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Avery v. Pool

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


June 14, 2010

KYLE AVERY, PLAINTIFF,
v.
K. POOL, ET AL., DEFENDANTS.

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

ORDER

Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Discovery closed in this case on April 16, 2010 and defendant timely filed a motion for summary judgment on June 9, 2010. While discovery was open, plaintiff filed two motions to extend discovery which the court denied as plaintiff had not provided enough support on why discovery needed to be extended or what documents he sought to obtain. On May 25, 2010, plaintiff filed a motion (Doc. 25) for court ordered subpoenas to obtain documents allegedly not in possession of the sole defendant*fn1 in this case and plaintiff provided sufficient detail for the documents he sought to obtain.*fn2

After reviewing plaintiff's request, and mindful of plaintiff's pro se status, the court construes the instant motion as a motion to compel, that will be deemed timely filed. Based on plaintiff's motion it appears that defendant Pool did not provide the requested documents stating they were not in his possession. Plaintiff sets forth 5 different document requests. The court notes that most of plaintiff's requests appear reasonable and rather routine as they are quite specific and related to this case. Moreover, plaintiff requests various documents related to his inmate appeals. The defendant in this case is the appeals coordinator at the facility where plaintiff is incarcerated, so perhaps while not specifically in his possession, many of these documents may be easily accessible to defendant. In addition, the defendant is being sued in his individual and official capacity.

Thus, the court will direct defendant Pool to respond in fourteen days to plaintiff's request in his May 25, 2010 motion, that the court construes as a motion to compel production of the documents in pages six to eight of that motion.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion to dismiss O'Brian (Doc. 24) is granted, and O'Brian is dismissed from this action.

2. Within fourteen days, defendant Pool shall respond to what the court has construed as plaintiff's motion to compel the documents set forth in his May 25, 2010 motion.


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