Treglia v. Director of California Department of Corrections et al

Filing 43

ORDER signed by Magistrate Judge Kendall J. Newman on 5/24/2010 ORDERING that pltf's 26 motion to compel discovery and 27 motion for sanctions is DENIED; pltf's 39 motion to volunarily dismiss certain claims is GRANTED; claims five, ten, eleven, fourteen and fifteen are dismissed from the 2/6/09 cmplt; and pltf's 41 pretrial statement is DISREGARDED. (Yin, K)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 Defendants. 15 / 16 17 18 19 20 21 22 23 24 25 26 Plaintiff is a state prisoner proceeding without counsel. On February 22, 2010, plaintiff filed a motion to compel discovery and a motion for sanctions. On February 25, 2010, defendants filed an opposition to both motions. Plaintiff has not filed a reply. Plaintiff contends he served a request for admissions on December 14, 2009, and a request for documents on December 17, 2009. However, counsel for defendants wrote plaintiff on February 11, 2010, and stated the only discovery request received was entitled "Plaintiff's Second Request for Production of Documents," propounded to defendants Villasenor and the Secretary of CDCR. (Defts.' Opp'n at Ex. B.) Counsel stated he had not received nor reviewed any "Request for Admissions" nor any other request for production, and assumed the use of "Second Request" was an error. (Defts.' Opp'n at Ex. B.) Defendants' response to this request 1 ORDER vs. DIRECTOR OF CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., DANIEL TREGLIA, Plaintiff, No. 2:09-cv-0352 KJN P IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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was signed and served on January 29, 2010. (Defts.' Opp'n at Ex. A.) Plaintiff attached a copy of "Plaintiff's First Request for Production of Documents" and "Request for Admissions" to his motion to compel. (Id., Ex. 1.) However, plaintiff failed to provide a certificate of service for these discovery requests,1 so the court cannot determine whether plaintiff mailed the documents or to what address. Moreover, plaintiff failed to address defendants' opposition by filing a reply. Because plaintiff has failed to rebut the information provided by defendants, the motion to compel will be denied. The motion for sanctions will also be denied. On April 26, 2010, plaintiff filed a motion to voluntarily dismiss claims five, ten, eleven, fourteen and fifteen of his complaint. On May 18, 2010, defendants were directed to notify the court of any objections. On May 21, 2010, defendants filed a notice of non-opposition to the dismissal of claims five, ten, eleven, fourteen and fifteen. Good cause appearing, plaintiff's April 26, 2010 motion to voluntarily dismiss claims five, ten, eleven, fourteen and fifteen of the February 6, 2009 complaint will be granted. Finally, on May 20, 2010, plaintiff filed a pretrial statement. Plaintiff's filing is premature. First, defendants' motion for summary judgment is pending. Pretrial statements should be prepared after all dispositive motions have been resolved. Second, upon resolution of the summary judgment motion, the court will issue a revised scheduling order that sets forth deadlines for the filing of pretrial statements. Thus, plaintiff's pretrial statement will be disregarded. In accordance with the above, IT IS HEREBY ORDERED that: 1. Plaintiff's February 22, 2010 motion to compel discovery and motion for sanctions are denied. //// The certificate of service provided by plaintiff was completed for the motion to compel discovery, not the discovery requests. 2
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treg0352.mtc

2. Plaintiff's April 26, 2010 motion to voluntarily dismiss certain claims is granted. Claims five, ten, eleven, fourteen and fifteen are dismissed from the February 6, 2009 complaint. 3. Plaintiff's May 20, 2010 pretrial statement is disregarded. DATED: May 24, 2010

_____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

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