Smith v. Weiss et al
Filing
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ORDER DENYING Plaintiff's 41 Motion for Reconsideration of Magistrate Judge's Ruling and Renewed Motion for Protective Order signed by District Judge Dale A. Drozd on 4/3/2020. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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LAWRENCE CHRISTOPHER SMITH,
Plaintiff,
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ORDER DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION OF
MAGISTRATE JUDGE’S RULING AND
RENEWED MOTION FOR PROTECTIVE
ORDER
Defendants.
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No. 1:18-cv-00852-NONE-BAM (PC)
(Doc. No. 41)
v.
WEISS, et al.,
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I.
Procedural History
Plaintiff Lawrence Christopher Smith is a state prisoner proceeding pro se and in forma
pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
On May 23, 2018, the assigned magistrate judge issued findings and recommendations in
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Smith v. Chanelo (“Smith I”), Case No. 1:16-cv-01356-NONE-BAM (PC), recommending that:
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(1) the action proceed on plaintiff’s first amended complaint only as to his excessive force claim
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against defendants Sotelo, P. Chanelo, D. Wattree, K. Hunt, L. Castro, A. Gonzalez, E. Ramirez,
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and R. Rodriguez, on March 13, 2013; (2) the Court sever the misjoined claims, into three
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separate cases and such cases be opened, for excessive force with respect to the alleged incidents
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of: September 9, 2013 against defendant D. Knowlton; November 15, 2013 against defendants E.
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Weiss, O. Hurtado, and F. Zavleta; and February 6, 2014 against defendants D. Gibbs and D.
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Hardy; (3) plaintiff’s improperly joined claims of February 4, 2015, February 25, 2015, and
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September 2, 2015 be dismissed without prejudice to their re-filing; and (4) plaintiff’s remaining
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claims and defendants be dismissed for failure to state a cognizable claim. Smith I, Doc. No. 16.
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The Court adopted those findings and recommendations in full on June 20, 2018, and plaintiff’s
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misjoined claims were opened as separate actions. (Doc. No. 2.) Accordingly, the instant action
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was opened as Smith v. Weiss, Case No. 1:18-cv-00852-NONE-BAM (PC), and proceeds against
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Defendants E. Weiss, O. Hurtado, and F. Zavleta with respect to the alleged excessive force
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incident of November 15, 2013.
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On July 8, 2019, Defendants Hurtado, Weiss, and Zavleta filed an answer to the
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complaint. (Doc. No. 19.) The magistrate judge then issued a discovery and scheduling order on
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July 15, 2019. (Doc. No. 21.) On September 26, 2019, plaintiff moved to amend the complaint
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and lodged a second amended complaint. (Doc. No. 25.) The magistrate judge denied the motion
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to amend on October 1, 2019, finding that it was brought in bad faith. (Doc. No. 27.)
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On August 29, 2019, plaintiff filed a motion for a protective order seeking to quash his
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video deposition. (Doc. No. 23.) On October 15, 2019, plaintiff filed a motion for relief from
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judgment/order challenging the magistrate judge’s order denying plaintiff’s motion amend by
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which he sought to file a second amended complaint. (Doc. No. 28.) On March 2, 2020, the
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magistrate judge denied the two motions and directed the parties to meet and confer, and agree on
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a date for plaintiff’s deposition, to be taken on or before April 30, 2020. The discovery deadline
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was extended to April 30, 2020, and the dispositive motion was extended to July 1, 2020. (Doc.
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No. 38.)
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On March 30, 2020, plaintiff filed the instant motion seeking reconsideration of the
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magistrate judge’s March 2, 2020 order, and a renewed his motion for protective order to quash
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or stay his deposition pending the court’s resolution of his motion for reconsideration. (Doc. No.
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41.) Defendants have not yet had an opportunity to file a response, however, the Court finds a
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response is unnecessary. Plaintiff’s pending motions are deemed submitted. Local Rule 230(l).
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II.
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Motion for Reconsideration
Pursuant to Local Rule 303, a party may seek reconsideration of a magistrate judge’s
ruling by filing a request for reconsideration by a Judge and serve the request on the magistrate
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judge and all parties, specifically designating the ruling, or part thereof, objected to and the basis
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for that objection. Local Rule 303(c). The applicable standard of review for such a request is the
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“clearly erroneous or contrary to law” standard set forth in 28 U.S.C. § 636(b)(1)(A). See Fed. R.
