.

7

Even if the Court had authority to request counsel pursuant to 28 U.S.C. §

8

1915(e)(1), the court will seek volunteer counsel only in the most serious and

9

exceptional cases. See Rand, 113 F.3d at 1525. In determining whether exceptional

10

circumstances exist, the district court must evaluate both the likelihood of success of the

11

merits and the ability of Plaintiff to articulate his claims pro se in light of the complexity of

12

the legal issues involved. Id. (citations omitted).

13

In the present case, the court does not find the required exceptional

14

circumstances. Even if it is assumed that plaintiff is not well versed in the law and that he

15

has made serious allegations which, if proved, would entitle him to relief, his case is not

16

exceptional. This court is faced with individual cases challenging conditions of

17

confinement almost daily. Further, at this stage in the proceedings, the court cannot

18

make a determination that plaintiff is likely to succeed on the merits, and based on a

19

review of the record in this case, the court does not find that plaintiff cannot adequately

20

articulate his claims. Id.

21

For the foregoing reasons, plaintiff’s motion for the appointment of counsel will be

22

denied without prejudice.

23

V.

APPLICATION TO PROCEED IN FORMA PAUPERIS

24

Along with his amended motion for the appointment of an independent expert and

25

his motion for appointment of counsel, Plaintiff submitted an application to proceed in

26

forma pauperis. (ECF No. 56.)

27
28
11

1

As an initial matter, Plaintiff’s application is deficient. It does not contain a

2

certification or statement of the amount of funds in Plaintiff’s prison trust account, leaving

3

the Court unable to discern whether Plaintiff is able to pay court fees.

4

In any event, Plaintiff has paid the filing fee in this action. Accordingly, his

5

application to proceed in forma pauperis will be denied as moot. See 28 U.S.C.

6

1915(a)(2) (authorizing prisoners seeking to bring a civil action to do so without

7

prepayment of fees in certain circumstances).

8

VI.

REQUEST TO MODIFY DISCOVERY AND SCHEDULING ORDER

9

The Court’s discovery and scheduling order set July 1, 2014 as the discovery cut-

10

off. (ECF No. 40.) On May 27, 2014, Plaintiff filed a motion to extend the discovery cut-

11

off to October 11, 2014. (ECF No. 57.) Plaintiff argued that his aforementioned motion to

12

compel was pending with the Court and, if granted, could result in Plaintiff requiring

13

further discovery.

14

Defendant Harrington filed a statement of non-opposition, acknowledging that

15

discovery matters were still outstanding and that Plaintiff’s proposed extension to

16

October 11, 2014 was reasonable. (ECF No. 63.)

17

Plaintiff has presented good cause for modifying the discovery and scheduling

18

order. However, at this time, an extension of the discovery cut-off to Plaintiff’s proposed

19

date of October 11, 2014 is no longer workable. Accordingly, the Court will extend the

20

discovery cut-off to and including February 20, 2015.

21

VII.

MOTION FOR EXTENSION OF TIME TO FILE MOTION TO COMPEL

22

Defendant sought and received an extension of time to July 23, 2014 to respond

23

to Plaintiff’s first set of requests for admissions (ECF Nos. 60 & 62), making Defendant’s

24

response due after the July 1, 2014 discovery cut-off. (ECF No. 40.) Prior to receiving

25

Defendant’s response, Plaintiff sought an extension of time to file a motion to compel, if

26

necessary. (ECF No. 64.) Plaintiff has, by now, received Defendant’s response, which

27

was due on July 23, 2014..

28
12

1

In light of the Court’s order herein extending the discovery cut-off to February 20,

2

2015, Plaintiff’s deadline for filing a motion to compel also will be extended to February

3

20, 2015. His motion for extension of time (ECF No. 64) will be granted.

4

VIII.

MOTION FOR PHYSICAL EXAMINATION

5

Plaintiff filed a motion for an order directing Defendant to have Plaintiff examined

6

by prison doctors and tested to determine the levels of arsenic in his body. (ECF No. 65.)

