Lipsey v. Reddy et al

Filing 63

ORDER DENYING Plaintiff's Request to Allow Him to Waive Discovery and Proceed to Jury Trial 58 , signed by Magistrate Judge Barbara A. McAuliffe on 7/19/2018. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHRISTOPHER LIPSEY, JR.,
Plaintiff,

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vs.
DR. REDDY, et al.,
Defendants.

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Case No.: 1:17-cv-00569-LJO-BAM (PC)
ORDER DENYING PLAINTIFF’S
REQUEST TO ALLOW HIM TO WAIVE
DISCOVERY AND PROCEED TO JURY
TRIAL
(Doc. 58)

Plaintiff Christopher Lipsey 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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Currently before the Court is Plaintiff’s motion requesting to allow him to waive

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discovery and proceed to a jury trial, pending the outcome of Defendants’ motion for summary

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judgment for the failure to exhaust available administrative remedies. (Doc. 58.)

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The Court issued a discovery and scheduling order in this case on February 2, 2018.

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(Doc. 41.) On June 27, 2018, all non-exhaustion discovery was stayed pending a ruling on

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Defendants’ summary judgment motion. (Doc. 56.)

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Plaintiff’s discovery obligations under the Federal Rules of Civil Procedure do not permit

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him to abdicate his responsibility to respond to properly propounded and pending discovery, or

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to appear for a properly noticed deposition. In addition, Plaintiff’s pro se status does not excuse

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intentional non-compliance with discovery rules and court orders. See Lindstedt v. City of

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Granby, 238 F.3d 933, 937 (8th Cir. 2000) (affirming sanction of dismissal, holding that “[a] pro

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se litigant is bound by the litigation rules as is a lawyer, particularly here with the fulfilling of

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simple requirements of discovery); see also Warren v. Guelker, 29 F.3d 1386, 1390 (9th Cir.

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1994) (holding that district court could not decline to impose any sanction for violation of Fed.

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R. Civ. P. 11 simply because plaintiff was proceeding pro se).

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Therefore, at least since the issuance of the Court’s initial discovery and scheduling

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order, Plaintiff has been informed that he is required to cooperate with discovery, including to

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appear and cooperate in a deposition, if any were to be properly noticed. (Doc. 41 ¶ 3 (“Pursuant

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to Federal Rule of Civil Procedure 30(a)(2)(B), Defendant may depose Plaintiff and any other

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witness confined in a prison upon condition that, at least fourteen (14) days before such a

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deposition, Defendant serves all parties with the notice required by Federal Rule of Civil

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Procedure 30(b)(1).”).) The Court will not force Plaintiff to propound any discovery of his own,

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but as the plaintiff in his lawsuit, he must meaningfully cooperate in any proper discovery

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requests made by Defendants.

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The Court takes no position on Defendants’ motion for summary judgment in this order.

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Nevertheless, should any part of Plaintiff’s action survive that motion, Plaintiff will be expected

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to comply with his discovery obligations, as outlined above, or he may be sanctioned, up to and

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including dismissal of this action.

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Accordingly, Plaintiff’s motion to allow him to waive discovery and proceed to a jury

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trial, filed on July 16, 2018 (Doc. 58), is HEREBY DENIED.

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IT IS SO ORDERED.

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Dated:

/s/ Barbara

July 19, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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