Saldana v. Spearman et al

Filing 60

ORDER signed by Magistrate Judge Allison Claire on 03/29/21 GRANTING 58 Motion for Extension of time. Plaintiff shall have 30 days from the service of this order to file his opposition to defendants motion for summary judgment; DENYING 59 Motion for Reconsideration, Motion for order directing defendant to provide a copy of his deposition and motion for appointment of counsel. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SAMUEL SALDANA,

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Plaintiff,

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No. 2:18-cv-0319 AC P

v.

ORDER

M.E. SPEARMAN, et al.,

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Defendants.

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Plaintiff, a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C.

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§ 1983, has filed a motion for an extension of time to respond to defendant’s motion for summary

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judgment, ECF No. 58, and a motion for reconsideration, ECF No. 59.
Plaintiff requests an additional thirty days to respond to defendant’s motion for summary

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judgment, on the stated ground that defendant did not attach a complete copy of plaintiff’s

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deposition to the motion as required by court rules. ECF No. 58. The court will grant plaintiff’s

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request for an extension. However, plaintiff is advised that the Local Rules provide that only the

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portions of the deposition upon which defendants rely are to be filed as exhibits. L.R. 133(j).

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Furthermore, although defendant was required to provide a courtesy copy of the entire deposition

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to the court, which he did, there was no obligation for him to provide a complete copy to

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plaintiff.1 Id.

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Plaintiff has also filed a motion for reconsideration in which he requests the undersigned

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reconsider the denial of his motion to compel. ECF No. 59. By order filed January 28, 2021, the

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undersigned denied plaintiff’s motion to compel production of video interviews of two inmate-

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witnesses. ECF No. 55. The motion was denied on the ground that it was filed over five months

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after the deadline for filing motions to compel, with no explanation for the untimeliness. Id. at 1.

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The court further noted that even if the motion were timely, “it is clear from the attachments to

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the motion that counsel advised plaintiff that there were no videos responsive to his request, ECF

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No. 54 at 6, 83, and the court cannot order defendant to produce something that does not exist.”

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Id. Plaintiff requests reconsideration on the ground that he wants to subpoena both inmates and

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the lieutenant who conducted the interviews to testify that the interviews were video recorded.

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ECF No. 59 at 1. He also requests that defendant be required to provide a complete copy of

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plaintiff’s deposition and that counsel be appointed to assist him in subpoenaing the witnesses.

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Id. at 2-3.

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Local Rule 230(j) requires that a motion for reconsideration state “what new or different

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facts or circumstances are claimed to exist which did not exist or were not shown upon such prior

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motion, or what other grounds exist for the motion; and . . . why the facts or circumstances were

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not shown at the time of the prior motion.” L.R. 230(j)(3)-(4). In seeking reconsideration

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plaintiff fails to identify any new or different facts or circumstances, and does not explain why his

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motion to compel was late. Furthermore, even if the court assumes that plaintiff’s witnesses

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testified that the interviews were video recorded, that does not mean that those recordings still

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exist. The motion for reconsideration will therefore be denied. With respect to plaintiff’s request

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for a copy of his deposition, as explained above, defendant was not required to provide plaintiff

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with a copy of plaintiff’s deposition, and the court will not order him to do so. The court will also

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Local Rule 133(j) does require a copy of the deposition be sent to all other parties if the court’s
courtesy copy is transmitted by email. However, defendant submitted a paper courtesy copy to
the court.
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deny the request for counsel because there is no need to subpoena the inmates and lieutenant to

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testify that the interviews were video recorded.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for an extension of time, ECF No. 58, is GRANTED. Plaintiff shall

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have thirty days from the service of this order to file his opposition to defendant’s motion for

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summary judgment.

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2. Plaintiff’s motion for reconsideration, ECF No. 59, is DENIED.

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3. Plaintiff’s motion for an order directing defendant to provide a copy of his deposition,

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ECF No. 59, is DENIED.
4. Plaintiff’s motion for appointment of counsel, ECF No. 59, is DENIED.
DATED: March 29, 2021

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