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Civ. P. 72(a).
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A.
Denial of Motion for Protective Order
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In his motion for reconsideration, plaintiff contends that the magistrate judge’s denial of
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his motion for protective order, which requested that defendants be barred from taking plaintiff’s
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deposition absent a showing of good cause, constitutes clear error. Primarily, plaintiff argues that
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a deposition in this matter is futile, as he is entitled to summary judgment as a matter of law based
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on his pleadings and a “Crime Report” regarding the November 15, 2013 incident placed at issue
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in this action. Plaintiff therefore argues that his deposition is unnecessary and merely a fishing
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expedition, meant to harass him and to force him to continue being housed at California State
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Prison – Corcoran, all of which constitutes good cause for the issuance of the protective order he
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requests. (Doc. No. 41, pp. 3–4.)
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The magistrate judge originally construed plaintiff’s motion as an argument that he should
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not be required to participate in his deposition because he did not have his legal files to produce
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the documents requested or to prepare for his deposition, rather than a wholesale refusal to
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engage in his deposition. (Doc. No. 38, p. 4.) However, as set forth in his motion for
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reconsideration, plaintiff now appears to be refusing to participate in any deposition, on the
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ground that he is entitled to summary judgment on the pleadings, and that any discovery
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conducted in this action would therefore be futile. (Doc. No. 41.)
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Plaintiff is obviously incorrect. Plaintiff’s belief that the allegations presented in his
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pleadings, without more, should result in the granting of summary judgment in his favor, does not
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relieve him of the obligation to participate in discovery as required by the Federal Rules of Civil
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Procedure. Plaintiff brought this civil action and defendants are clearly entitled to take his
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deposition. Plaintiff is simply unreasonably refusing to cooperate in that regard. Although
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plaintiff should be provided with his legal documents to allow him to adequately prepare for his
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deposition, there is no indication in the instant motion that a lack of legal documentation or
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preparation prevented plaintiff from being deposed. Instead, plaintiff argues, without any
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support, that the taking of his deposition would be futile and constitute harassment. The court
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rejects that argument in its entirety. If plaintiff continues to fail to cooperate with discovery, this
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action may be subject to terminating sanctions due to plaintiff’s failure to obey a court order and
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failure to cooperate in discovery. See Fed. R. Civ. P. 37(b)(2)(a)(v).
Plaintiff’s mere disagreement with the magistrate judge’s ruling on his request for the
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issuance of a protective order, as discussed above, is similarly not sufficient to meet the “clearly
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erroneous or contrary to law” standard set forth in 28 U.S.C. § 636(c). Plaintiff’s request for
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reconsideration of this ruling will therefore be denied.
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B.
Denial of Motion for Relief from Judgment/Order
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In support of his request for reconsideration of the magistrate judge’s denial of his motion
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for relief from judgment/order, plaintiff raises two main arguments. First, plaintiff contends that
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both the district judge and the magistrate judge assigned to this case are biased and should not
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preside over the instant action. Plaintiff then argues that any deficiencies in his pleadings are a
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result of the actions of defendants and their counsel in obstructing his access both to the courts
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and to adequate nutrition. (Doc. No. 41.)
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On these grounds, plaintiff requests relief in the form of a protective order prohibiting
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defendants from conducting any deposition of him, by video or otherwise, and granting plaintiff
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permission to lodge a first amended complaint to include a viable claim of conspiracy against
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defendants pursuant to Federal Rule of Civil Procedure 22(a). (Id. at 6.)
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1.
Alleged Bias of Assigned Judges
In this motion, plaintiff appears to argue that U.S. District Judge Lawrence J. O’Neill, the
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district judge previously assigned to the instant action, was prohibited from adjudicating this
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action (in addition to Smith v. Chanelo and the subsequent severed actions, discussed above) due
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to his bias against plaintiff and pursuant to 18 U.S.C. § 451.1 Plaintiff claims that Judge O’Neill
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The Court notes that there is no 18 U.S.C. § 451. Plaintiff may have intended to cite to 28
U.S.C. § 455 regarding “[d]isqualification of justice, judge, or magistrate judge,” however the
lack of an accurate citation to statutory authority does not change the Court’s analysis of this
issue.
