Little v. Marciano et al

Filing 27

ORDER signed by Magistrate Judge Dale A. Drozd on 10/3/2011 ORDERING that dfts' 20 motion to compel is GRANTED; w/in 45 days pltf shall file and serve responses to dfts' first set of interrogatories, first set of requests for production o f documents, and first set of requests for admissions; dfts' 20 request for expenses is DENIED; pltf's 21 objection to subpoena is construed as a motion to quash a subpoena for his medical records, dfts shall forthwith return such medic al records, if any, they received which are unrelated to the claims at bar, in all other respects, pltf's motion is DENIED; dfts' 26 application to modify the scheduling order is GRANTED; the 5/19/11 scheduling order is MODIFIED to extend the deadline for filing dispositive motions to 3/16/2012. (Yin, K)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

DEMETRIC LITTLE,

11
12
13
14
15
16

Plaintiff,

No. 2:10-cv-2490 JAM DAD (PC)

vs.
P.A. C. Marciano, et al.,
Defendants.
/

ORDER

Plaintiff is a state prisoner proceeding pro se and in forma pauperis pursuant to 42

17

U.S.C. § 1983. Plaintiff claims that defendants Marciano, Murphy, and Story violated his rights

18

under the Eighth Amendment by refusing to move plaintiff from an upper to a lower bunk.

19

Plaintiff alleges that he told the defendants that he has a “blind condition” but they refused to

20

move him until after he fell and injured himself. This matter is before the court on defendants’

21

motion to compel discovery responses, plaintiff’s motion for a protective order, and defendants’

22

application to modify the scheduling order.

23

By their motion to compel, defendants seek an order requiring plaintiff to provide

24

responses to each of their first set of interrogatories, requests for production of documents, and

25

requests for admissions. Defendants present evidence that the requests were served on plaintiff

26

on June 1, 2011, responses were due on July 18, 2011, and no responses have been served.
1

1

Plaintiff has not opposed the motion. Good cause appearing, defendants’ motion will be granted.

2

Plaintiff will be directed to serve responses to the discovery requests within forty-five days from

3

the date of this order. Plaintiff is cautioned that failure to comply with this order will result in

4

imposition of sanctions, which may include a recommendation that this action be dismissed.

5

Defendants also seek an ordering requiring plaintiff to pay $380.00 in expenses

6

incurred by defendants in preparing the motion to compel. Plaintiff is an indigent litigant

7

proceeding without counsel, and this is his first failure to respond to discovery in this action.

8

Under the circumstances, the court finds that an award of expenses for this motion would be

9

unjust. Accordingly, the request will be denied. See Fed. R. Civ. P. 37(a)(5)(A)(iii).

10

On July 29, 2011, plaintiff filed a document styled as an objection to the subpoena

11

issued by defendants for plaintiff’s medical records. Plaintiff seeks return of the records to him.

12

With their opposition, defendants present evidence that they first sought authorization from

13

plaintiff to obtain his medical records. Rule 45 of the Federal Rules of Civil Procedure requires a

14

court, on timely motion, to “quash or modify a subpoena that . . . requires disclosure of privileged

15

or other protected matter, if no exception or waiver applies.” Fed. R. Civ. P. 45(c)(3)(A)(iii).

16

“[B]oth courts and commentators alike have consistently taken the view that when a party places

17

his or her physical . . . condition in issue” the right to privacy in medical records is waived.

18

Ferrell v. Glen-Gery Brick, 678 F.Supp. 111, 112-13 (E.D.Pa. 1987). Plaintiff has placed his

19

medical condition in issue and has waived any privacy rights with respect to medical records that

20

concern his “blind condition” as alleged, as well as any injuries he sustained as a result of the fall

21

alleged in the complaint. To the extent that defendants have received medical records that

22

exceed the scope of the issues tendered by the complaint, they will be directed to return such

23

records forthwith. Otherwise, plaintiff’s objection to the subpoena, construed as a motion to

24

quash, will be denied.

25

Finally, defendants seek to extend the deadline for filing dispositive motions due

26

to the pendency of the foregoing discovery motions. Good cause appearing, defendants’ request
2

1

will be granted and the court will, by this order, set a new deadline for filing such motions.

2

In accordance with the above, IT IS HEREBY ORDERED that:

3

1. Defendants’ July 29, 2011 motion to compel is granted.

4

2. Within forty-five days from the date of this order plaintiff shall file and serve

5

responses to defendants’ first set of interrogatories, first set of requests for production of

6

documents, and first set of requests for admissions. Plaintiff is cautioned that failure to comply

7

with this order will result in imposition of sanctions, which may include a recommendation that

8

this action be dismissed.

9

3. Defendants’ July 29, 2011 request for expenses is denied.

10

4. Plaintiff’s July 29, 2011 objection to subpoena is construed as a motion to

11

quash a subpoena for his medical records. Defendants shall forthwith return such medical

12

records, if any, they received which are unrelated to the claims at bar. In all other respects

13

plaintiff’s July 29, 2011 motion is denied.

14
15

5. Defendants’ September 28, 2011 application to modify the scheduling order is
granted.

16
17

6. The scheduling order filed May 19, 2011 is modified to extend the deadline for
filing dispositive motions from November 14, 2011 to March 16, 2012.

18

Plaintiff has submitted a declaration that makes the showing required by 28

19

U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.

20

DATED: October 3, 2011.

21
22
23
24
25

DAD:12
litt2490.dis

26
3