Birrell v. Knauf et al

Filing 91

ORDER signed by Magistrate Judge Craig M. Kellison on 03/04/13 ordering plaintiff's motion for an order deeming matters admitted 80 is denied. Plaintiff's motion for issuance of subpoenas duces tecum 84 is denied. Plaintiff's motio n pursuant to Rule 56(d) 88 is denied. Plaintiff may file an opposition to defendants' motion for summary judgment within 30 days of the date of this order. Defendants may file a reply within 20 days after service of plaintiff's opposition. (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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DAVID WESLEY BIRRELL,
aka BELLA-CHRISTINA BIRRELL,

No. 2:10-CV-1707-GEB-CMK-P

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Plaintiff,
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vs.

ORDER

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KEITH HARLAN KNAUF, et al.,
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Defendants.
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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Pending before the court are: (1) plaintiff’s motion for an order deeming

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matters admitted (Doc. 80), and defendants’ opposition thereto (Doc. 82); (2) plaintiff’s motion

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for issuance of subpoenas duces tecum (Doc. 84), and defendants’ opposition thereto (Doc. 87);

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and (3) plaintiff’s motion to postpone consideration of defendants’ motion for summary

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judgment (Doc. 88), and defendants’ opposition thereto (Doc. 90).

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Doc. 80

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Plaintiff seeks an order pursuant to Federal Rule of civil Procedure 36(a)(6) that

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matters be deemed admitted. Plaintiff also seeks sanctions. At issue are defendants’ responses

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to plaintiff’s requests for admissions, nos. 65-75, 130, and 140. As to request nos. 65-75,

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defendants argue in their opposition that plaintiff’s requests fail to comply with Rule 36 because

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they reference outside documents. Defendants state, however, that they treated the requests as

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requests under Rule 36(a)(2) about the truth or accuracy of the referenced documents rather than

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objecting on the basis of failure to comply with Rule 36.

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The court finds that defendants’ responses to plaintiff’s request nos. 65-75 were

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sufficient. In request nos. 65, 66, 69, and 70 plaintiff seeks to determine the accuracy of events

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described in an October 20, 2008, memorandum. In request nos. 67, 68, 71, 72, 73, 74, and 75,

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plaintiff asks about the accuracy of a March 13, 2009, “informational chrono.” Defendants

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reasonably construed the requests as inquiring about the “genuineness of a document” under Rule

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36(a)(2). Moreover, as to both documents, defendants admitted that they are true in their

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entirety.

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As to request no. 130, plaintiff asked: “ADMIT that the filing of a civil action in

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any court of law is a legally ‘protected conduct.’” Defendants objected on the ground that the

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question calls for a legal conclusion. The court finds that this response was sufficient because

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the request sought a legal conclusion about whether certain conduct was considered

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constitutionally protected conduct without regard to application of any facts of the case.

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See Tracchia v. Tilton, 2008 WL 5382253 at *2 (E.D. Cal. 2008).

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In request no. 140, plaintiff again referenced the March 13, 2009, “informational

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chrono” and asked defendants to admit that, when the chrono was written, “Plaintiff had been

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cleared, and was actively visiting a patient in the CMF Hospice.” Defendants objected on the

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grounds that the request is vague , ambiguous, compound, and unintelligible. The court agrees

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with defendants’ characterization of the request. It is not clear what plaintiff means by “had been
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cleared.” The request is also compound in that it asks defendants to admit: (1) that plaintiff has

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been cleared; and (2) that plaintiff was actually visiting a patient in the hospice. Moreover, the

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request is ambiguous in that it is not clear whether plaintiff is referencing visits to a hospice

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patient in the hospice, a non-hospice patient in the hospice, or a non-hospice patient somewhere

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other than the hospice. For these reasons, the court finds that defendants’ response to request no

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140 was sufficient.

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Doc. 84

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Plaintiff seeks issuance of subpoenas by the Clerk of the Court pursuant to Federal

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Rule of Civil Procedure 45(a)(3). In particular, plaintiff seek production of documents by the

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warden of the California Medical Facility, who is a party to this action. In opposition, defendants

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argue that plaintiff’s motion is an untimely discovery request. The court agrees. On October 16,

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2012, the court issued a scheduling order permitting the parties to conduct discovery through

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January 15, 2013. Plaintiff’s motion was signed on January 7, 2013, and filed on January 17,

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2013. The motion requested issuance of subpoenas for production of documents within 30 days

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of service. Even assuming that the motion had been filed the same day it was signed, and that

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subpoenas had issued that same day, and the subpoenas had been returned to plaintiff that same

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day, and the subpoenas had been served that same day, it would have been impossible for

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plaintiff to have obtained responses to the subpoenas by the January 15, 2013, discovery cut-off

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date. Simply put, plaintiff waited too long to seek issuance of subpoenas.

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Doc. 88

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Plaintiff seeks an order pursuant to Federal Rule of Civil Procedure 56(d)

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(formerly Rule 56(f)) to “postpone Defendants’ motion for summary judgment.” Plaintiff cites

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the following grounds in support of his request:

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An outbreak of Norovirus at the prison has resulted in a quarantine and
cessation of all normal institutional programs.

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Additional discovery is anticipated if plaintiff’s discovery motions
(discussed above) are granted.

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3.

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Witnesses who will provide declarations necessary to oppose defendants’
motion for summary judgment are sick or are under quarantine, making it
impossible for plaintiff to obtain their declarations.

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As defendants note in their opposition to plaintiff’s motion, plaintiff “. . . does not explain how

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the particular problem requires either more discovery. . . .” The court agrees. Turning to

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plaintiff’s first reason, he does not state when the outbreak occurred or that the cessation of “all

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normal institutional programs” renders it impossible for him to prepare his opposition. As to

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additional discovery, none will be ordered for the reasons discussed above. Finally, as to the

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availability of witnesses, this basis at best provides grounds for an extension of time to file an

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opposition, which the court will grant.

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s motion for an order deeming matters admitted (Doc. 80) is

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Plaintiff’s motion for issuance of subpoenas duces tecum (Doc. 84) is

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Plaintiff’s motion pursuant to Rule 56(d) (Doc. 88) is denied;

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4.

Plaintiff may file an opposition to defendants’ motion for summary

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denied;

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denied;

judgment within 30 days of the date of this order; and

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Defendants may file a reply within 20 days after service of plaintiff’s

opposition.

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DATED: March 4, 2013
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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