Herrera v. Statti

Filing 64

ORDER signed by Magistrate Judge Dale A. Drozd on 05/02/13 ordering plaintiff's discovery motion 50 is granted in part. Plaintiff is granted 30 days from the date of service of this order to review his central file and submit a supplmental opposition if he so desires. Within 14 days of service of plaintiff's supplemental opposition, if any, defendants may file a response thereto. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERTO HERRERA,

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Plaintiff,

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vs.

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No. 2:10-cv-1154 MCE DAD P

P. STATTI, et al.,

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Defendants.

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ORDER
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Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking
relief under 42 U.S.C. § 1983.
On November 20, 2012, defendants filed a motion to dismiss brought pursuant to

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unenumerated Rule 12(b) of the Federal Rules of Civil Procedure due to plaintiff’s alleged

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failure to exhaust his administrative remedies prior to bringing suit as required. Plaintiff filed an

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opposition to the motion and also filed a discovery motion in which he asks the court to order the

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appeals coordinators at Corcoran State Prison and High Desert State Prison to provide him with

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copies of all of his administrative grievances. Plaintiff contends that he needs copies of these

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records to demonstrate that he attempted to exhaust his claims in this action.

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As an initial matter, this court is unable to issue an order against any individuals,
such as the appeals coordinators, who are not parties to the suit pending before it. See Zenith
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Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112 (1969); Zepeda v. United States

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Immigration Service, 753 F.2d 719, 727 (9th Cir. 1985) (“A federal court may issue an injunction

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if it has personal jurisdiction over the parties and subject matter jurisdiction over the claim; it

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may not attempt to determine the rights of persons not before the court.”). However, in the

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interest of justice, the court will not rule on defendants’ motion to dismiss at this time. Instead,

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the court will grant plaintiff thirty days to review his central file, which should contain copies of

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his administrative grievances, and submit a supplemental opposition to the pending motion to

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dismiss if he so desires to demonstrate that he exhausted his excessive use of force claim or that

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he should be excused from complying with the exhaustion requirement. The court will also grant

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defendants leave to file a response to any supplemental opposition submitted by plaintiff.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s discovery motion (Doc. No. 50) is granted in part; and

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2. Plaintiff is granted thirty days from the date of service of this order to review

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his central file and submit a supplemental opposition if he so desires. Within fourteen days of

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service of plaintiff’s supplemental opposition, if any, defendants may file a response thereto.

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DATED: May 2, 2013.

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DAD:9
herr1154.appeals

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