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Gipbsin v. Kernan

May 4, 2010

CLARENCE A. GIPBSIN, PLAINTIFF,
v.
SCOTT KERNAN, ET AL., DEFENDANTS



ORDER

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. This order addresses defendants' December 23, 2009 request for an extension of time, plaintiff's December 28, 2009 request for entry of default, plaintiff's December 28, 2009 and January 11, 2010 motions for summary judgment, plaintiff's December 29, 2009 and January 11, 2010 motions to compel, defendants' January 27, 2010 motions to strike, plaintiff's January 7, 2010 and January 11, 2010 motions to compel the depositions of defendants, plaintiff's February 19, 2010 request for a pretrial conference, defendants' February 12, 2010 motion to compel and for sanctions, plaintiff's February 22, 2010 request for sanctions, and defendants' February 23, 2010 motion to withdraw their motion to compel interrogatory responses.

I. Plaintiff's Motion for Entry of Default*fn1

On December 28, 2009, plaintiff requested that the court enter default against defendant Ehle. Dckt. No. 160. The court dismissed defendant Ehle from this action on September 30, 2009. Dckt. No. 143. Plaintiff's motion is therefore denied, as Ehle has been relieved of any obligation to defend himself in this action.

II. Plaintiff's Motions to Compel

On December 29, 2009, plaintiff filed a motion to compel defendants to respond to plaintiff's first and second set of admissions and request for production of documents. Dckt. No. 162. He also requested an order requiring defendants to allow him to review his central and medical files. Id. On January 8, 2010, defendants opposed plaintiff's motion. Dckt. No. 165. Defendants assert that all but three of the requested discovery responses were served on plaintiff on December 23, 2009. Id. As to the three outstanding sets of discovery responses, defendants note that on December 23, 2009, they requested an extension of time until January 15, 2010, in which to serve those responses. Id.; see Dckt. No. 159. Good cause appearing, defendants are granted the requested extension of time, and plaintiff's motion to compel is denied as moot.

The court also denies plaintiff's request for an order directing defendants to grant plaintiff access to his medical and central files. As defendants point out, plaintiff's medical and central files are in the possession, custody and control of the California Department of Corrections and Rehabilitation and defendants should not be ordered to provide plaintiff access to documents that they do not maintain.*fn2 See Dckt. No. 165 at 2.

On January 11, 2010, plaintiff re-filed his December 29, 2009 motion to compel. Dckt. No. 166. Defendants move to strike the motion as duplicative. Dckt. No. 169. Although plaintiff attached additional exhibits to the January 11, 2010 motion, the motion itself is identical to the December 29, 2009 motion and is denied for the same reasons. Defendants' motion to strike is denied as moot.

III. Plaintiff's Motions for "Deposition Hearing"

On January 7, 2010 and January 11, 2010, plaintiff requested that the court order defendants to appear at High Desert State Prison so that plaintiff could take their depositions. Dckt. Nos. 164, 167. Rule 30 of the Federal Rules of Civil Procedure requires that a "party who wants to depose a person by oral questions must give reasonable written notice to every other party." Fed. R. Civ. P. 30(b)(1). "The party who notices the deposition must state in the notice the method for recording the testimony." Fed. R. Civ. P. 30(b)(3)(A). That party must also arrange for an officer to conduct the depositions. Fed. R. Civ. P. 30(b)(5)(A). Plaintiff does not indicate that he ever noticed defendants' depositions. Therefore, the court will not compel defendants' attendance at any deposition and denies plaintiff's motions.

IV. Plaintiff's Motions for Summary Judgment and a Pretrial Conference

On December 28, 2009, plaintiff filed a one-page motion for summary judgment on the ground that defendants did not dispute their liability in their earlier filed motion to dismiss. Dckt. No. 161. As defendants contend in their opposition, plaintiff's argument is without merit and his motion is procedurally deficient for failure to comply with Local Rule 260(a), which requires that every motion for summary judgment be accompanied by a statement of undisputed facts with specific references to any evidentiary documents relied upon in the motion. See Dckt. No. 163. Plaintiff's motion for summary judgment is therefore denied.

On January 11, 2010, plaintiff re-filed his December 28, 2009 motion for summary judgment. Dckt. No. 168. It is denied for the same reasons. Defendants' motion to strike the motion as duplicative is denied as moot. See Dckt. No. 170.

On February 19, 2010, plaintiff requested a pretrial conference. Dckt. No. 172. The request will be denied as unnecessary. Pursuant to the October 20, 2009 scheduling order, pretrial proceedings, if necessary, will be scheduled upon the ...


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