UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
February 18, 2010
DONALD JEFFERY, PLAINTIFF,
M. T. A. BENNGE, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER STRIKING DUPLICATIVE MOTION TO COMPEL AND FOR SANCTIONS, AND STRIKING PITCHESS MOTION (Docs. 91-94)
This is a civil rights action filed pursuant to 42 U.S.C. § 1983 by Plaintiff Donald Jeffery, a state prisoner proceeding pro se and in forma pauperis. Plaintiff filed this action on June 15, 2006, and it is proceeding on Plaintiff's third amended complaint against Defendants Cantu and Knight for use of excessive force, in violation of the Eighth Amendment.
On February 4, 2010, the Court issued an order denying Plaintiff's motion to compel and for sanctions filed on October 13, 2009, and issued an amended scheduling order. On February 11, 2010, Plaintiff filed another motion to compel and for sanctions which is virtually identical to the motion to compel and for sanctions filed on October 13, 2009. The February 11 motion was dated on February 2, 2010, prior to the issuance of the ruling on the October 13 motion to compel.
It is inappropriate for Plaintiff to file a second motion raising issues duplicative of those at issue in a pending motion. Plaintiff is required to await a ruling on pending motions. If Plaintiff again files a motion seeking relief identical to that being sought in a pending motion, Plaintiff will be subject to sanctions for abuse of process. Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S.Ct. 2123 (1991). The duplicative motion to compel and for sanctions filed on February 11, 2010, shall be stricken from the record.
Plaintiff also filed a Pitchess motion on February 11, 2010. A Pitchess motion relates to criminal proceedings and is misplaced in this federal civil action. See People v. Mooc, 26 Cal.4th 1216, 1219-20 (2001) (a Pitchess motion allows a criminal defendant to compel discovery of evidence from arresting officer's personnel file). Plaintiff must seek discovery in compliance with the Federal Rule of Civil Procedure 34, which requires Plaintiff to serve Defendants with a request for the production of documents. If Defendants object to the request and Plaintiff believes the documents are discoverable, Plaintiff's recourse is to file a motion to compel. Plaintiff may not file a request for documents from Defendants' personnel files directly with the Court, and his inappropriate Pitchess motion shall be stricken from the record.
Based on the foregoing, Plaintiff's motion to compel and for sanctions, and Pitchess motion, filed on February 11, 2010, are HEREBY ORDERED STRICKEN FROM THE RECORD.
IT IS SO ORDERED.
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