Roberts v. Cate et al

Filing 68

ORDER signed by Magistrate Judge Kendall J. Newman on 11/28/2011 ORDERING that defendants' 65 motion for waiver of privilege is DENIED without prejudice; and defendants' 67 motion to extend the dispositive motion deadline is DENIED without prejudice. (Yin, K)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

TONY ROBERTS,

11
12

Plaintiff,

No. 2:08-cv-2624 JAM KJN P

vs.

13

MATTHEW CATE, et al.,

14

Defendants.

15
16

ORDER
/

Plaintiff is a state prisoner proceeding without counsel. On October 17, 2011,

17

defendants filed a motion for court order waiving plaintiff’s psychotherapist-patient privilege in

18

connection with plaintiff’s mental health treatment at California Medical Facility and the

19

California Men’s Colony. Defendants contend that plaintiff has placed his mental health

20

treatment at issue by claiming that defendants ignored a recommendation that plaintiff be housed

21

near his family in Southern California. Defendants cite the court’s November 9, 2010 order in

22

which the court stated that

23
24
25

[t]he nature of mental health treatment at California Men’s Colony
is relevant to plaintiff’s allegations against Cate and Knowles
based on plaintiff’s allegations that these defendants knew or
should have known that appropriate mental health treatment
needed by plaintiff was allegedly not available to plaintiff at
California Men’s Colony.

26
1

1

(Dkt. No. 33 at 2 n.1.)

2

Plaintiff opposes the motion on the ground that discovery closed on June 8, 2011.

3

Plaintiff states under penalty of perjury that at his March 16, 2011 deposition, plaintiff was asked

4

by prior defense counsel to identify plaintiff’s case manager, and plaintiff responded that B. Rice

5

was plaintiff’s case manager. (Dkt. No. 66 at 6.) Plaintiff states that during the first week of

6

October, 2011, he was contacted by B. Rice, who told plaintiff she was contacted by the litigation

7

coordinator and asked plaintiff to contact defendants’ attorney. (Id.) B. Rice asked plaintiff if he

8

would sign a release, and plaintiff informed her that since the discovery deadline expired on June

9

8, 2011, plaintiff did not believe defendants were entitled to obtain the medical information, and

10

would not sign the release. (Id.) Plaintiff argues that defendants have failed to show good cause

11

to reopen discovery, or to address why defendants failed to seek these mental health records prior

12

to the close of discovery. Plaintiff contends that defendants’ motion “is simply an end run

13

around the discovery deadline set by this court.” (Dkt. No. 66 at 2.)

14

Defendants did not file a reply. Rather, on November 3, 2011, defendants filed a

15

motion to extend the December 1, 2011 dispositive motion deadline until 60 days after the court

16

rules on defendants’ motion to waive privilege, stating “plaintiff’s mental health providers are

17

precluded from discussing “plaintiff’s relevant mental health treatment” and

18
19

[a]bsent information from Plaintiff’s mental health providers,
Defendants are precluded from meeting their initial burden on
summary judgment of establishing the absence of a genuine issue
of fact.

20
21
22

(Dkt. No. 67 at 2.)
The court’s initial scheduling order issued on December 15, 2010. (Dkt. No. 36.)

23

On March 8, 2011, plaintiff’s motion to modify the scheduling order was granted, and the

24

discovery deadline was extended to June 8, 2011. (Dkt. No. 42.) On August 8, 2011, discovery

25

was reopened for the limited purpose of resolving one discovery motion, but the parties were

26

reminded that discovery was closed. (Dkt. No. 60 at 4.)
2

1

The record reflects defendants were put on notice as early as November 9, 2010,

2

that plaintiff’s mental health records were relevant to this action. Thus, the court finds

3

defendants’ motion for waiver of privilege is untimely as it was not filed prior to the discovery

4

deadline. The denial of this motion is without prejudice, however, should defendants be able to

5

show good cause to reopen discovery for this purpose. Fed. R. Civ. P. 16(b)(4). In light of the

6

denial of defendants’ motion, defendants’ motion to extend the dispositive motion deadline is

7

also denied without prejudice.

8

Accordingly, IT IS HEREBY ORDERED that:

9

1. Defendants’ October 17, 2011 motion for waiver of privilege (dkt. no. 65) is

10

denied without prejudice; and

11

2. Defendants’ November 3, 2011 motion to extend the dispositive motion

12

deadline (dkt. no. 67) is denied without prejudice.

13

DATED: November 28, 2011

14
15

_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

16
17

robe2624.wai

18
19
20
21
22
23
24
25
26
3