Bettencourt v. Parks et al

Filing 68

ORDER DENYING Plaintiff's 67 Motion to Compel as premature;ORDER DENYING Plaintiff's 67 Motion for Summary Judgment without prejudice; ORDER DENYING Plaintiff's Motion for Settlement Conference, signed by Magistrate Judge Barbara A. McAuliffe on 12/2/2020. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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1:16-cv-00150-DAD-BAM (PC)

GARY RAY BETTENCOURT,

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ORDER DENYING PLAINTIFF’S MOTION
TO COMPEL AS PREMATURE

Plaintiff,

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v.

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PARKER, et al.,

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ORDER DENYING PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT WITHOUT
PREJUDICE
Defendants.

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ORDER DENYING PLAINTIFF’S MOTION
FOR SETTLEMENT CONFERENCE

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(ECF No. 67)

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I.

Procedural Background
Plaintiff Gary Ray Bettencourt (“Plaintiff”) is a state prisoner 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 proceeds on

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Plaintiff’s claims of deliberate indifference in violation of the Eighth Amendment against

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Defendant Crooks for pulling two teeth that did not need to be pulled, and against Defendants

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Parker and Guzman for filing down six healthy teeth with a dental tool used for drilling cavities.

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On September 9, 2020, the Court identified this case as an appropriate case for the post-

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screening ADR (Alternative Dispute Resolution) project, set the case for a November 10, 2020

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settlement conference, and stayed the action. (ECF No. 57.) On October 6, 2020, Defendants

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filed a request to opt-out of the ADR project. (ECF No. 62.) The Court granted the request, lifted

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the stay, and vacated the November 10, 2020 settlement conference. (ECF No. 63.) On October
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7, 2020, the Court also opened discovery and issued a Discovery and Scheduling Order. (ECF

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No. 64.)

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Following an apparent request from Plaintiff for a case update regarding the settlement

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conference, on November 16, 2020, the Court issued an order clarifying that the settlement

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conference was vacated, this action is now proceeding with discovery, and the case is not

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currently set for any other settlement conferences or hearings.
Currently before the Court is a document titled “Motion & Request for Admission of

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Documents Pursuant to FRCP rule 36, Issues Summarily proves plaintiff case. Motion for

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Summary Judgement; in favor of Plaintiff,” filed by Plaintiff on December 1, 2020. (ECF No.

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67.) Upon review of the document, the Court construes the filing as a motion to compel

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discovery responses, a motion for summary judgment, and a motion for a settlement conference.

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Defendants have not yet had an opportunity to file a response, but the Court finds a response

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unnecessary. The motions are deemed submitted. Local Rule 230(l).

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II.

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Motion to Compel
Although difficult to understand, it appears that Plaintiff is arguing that Defendants have

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failed to timely respond to his discovery requests. Based on the attachments to the motion,

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Plaintiff served his discovery requests on Defendants on November 9, 2020. (ECF No. 67, p. 14.)

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Pursuant to the Court’s October 7, 2020 Discovery and Scheduling Order, “[r]esponses to written

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discovery requests shall be due forty-five (45) days after the request is first served.” (ECF No.

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64, p. 1 (emphasis in original).)

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As Plaintiff has not attached any other evidence of written discovery requests served on

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Defendants prior to November 9, 2020, Defendants responses are not due until forty-five days

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after service, which is December 24, 2020. Thus, Plaintiff’s motion to compel is premature. If

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Defendants fail to respond by December 24, 2020, or Plaintiff finds Defendants’ responses

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improper or insufficient, Plaintiff may re-file his motion to compel. Plaintiff is advised that any

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motion to compel should include Plaintiff’s written discovery requests, Defendants’ responses,

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and an explanation of why those responses are not sufficient.

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III.

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Motion for Summary Judgment
Plaintiff also appears to be requesting that the Court grant summary judgment in his favor.

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Plaintiff’s motion is denied, without prejudice, for failing to comply with Local Rule 260.

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Pursuant to that rule, “[e]ach motion for summary judgment . . . shall be accompanied by a

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‘Statement of Undisputed Facts’ that shall enumerate discretely each of the specific material facts

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relied upon in support of the motion and cite the particular portions of any pleading, affidavit,

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deposition, interrogatory answer, admission, or other document relied upon to establish that fact.”

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Local Rule 260(a).

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Although Plaintiff has attached exhibits and other documents to his motion that he claims

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support his case, he has not included a separate statement of undisputed facts as required by Local

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Rule 260(a). Plaintiff will be permitted to re-file his motion at a future date in compliance with

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the Court’s Local Rules.

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IV.

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Motion for Settlement Conference
As the Court has noted above, there is currently no settlement conference scheduled in this

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action, as Defendants have opted out of the Court’s early ADR project. Plaintiff, however,

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requests that the Court set a settlement conference date in March 2021. Plaintiff argues that it

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will not take longer than that for the Attorney General to review Plaintiff’s medical files and to

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agree on a settlement.

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It is not for Plaintiff to decide how much time is necessary for Defendants to review

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Plaintiff’s medical files, or to determine whether Defendants should agree to a settlement in this

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case. Without a clear indication from all parties to the action that they are at least willing to

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discuss settlement, the Court does not find that it would be an efficient use of judicial resources to

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set this case for a settlement conference at this time. The parties are reminded that they are free

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to discuss settlement of this matter at any time without judicial involvement by continuing to

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communicate among themselves. If in the future the parties jointly decide that this action would

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benefit from a Court-facilitated settlement conference, they may so inform the Court.

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V.

Order
Based on the foregoing, IT IS HEREBY ORDERED as follows:

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1. Plaintiff’s motion to compel, (ECF No. 67), is DENIED, without prejudice, as premature;

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2. Plaintiff’s motion for summary judgment, (ECF No. 67), is DENIED, without prejudice to

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re-filing in compliance with Local Rule 260(a); and
3. Plaintiff’s motion for a settlement conference, (ECF No. 67), is DENIED, without
prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

December 2, 2020

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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