Franks v. Kelso et al

Filing 47

ORDER signed by Magistrate Judge Carolyn K. Delaney on 05/02/19 DENYING 35 Motion for Summary Judgment. Within 5 days, defendant shall submit to the court a copy of his responses to plaintiffs second request for production of documents. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TOM MARK FRANKS,

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No. 2:17-cv-1056 KJM CKD P

Plaintiff,
v.

ORDER

J. CLARK KELSO, et al.,
Defendants.

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Plaintiff is a California prisoner proceeding pro se with an action arising under 42 U.S.C.

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§ 1983. The remaining defendant, defendant Giddings, is a dentist at High Desert State Prison.

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Plaintiff has filed a motion to compel concerning defendant’s responses to plaintiff’s “second

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request for production of documents.” Defendant Giddings has opposed the motion. However,

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neither party submitted a copy of the responses which were provided to plaintiff by defendant as

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required under Local Rule 250.3(c), and the court requires a copy to resolve plaintiff’s motion.

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Good cause appearing, the court will order defendant to provide the court with a copy of his

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responses within five days.

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Also, defendant has filed a timely motion for summary judgment which was filed shortly

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after the court granted a motion to re-open discovery filed by plaintiff. Plaintiff has not yet

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opposed the motion and asks that he not be required to until his pending motion to compel is

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resolved. The court has reviewed the motion for summary judgment and it is not clear to the
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court whether plaintiff’s opposition to the motion depends in any material respect on the outcome

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of plaintiff’s motion to compel, but it may. Accordingly, in the interests of fairness and

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efficiency, the motion for summary judgment will be denied without prejudice. At some point

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after resolution of plaintiff’s motion to compel, and if still appropriate, the court will provide a

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deadline by which defendant will be permitted to renew his motion for summary judgment.

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Renewal may be made simply through a notice of renewal if it turns out that defendant does not

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wish to modify the pending motion.

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Accordingly, IT IS HERBY ORDERED that:

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1. Within five days, defendant shall submit to the court a copy of his responses to

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plaintiff’s “second request for production of documents.”
2. Defendant’s motion for summary judgment (ECF No. 35) is denied without prejudice.
Dated: May 2, 2019

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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frank1056.rtp

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