(PC) Smith v. Municipality of Fresno County et al

Filing 95

ORDER signed by Magistrate Judge Allison Claire on 5/12/2022 DENYING 81 motion for a settlement conference; 83 , 86 , and 89 motions to change venue; and 94 request for production of documents. (Perdue, C.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GARY PAUL SMITH,

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No. 2:21-cv-1992 KJM AC P

Plaintiff,
v.

ORDER

MUNICIPALITY OF FRESNO COUNTY,
et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se and in forma pauperis, seeks relief under 42

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U.S.C. § 1983. The action was referred to a United States Magistrate Judge pursuant to 28 U.S.C.

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§ 636(b)(1)(B) and Local Rule 302. Plaintiff has filed a motion for settlement (ECF No. 81),

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three motions to change venue (ECF Nos. 83, 86, 89), and a request for production of documents

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(ECF No. 94). For the reasons stated below, each of these motions will be denied.

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I.

BACKGROUND

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This case was filed in the Fresno Division of the Eastern District on May 14, 2019. ECF

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No. 1. On October 29, 2021, after four amended complaints, an appeal to the Ninth Circuit, a

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cancelled settlement conference and multiple filings by the parties, the action was transferred to

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the Sacramento Division on the grounds that “surviving claims in this case concern events arising

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within the Sacramento Division.” ECF No. 77 at 3.
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II.

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Plaintiff’s motion for settlement states in relevant part that plaintiff wishes to change the

MOTION FOR SETTLEMENT

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last settlement offer that he made. ECF No. 81. On August 4, 2021, while this case was pending

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in the Fresno Division, an early settlement conference was ordered. ECF No. 61. Plaintiff wrote

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to the court stating that an early settlement conference was “NOT happening” and that there

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would be “NO early settlement conference.” ECF No. 64 at 1, 3, 5 (letter docketed August 26,

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2021). In a second letter docketed the same day, plaintiff stated, “There’s to be NO early or late

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settlement conference. It’s what plaintiff is demanding….” ECF No. 65 at 4. These letters were

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construed as motions to cancel the early settlement conference, and granted as such. See ECF

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No. 67.
Plaintiff’s changed position regarding settlement does not support the scheduling of a

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settlement conference at this time. The parties are always free to communicate directly with each

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other about possible resolution of the case; plaintiff does not require leave of court to convey a

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settlement proposal to counsel for defendants. However, the court will not involve itself in

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settlement discussions at this time unless there is a joint request to schedule a settlement

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conference. Discovery is underway and set to close in July 2022, and dispositive motions are to

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be filed in September 2022. ECF No. 88 at 6. A settlement may be set in the court’s discretion or

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at the request of the parties in the future if it appears that the case will proceed toward trial. At

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this time, the motion will be denied.

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II.

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Plaintiff has filed three motions for a change of venue. ECF Nos. 83, 86, 89. At the core

MOTIONS TO CHANGE VENUE

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of each motion is plaintiff’s belief that he will not receive a fair trial in this court, or in this state

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for that matter. See ECF No. 83 at 2; ECF No, 86 at 2; ECF No. 89 at 1-3. In his most recently

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filed motion, plaintiff requests that venue in this matter be moved to Oregon. ECF No, 89 at 3.

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“A civil action may be brought in . . . a judicial district in which a substantial part of the

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events or omissions giving rise to the claim occurred.” 28 U.S.C. § 1391(b)(2). “[I]n the

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interests of justice, a district court may transfer any civil action to any other district or division

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where it might have been brought or to any district or division to which all parties have
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consented.” 28 U.S.C. § 1404(a).
As the previously assigned magistrate judge noted, defendants Bishop and Brockway – the

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only defendants who remain in this action – were employed at Mule Creek State Prison at the

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time of the incident giving rise to plaintiff’s claims. ECF No. 77 at 3. Mule Creek State Prison is

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located in Amador County, which is within the Sacramento Division of the Eastern District of

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California. See Local Rule 120(d). There is no basis for venue in Oregon, because the claims

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could not have been brough there. Nor have defendants consented to venue in Oregon or

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elsewhere outside the Eastern District. Nor has plaintiff identified facts which establish that the

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interests of justice support a change of venue. Because change of venue is not warranted under §

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1404(a), plaintiff’s motions must be denied.

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III. REQUEST FOR PRODUCTION OF DOCUMENTS

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On May 9, 2022, plaintiff filed a request for production of documents. ECF No. 94.

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Plaintiff asks defendants to produce various incident reports, medical records, timecards, and

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similar materials. Id. at 1. As plaintiff was informed in the operative discovery and scheduling

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order, discovery requests are not to be filed with the court. ECF No. 88 at 5; see also Local Rule

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250.3(c). Plaintiff should serve his discovery requests only on defendants, and not submit them to

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the court. If defendants fail to timely produce the requested materials, plaintiff may then file a

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motion compel production under Rule 37 of the Federal Rules of Civil Procedure. See Local Rule

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230(l) (motions in prisoner cases). As specified in the discovery and scheduling order, Local Rule

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251(motions dealing with discovery in non-prisoner cases) does not apply.

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CONCLUSION

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For the reasons explained above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for a settlement conference (ECF No. 81) is DENIED;

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2. Plaintiff’s motions to change venue (ECF Nos. 83, 86, 89) are DENIED; and

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3. Plaintiff’s request for production of documents (ECF No. 94) is DENIED.

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DATED: May 12, 2022

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