Estrada v. Sayre

Filing 68

ORDER by Judge Lucy H. Koh denying 41 Motion for Reconsideration ; granting 61 Motion for Extension of Time to File (Attachments: # 1 Certificate/Proof of Service) (mpb, COURT STAFF) (Filed on 12/5/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JAIME IGNACIO ESTRADA,

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Plaintiff,
v.
MICHAEL SAYRE and C. MALOCLINES,

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Defendants.
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No. C 12-0592 LHK (PR)
ORDER DENYING MOTION
FOR RECONSIDERATION;
DIRECTING DEFENDANTS TO
RESPOND; GRANTING
MOTION FOR EXTENSION OF
TIME
(Docket Nos. 41, 61)

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Plaintiff, a California state prisoner proceeding pro se, filed an amended civil rights

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complaint (“AC”) pursuant to 42 U.S.C. § 1983. After granting in part and denying in part

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defendants’ motion to dismiss, plaintiff’s remaining claims are that defendants were deliberately

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indifferent to his serious medical needs (Claims 1 and 3), and defendant Malo-Clines retaliated

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against plaintiff for filing a federal civil lawsuit (Claim 5). Defendants have filed a motion for

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summary judgment. Plaintiff has filed a motion for reconsideration after the court denied

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plaintiff’s motion to file a second amended complaint. Defendants have filed an opposition.

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Plaintiff has also filed a motion to compel; a motion to stay proceedings and an order allowing

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plaintiff to possess a copy of his deposition transcript; and a motion for an extension of time to

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file an opposition to defendants’ motion for summary judgment. For the reasons stated below,

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plaintiff’s motion for reconsideration is DENIED, defendants are directed to file a response to

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Order Denying Motion for Reconsideration; Directing Defendants to Respond; Granting Motion for Extension of
Time
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plaintiff’s motion to compel and request for a copy of his deposition transcript, and plaintiff’s

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motion for an extension of time to file an opposition to defendants’ motion for summary

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judgment is GRANTED.

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I.

Motion for Reconsideration

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On June 17, 2013, plaintiff filed a motion for leave to file a second amended complaint to

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add new defendants. Plaintiff stated that he wished to add defense counsel and two John Does to

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the lawsuit. Specifically, plaintiff asserted that defense counsel conspired with prison officials to

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retaliate against plaintiff for the purpose of intimidating plaintiff to agree to stay discovery in a

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previous lawsuit that plaintiff had filed. The court denied plaintiff’s motion, reasoning that: (1)

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plaintiff had not demonstrated that the decision to stay discovery was “protected conduct”

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sufficient to support a retaliation claim; (2) it would have to dismiss John Doe #1 and John Doe

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#2 because the use of “John Doe” to identify a defendant is not favored in the Ninth Circuit; and

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(3) plaintiff made conclusory statements and assumptions that defense counsel conspired with

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John Does to retaliate against plaintiff, which was insufficient to state a cognizable claim for

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relief.

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On August 23, 2013, plaintiff filed a motion for reconsideration. Rule 60(b) provides a

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mechanism for parties to seek relief from a judgment when “it is no longer equitable that the

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judgment should have prospective application,” or when there is any other reason justifying

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relief from judgment. Jeff D. v. Kempthorne, 365 F.3d 844, 853-54 (9th Cir. 2004) (quoting Fed.

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R. Civ. P. 60(b)). Rule 60(b) provides for reconsideration only upon a showing of: (1) mistake,

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inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due

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diligence could not have been discovered before the court’s decision; (3) fraud by the adverse

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party; (4) the judgment is void; (5) the judgment has been satisfied; or (6) any other reason

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justifying relief. Fed. R. Civ. P. 60(b); School Dist. 1J v. ACandS Inc., 5 F.3d 1255, 1263 (9th

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Cir. 1993).

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Plaintiff argues that he has sufficiently asserted a “protected conduct,” and that the court
should liberally construe his claim that defense counsel conspired with John Does to retaliate

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Order Denying Motion for Reconsideration; Directing Defendants to Respond; Granting Motion for Extension of
Time
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against him. After consideration of defendants’ opposition and plaintiff’s arguments, plaintiff

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has not shown that he should receive reconsideration based on any of the factors listed in Rule

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60(b). The motion for reconsideration is DENIED.

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II.

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Motion to Compel and Motion to Stay Proceedings
Plaintiff asserts that he has requested on several occasions that defendants provide a copy

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of a medical memorandum dated March 24, 2008, authored by defendant Dr. Sayre at Pelican

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Bay State Prison. Plaintiff argues that the memorandum concerned pain medication and would

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support plaintiff’s claim in this action. Plaintiff further asserts that defendants have failed to be

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forthcoming regarding the memorandum’s existence. Plaintiff has also filed a motion to stay the

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proceedings, asserting that he has not been able to complete discovery due to defendants’ failure

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to produce that memorandum, and that defendants are preventing him from possessing a copy of

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plaintiff’s deposition transcript.

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Defendants are ordered to respond to plaintiff’s motions no later than twenty-eight (28)

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days from the filing date of this order. Plaintiff shall file any reply within fourteen (14) days

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thereafter.

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III.

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Motion for Extension of Time
Plaintiff’s motion for an extension of time in which to file an opposition to defendants’

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motion for summary judgment is GRANTED. The court shall set a date for plaintiff’s opposition

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to be filed once it has disposed of plaintiff’s motion to compel and motion to stay proceedings.

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IT IS SO ORDERED.
DATED: 12/4/13
LUCY H. KOH
United States District Judge

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Order Granting in Part and Denying in Part Defendant’s Motion to Dismiss; Addressing Pending Motions; Further
Scheduling
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