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was a witness to alleged misconduct by defense counsel in one of plaintiff’s prior actions, and
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therefore was privy to disputed material facts that were relevant to plaintiff’s later cases. (Doc.
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No. 41, p. 5.)
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Plaintiff further argues that U.S. Magistrate Judge Barbara A. McAuliffe is also biased,
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and alleges that the referral of his severed actions to her and Judge O’Neill were retaliatory, as
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evidenced by Judge McAuliffe’s rulings in the severed actions. Plaintiff contends that Judge
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McAuliffe has repeatedly been made aware, through plaintiff’s pleadings, of the conspiracy
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between defendants and their counsel to deny and violate plaintiff’s rights, but has nonetheless
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repeatedly failed to act and has even gone so far as to act as counsel for defendants on several
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occasions in the various actions. Plaintiff argues that this establishes a bias by Judge McAuliffe
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that is in violation of federal law. (Id.)
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A magistrate judge must disqualify himself or herself if their “impartiality might be
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reasonably questioned,” 28 U.S.C. § 455(a), or if the magistrate judge “has a personal bias or
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prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the
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proceeding,” 28 U.S.C. § 455(b)(1). “[J]udicial rulings or information acquired by the court in its
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judicial capacity will rarely support recusal.” United States v. Johnson, 610 F.3d 1138, 1147 (9th
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Cir. 2010) (citing Liteky v. United States, 510 U.S. 540, 555 (1994)). The objective test for
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determining whether recusal is required is whether a reasonable person with knowledge of all the
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facts would conclude that the judge’s impartiality might reasonably be questioned. Johnson, 610
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F.3d at 1147 (quotation marks and citation omitted); Pesnell v. Arsenault, 543 F.3d 1038, 1043
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(9th Cir. 2008). “Adverse findings do not equate to bias,” Johnson, 610 F.3d at 1147.
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To the extent plaintiff is requesting recusal of District Judge O’Neill, that request is
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denied as moot, since Judge O’Neill is no longer an active district judge nor is he now presiding
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over this action.
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As to Judge McAuliffe, as discussed above, plaintiff’s primary objection to Judge
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McAuliffe’s assignment to this action is that she has repeatedly issued orders ruling against him.
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However, this is not sufficient to show personal bias or prejudice by the assigned judicial officer.
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Plaintiff’s belief that Judge McAuliffe is biased against him and that she has acted as counsel on
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behalf of defendants does not make recusal either necessary or appropriate under § 455. Clemens
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v. U.S. Dist. Ct. for Cent. Dist. of Cal., 428 F.3d 1175, 1180 (9th Cir. 2005) (noting that
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speculative allegations of bias are not sufficient to warrant recusal). As such, any request for
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recusal with respect to Magistrate Judge McAuliffe will also be denied.
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2.
Access to Courts and Adequate Nutrition
Plaintiff next argues that it is a fact that defendants and their counsel have repeatedly
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obstructed his access to the courts by either actively participating in the destruction of his legal
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property or allowing prison staff to repeatedly deny him access to the prison law library. Further,
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plaintiff alleges that his cognitive reasoning ability has been impaired by denials of adequate
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nutrition and medical care, and therefore any deficiencies in his complaint pursuant to Federal
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Rule of Civil Procedure 15 and 22(a) regarding defendants’ conspiracy to deny and violate his
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constitutional rights is excusable neglect on his part. (Id. at 5–6.) Plaintiff alleges that he became
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extremely sick while housed at CSP-Corcoran, and as a result he continues to suffer from an
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extreme inability to fully concentrate. (Id. at 7.)
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The Court finds no merit to these allegations advanced by plaintiff. Exhibits attached to
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plaintiff’s complaint reveal that he filed an inmate administrative appeal on November 4, 2019,
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alleging that he had been denied physical access to the facility law library since his arrival at the
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institution on June 28, 2019. (Id. at 8.) However, in the First Level response to his appeal, it
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appears that the law library records revealed that plaintiff was granted physical access to the law
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library on September 18, September 25, and October 2, 2019, but that plaintiff refused the access
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offered to him. Thereafter, plaintiff physically attended the law library on November 20 and
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December 11, 2019, and January 8, 2020. (Id. at 11.) Aside from plaintiff’s unsupported
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allegations to the contrary, it appears to the Court that plaintiff has not been denied access to the
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law library at his institution of confinement.
