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Anaya v. Campbell

August 3, 2009

RICHARD ERNEST ANAYA, PLAINTIFF,
v.
ROSEANNE CAMPBELL, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court are plaintiff's motions to compel filed June 1, 2009. See court file docs. # 178, 179. On June 26, 2009, defendant Cullen filed a response to motion no. 179. See court file doc. # 184. On July 22, 2009, defendant Cullen filed a (amended) response to motion no. 178. See court file doc. # 189. On July 18, 2009, defendants Smith, et al. filed a response to motion no. 179. See court file doc. # 182. On July 18, 2009, defendants Smith et al. filed a response to motion no. 178. See court file doc. # 183.

For the following reasons, plaintiff's motions to compel are denied. Motion to Compel No. 179

In no. 179, plaintiff seeks an order "compelling" defendants to answer depositions by written questions. Plaintiff has not yet served defendants with these questions but seeks an order requiring defendants to answer them.

In the original scheduling order filed November 10, 2008, the court ordered that the parties could conduct discovery until March 20, 2009. The court ordered that any motions to compel should be filed by that date and all requests for discovery were to be served no later than sixty days prior to that date. On March 13, 2009, the court modified the scheduling order by extending the discovery cut-off date to May 20, 2009. On April 23, 2009, the court granted plaintiff an extension of time to respond to defendants' interrogatories. The court also granted defendants an extension of time to conduct plaintiff's deposition. In the April 23, 2009, order, the court did not otherwise extend the May 20, 2009, discovery cut-off date.

Plaintiff's June 1, 2009, motion to "compel" defendants to answer depositions by written questions is untimely because it was not served sixty days prior to May 20, 2009. Accordingly, this motion to compel is denied as untimely.

Motion to Compel No. 178

In this motion, plaintiff seeks further responses to several interrogatories. Defendants Smith et al. argue that plaintiff's motion to compel is untimely because it was not filed by May 20, 2009. Motion to compel no. 178 and motion to compel no. 179 were signed by plaintiff on May 20, 2009. Although motion to compel no. 178 contains no proof of service, the proof of service attached to motion to compel no. 179 states that it was mailed on May 20, 2009. Because both motions were actually filed in the court on June 1, 2009, the court will give plaintiff the benefit of the mailbox rule and find that he mailed motion to compel no. 178 on May 20, 2009. Accordingly, the motion is timely.

Turning to the merits of the motion to compel, defendants Smith et al. argue that the at-issue interrogatories are improper because they are not addressed to any particular defendant. Liberally construing the interrogatories, the court finds that they are addressed to each defendant individually.

Interrogatory No. 1

Interrogatory no. 1 states, "On or about March 2008 High Desert State Prison took a MRI of plaintiff's lower back and right knee, plaintiff demands answers or prognosis of MRI as to what it revealed, and the recommendations. Please disclose request for admission."

Defendants Smith et al. initially argued that this interrogatory was unintelligible, not a proper interrogatory, and not directed to a specific defendant. Without waiving objections, defendants Smith, et al. stated that there were records of an MRI taken on June 4, 2008, and attached them to their response. Plaintiff argues that this response is inadequate because the MRI report is incomplete. Plaintiff also argued that the MRI is proof that plaintiff was a candidate for ADA accommodations.

Defendants' initial objections to the interrogatory have merit. In addition, plaintiff has failed to make a proper showing that pages of the June 4, 2008, MRI are missing. No further response by defendants Smith et al. is required.

Defendant Cullen, a surgeon at UC Davis Hospital, states that none of the information sought in interrogatory no. 1 is available to him. This objection has merit. No further response by defendant Cullen is required.

Interrogatory No. 2

Interrogatory no. 2 states, "Mule Creek State Prison Appeal response MCSP-A-05-01391 Complaint Page 17 through 23. Has denied (ADA) accommodations, walking cane, crutches, wheel chair, grab bars, single cell. Brett Williams M.D. Smith M.D. Campbell, Suvia, Gravinis, Tedder, also have denied MCSP 06-00012 Appeal Complaint 35 to 38.] The Plaintiff's condition has not changed, so ...


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