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Graves v. Williams

June 29, 2009

PETER DALE GRAVES, PLAINTIFF,
v.
B. WILLIAMS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER

Plaintiff, a state prisoner proceeding pro se, brings this action for relief pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's motion for reconsideration (Doc. 160) of the Magistrate Judge's May 5, 2009, order.

Pursuant to Eastern District of California Local Rule 72-303(f), a magistrate judge's order shall be upheld unless "clearly erroneous or contrary to law." Upon review of the entire file, the court finds that it does not appear that the magistrate judge's ruling was clearly erroneous or contrary to law.

The Magistrate Judge sustained Defendants' objections to some of Plaintiff's deposition questions to Dr. Allen. Those objections were sustained on the basis that Plaintiff is deposing Dr. Allen as his treating physician, not as an expert witness. Plaintiff objects to characterizing Dr. Allen as a percipient witness instead of an expert witness. He states that Dr. Allen is in fact his expert witness. Based on Defendants' objections to Plaintiff's deposition questions, it appears to the court that Plaintiff has not complied with Rule 26 designating Dr Allen as an expert witness. See Fed. R. Civ. Proc. 26(a)(2). As such, the Magistrate Judge's order was not clearly erroneous, and will therefore be affirmed. However, this is without prejudice to Plaintiff ability to renew his objections upon a showing that he has complied with Rule 26(a)(2).

Accordingly, IT IS HEREBY ORDERED that:

1. The motion for reconsideration (Doc. 160) is denied;

2. The Magistrate Judge's May 5, 2009, order is affirmed; and

3. Plaintiff may renew his request upon showing compliance with Rule 26(a)(2).

20090629

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