Drake v. Kernan, et al.

Filing 76

ORDER Directing Plaintiff to File Response to Outstanding Discovery Requests on or before November 15, 2019 signed by Magistrate Judge Stanley A. Boone on 10/26/2019. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SAM DRAKE,

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Plaintiff,

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v.
SCOTT KERNAN, et al.,

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Defendants.

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Case No.: 1:17-cv-01500-AWI-SAB (PC)
ORDER DIRECTING PLAINTIFF TO FILE
RESPONSE TO OUTSTANDING DISCOVERY
REQUESTS ON OR BEFORE NOVEMBER 15,
2019
[ECF Nos. 66, 74]

Plaintiff Sam Drake is appearing pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983.
This action is proceeding on the following claims: (1) retaliatory food poisoning under the First

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and Eighth Amendment against Defendants Navarro and Gonzalez; (2) due process violation relating

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to an RVR hearing under the Fourteenth Amendment against Defendant Gonzalez; (3) conspiracy to

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set him up for attack by other inmates against Defendants Gonzalez, McCabe, Navarro, and Sexton;

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(4) for setting him up for attack under the Eighth Amendment against Defendants Allison, Gonzalez,

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Moak, McCabe, Navarro, and Sexton; and (5) lack of medical treatment provided in response to his

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complaints of food poisoning against Defendant Dr. McCabe.

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On December 19, 2018, Defendants filed an answer to the second amended complaint.

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On December 27, 2018, the Court issued the discovery and scheduling order.

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On January 7, 2019, Defendants propounded exhaustion-related discovery, including requests

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for production and two sets of interrogatories. Plaintiff has not yet responded to the discovery because

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during the course of this litigation he was transferred to the Fresno County Jail and has been without

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his property.
On August 12, 2019, the Court granted, in part, Defendants’ motion to compel responses to

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their outstanding discovery requests, directed Plaintiff to file responses once he regained access to his

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property, and directed a status report be filed by October 10, 2019. (ECF No. 66.)
On September 11, 2019, Defendants filed an update on the status of Plaintiff’s legal property

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and submit that Plaintiff’s property was “transported” and/or “shipped” to Plaintiff at the Fresno
County Jail on September 9, 2019.
Because it was not clear whether Plaintiff received his legal property, the Court directed

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Plaintiff to file a response on or before September 27, 2019. (ECF No. 69.) Plaintiff filed a response

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on September 25, 2019, and also filed a separate request for appointment of a private investigator

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and/or runner. (ECF Nos. 70, 71.) In his response Plaintiff indicated that as of September 18, 2019,

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he has not been notified of the transfer or receipt of his property. Thus, it was not clear whether

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Plaintiff actually received his legal property in order to respond to the outstanding discovery requests.

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Therefore, on October 8, 2019, the Court directed Defendants to file a further response. (ECF No.

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73.)
Defendants filed a response on October 15, 2019. (ECF No. 74.) In the response, defense

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counsel submits that she contacted both Mule Creek State Prison and the Fresno County Jail to inquire

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about the status of Plaintiff’s property. Mule Creek State Prison officials advised counsel that five

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boxes of property were located and provided for transport, and that the Fresno County Sheriff Officers

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assumed custody of the property on September 9, 2019. On September 11, 2019, prison staff called

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the Fresno County Jail and confirmed receipt of 5 boxes of Plaintiff’s property which includes some

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legal property. In addition, Plaintiff accessed the property on September 29, 2019. Because Plaintiff

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has now received his property, Plaintiff must respond to the exhaustion-related discovery propounded

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by Defendants on January 7, 2019.

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Accordingly, it is HEREBY ORDERED that:

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Plaintiff shall file a response the requests for production and two sets of interrogatories
propounded by Defendants on January 7, 2019, on or before November 15, 2019; and

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2.

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Plaintiff is advised that he must comply with all discovery deadlines and rules which

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includes supplementing any prior responses to requests for production. See Fed. R.

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Civ. P. 26 & 37.

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IT IS SO ORDERED.

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Dated:

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October 16, 2019
UNITED STATES MAGISTRATE JUDGE

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