Asberry v. Cate et al

Filing 160

ORDER signed by Magistrate Judge Kendall J. Newman on 5/27/2014 DENYING plaintiff's 155 motion to compel. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TONY ASBERRY,

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No. 2: 11-cv-2462 KJM KJN P

Plaintiff,
v.

ORDER

MATTHEW CATE, et al.,

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Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. Pending before the court is plaintiff’s motion to compel filed April 28,

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2014. (ECF No. 155.) For the following reasons, this motion is denied.

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On March 31, 2014, the undersigned issued an order (ECF No. 151) addressing plaintiff’s

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motion to compel filed February 7, 2014 (ECF No. 142). In the motion to compel, plaintiff

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requested permission to review his medical file. In the March 31, 2014 order, the undersigned

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observed that plaintiff’s previous requests for Olsen reviews were denied because plaintiff did not

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follow the proper procedures for requesting the reviews. (ECF No. 151 at 3.) In response to the

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motion to compel, defendants provided plaintiff with the proper forms for requesting Olsen

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reviews. (Id. at 4.) Because defendants provided plaintiff with the proper forms, the undersigned

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denied plaintiff’s motion for a court order directing prison officials to provide him with an Olsen

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review. (Id.)
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In the pending motion to compel, plaintiff alleges that prison officials failed to provide

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him with any x-rays of his lower back in their response to his request for an Olsen review, which

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plaintiff claims exist.
In their response to plaintiff’s motion, defendants provide the declaration of A. Martinez,

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Health Record Technician II Supervisor in the Medical Records Department at Richard J.

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Donavan Correctional Facility (“RJDCF”).1 (ECF No. 157-1 at 1.) A. Martinez states that the

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chart review records shows that on April 11, 2014, plaintiff received 30 copies of MRI documents

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from his medical records, as he requested. (Id.) The chart review records also shows that on

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April 24, 2014, plaintiff received 4 copies of x-ray documents concerning his lower back. (Id.)
Because plaintiff has received the x-rays of his lower back, plaintiff’s motion to compel is

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denied as moot.
Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion to compel (ECF No. 155)

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is denied.

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DATED: May 27, 2014

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Defendants also argue that the pending motion to compel is not timely because it was filed
after the February 20, 2014 discovery deadline. The undersigned need not reach this argument
because plaintiff received the requested x-rays.
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