7

Plaintiff contends that such testing is necessary to link his medical conditions to arsenic

8

contamination. He argues that the California Department of Corrections and

9

Rehabilitation (“CDCR”) is required to provide Plaintiff’s medical care without cost, and

10

therefore should be required to provide such laboratory testing without cost.

11

Federal Rule of Civil Procedure 35(a) permits the Court to order a party to submit

12

to a physical examination, or to order a party to produce for examination a person who is

13

in its custody or under its legal control. It does not provide authority for the Court to order

14

a defendant to pay for testing that might substantiate a plaintiff’s case.

15

Nor does CDCR’s statutory obligation to pay for Plaintiff’s medical care impose

16

such an obligation. The instant case involves Plaintiff’s alleged exposure to arsenic and

17

ensuing medical complications. It does not involve a claim that his alleged arsenic

18

exposure was improperly treated. If Plaintiff believes testing of his arsenic levels was

19

required for medical treatment and improperly denied, he should raise such allegations

20

in a separate action.

21

Plaintiff seeks to impose on Defendant the burden of producing evidence to

22

support Plaintiff’s case. Plaintiff has provided no authority for doing so and the Court

23

finds none. Accordingly, his motion for a physical examination at Defendant’s expense

24

will be denied.

25
26
27
28
13

1

IX.

2

JUDGMENT

MOTION FOR EXTENSION OF TIME TO OPPOSE MOTION FOR SUMMARY

3

Because of the pending motions discussed herein, Plaintiff filed a motion for an

4

extension of time to oppose Defendant’s motion for summary judgment. (ECF No. 79.)

5

Defendant did not file an opposition.

6

In light of the Court’s ruling herein extending the discovery cut-off, Plaintiff is

7

granted to and including March 20, 2015 to file an opposition to Defendant’s motion for

8

summary judgment.

9

X.

REQUEST THAT COURT NOTIFY PLAINTIFF AS TO WHETHER IT RECEIVED
MOTION

REQUESTING

EXTENSION

10

PLAINTIFF’S

11

OF

TIME

TO

OPPOSE

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

12

Plaintiff asks for notification as to whether the Court received his motion for

13

extension of time because he is not sure all of his outgoing mail has been delivered.

14

(ECF No. 80.)
Plaintiff’s request is granted. This order serves as notification in response to

15
16

Plaintiff’s request.

17

XI.

18
19
20
21
22

ORDER
Based on the foregoing, it is HEREBY ORDERED that:
1. Plaintiff’s motion for appointment of expert witness (ECF Nos. 52 & 56) is
DENIED without prejudice;
2. Plaintiff’s motion to compel answers to interrogatories (ECF No. 55) is
DENIED without prejudice;

23

3. Plaintiff may submit further interrogatories to Defendant within 30 days;

24

4. Plaintiff’s request for fees and costs or sanctions in relation to his motion to

25
26
27

compel (ECF No. 55) is DENIED;
5. Plaintiff’s motion for appointment of counsel (ECF No. 56) is DENIED
without prejudice;

28
14

6. Plaintiff’s application to proceed in forma pauperis (ECF No. 56) is DENIED

1
2

as moot;
7. Plaintiff’s request to modify the discovery and scheduling order (ECF No.

3
4

57) is GRANTED;

5

8. The discovery cut-off is HEREBY EXTENDED to February 20, 2015;

6

9. Plaintiff’s motion for extension of time to file a motion to compel (ECF No.

7

64) is GRANTED;

8

10. The deadline for filing motions to compel is HEREBY EXTENDED to

9

February 20, 2015;

10

11. Plaintiff’s motion for physical examination (ECF No. 65) is DENIED;

11

12. Plaintiff’s motion for extension of time to file an opposition to Defendant’s

12

motion for summary judgment is granted (ECF No. 79);

13

13. Plaintiff may file his opposition to the motion for summary judgment on or

14

before March 20, 2015; and

15

14. Plaintiff’s request to be notified as to whether the Court received his motion

16

for extension of time to oppose the summary judgment motion (ECF No.

17

80) is GRANTED.

18
19
20
21

IT IS SO ORDERED.
Dated:

December 8, 2014

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

22
23
24
25
26
27
28
15