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Plaintiff has also attached patient education materials regarding “Anemia, Nonspecific,”
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apparently in support of his contention that he has been denied access to adequate nutrition, thus
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impairing his ability to litigate this action. (Id. at 14–15.) However, the attached document does
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not specify the cause of plaintiff’s anemia (at least nine common causes of anemia are listed, only
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one of which references nutrition). Moreover, plaintiff’s health conditions, which are being
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raised by him for the first time in the instant motion, do not provide a basis for a finding that the
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magistrate judge’s ruling was “clearly erroneous or contrary to law.”
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III.
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Motion for Protective Order or Stay of Discovery
Finally, plaintiff renews his motion for a protective order, or for a stay of discovery (his
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deposition) on the grounds that his motion for reconsideration is pending before the court for
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decision. (Doc. No. 41, p. 17.) Plaintiff states that on March 11, 2020, pursuant to the magistrate
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judge’s order, defense counsel contacted plaintiff via telephone and notified plaintiff of counsel’s
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intent to conduct a deposition of plaintiff on April 16, 2020. Plaintiff informed defense counsel
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of his intent to file a motion for a protective order. Defense counsel offered to assist in locating
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plaintiff’s legal documents for forwarding to plaintiff’s current institution of confinement, also as
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directed by the magistrate judge’s order, but plaintiff instructed counsel that this would be futile,
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because plaintiff had been informed by prison officials that he would be sent back to Pelican Bay
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State Prison, where plaintiff’s legal documents are apparently already located. Plaintiff informed
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defense counsel that he would prefer to address this issue once he was back at Pelican Bay and, if
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needed, plaintiff would request defense counsel’s assistance from there. Defense counsel agreed,
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at plaintiff’s request, to immediately forward to him a conformed copy of the “Crime Report”
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generated on November 15, 2013. (Id. at 21.)
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Because the Court is resolving plaintiff’s motion for reconsideration in this order,
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plaintiff’s request for a protective order or for a stay of discovery on the basis that his motion
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remains pending before the court for decision will be denied as moot.
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Plaintiff further argues that the issuance of a protective order is warranted because the
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Ninth Circuit has previously found good cause to deny discovery where a complaint did not raise
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factual issues that required discovery for its resolution, citing Rae v. Union Bank, 725 F.2d 478,
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487 (9th Cir. 1984). To the extent plaintiff is again arguing that defendants should not be
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permitted to take his deposition on the ground that his pleadings provide sufficient evidence to
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warrant the granting of summary judgment in his favor, the Court remains unpersuaded. The
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cited case is inapplicable to the instant action. In Rae the Ninth Circuit concluded that a stay of
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discovery was appropriate where the district court ultimately found that the plaintiff’s federal
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claims were wholly insubstantial and frivolous and dismissed them without leave to amend. Rae,
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725 F.2d at 479. At this juncture, in this case, a ruling of summary judgment solely on the basis
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of the pleadings would be premature since discovery is warranted in light of the factual
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allegations of the complaint.
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IV.
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Conclusion
As the magistrate judge warned in the order denying plaintiff’s motions for a protective
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order and for relief from judgment/order, plaintiff’s repetitive, misnamed, overlapping, and
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otherwise harassing filings waste this court’s limited resources and delay the resolution of this
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action. The instant motion, wherein plaintiff is again attempting to abdicate his responsibility to
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participate in discovery and to renew his repeatedly rejected request to file a further amended
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complaint in this action, is no exception. Plaintiff is once again warned that the filing of
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additional baseless motions, including motions for reconsideration which merely repeat
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arguments already raised before the magistrate judge, will likely subject him to the imposition of
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sanctions, up to and including terminating sanctions. Furthermore, plaintiff’s failure to cooperate
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in the taking of his deposition may also result in the imposition of terminating sanctions, due to
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plaintiff’s failure to obey a court order and failure to cooperate in discovery.
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For the reasons stated above, IT IS HEREBY ORDERED as follows:
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1. Plaintiff’s motions for reconsideration and motion for protective order, (Doc. No 41),
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are DENIED;
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2. Plaintiff’s deposition shall be taken on or before April 30, 2020; and
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3. This matter is referred back to the assigned magistrate judge for further proceedings
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consistent with this order.
IT IS SO ORDERED.
Dated:
April 3, 2020
UNITED STATES DISTRICT JUDGE
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