Perdomo v. Plumber

Filing 55

ORDER DENYING MOTION TO COMPEL AND FOR SANCTIONS AS MOOT by Judge Beth Labson Freeman. Denying 51 Motion. (tshS, COURT STAFF) (Filed on 8/24/2020)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CARLOS PERDOMO,
Plaintiff,
v.

United States District Court
Northern District of California

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Case No. 17-06962 BLF (PR)
ORDER DENYING MOTION TO
COMPEL AND FOR SANCTIONS
AS MOOT

WARDEN MUNTEZ, et al.,
Defendants.
(Docket No. 51)

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Plaintiff, a state prisoner proceeding pro se, filed a civil rights action pursuant to 42

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U.S.C. § 1983 against prison officials at Salinas Valley State Prison (“SVSP”). Dkt. No. 1.

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The amended complaint is the operative complaint in this action. Dkt. No. 23-1. The

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Court found the amended complaint stated a cognizable claim under the Eighth

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Amendment against Warden Muniz, Chief Deputy Warden R. Binkele, and Correctional

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Administrator E. Borla, and ordered Defendants to file a motion for summary judgment or

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other dispositive motion. Dkt. No. 26. Defendants filed a motion for summary judgment,

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Dkt. No. 42, which became fully briefed on April 14, 2020. Dkt. Nos. 47, 50.

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On February 20, 2020, Plaintiff propounded discovery relevant to the issues raised

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in the Motion for Summary Judgment. Dkt. Nos. 45, 46. Although the responses were not

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due until after Plaintiff’s opposition was filed, Plaintiff later filed a motion for compliance

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of discovery and for sanctions in the form of outright dismissal of Defendants’ summary

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judgment motion. Dkt. No. 51. Plaintiff claims that he and Defendants had agreed to a

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new discovery response deadline of April 22, 2020, as memorialized by Defendants’ letter

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dated March 27, 2020. Id. at 5. Plaintiff asserts that rather than comply with discovery,

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Defendants filed a reply to their summary judgment motion on April 13, 2020, thereby

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“completely abandon[ing] the production of discovery.” Id. at 1. It appears that

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Defendants responded to all outstanding discovery on April 22, 2020. Hasan Decl. ¶ 22,

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Ex. B. Plaintiff acknowledges that he received the responses but claims that he had

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inadequate time to review the materials in order to oppose the summary judgment motion.

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Dkt. No. 53.

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The Court has granted in part and denied in part Defendants’ summary judgment in
a separate order and referred the matter to settlement proceedings. Accordingly, Plaintiff’s

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United States District Court
Northern District of California

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motion is DENIED as moot.

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However, Plaintiff is advised that he may continue to conduct discovery to obtain

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the names of “Plumber(s) Doe 1-5” who were dismissed without prejudice at the outset of

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this action. Dkt. No. 26 at 3. If he is able to identify these unknown defendants, he may

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motion the Court for leave to amend to name them and issue summons upon them. See

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Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980) (plaintiff should be given an

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opportunity through discovery to identify the unknown defendants unless it is clear that

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discovery would not uncover their identifies or that the complaint should be dismissed on

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other grounds); also Brass v. County of Los Angeles, 328 F.3d 1192, 1195-98 (9th Cir.

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2003) (district court has discretion to permit plaintiff to substitute named individuals for

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Doe defendants where he did not seek leave to amend to do so).

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This order terminates Docket No. 51.

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IT IS SO ORDERED.

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Dated: _August 24, 2020_________

________________________
BETH LABSON FREEMAN
United States District Judge

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Order Denying Motion as Moot
PRO-SE\BLF\CR.17\06962Perdomo_deny.mot.to.compel(moot)

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