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Fenstermacher v. Moreno

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


September 15, 2010

TIMOTHY FENSTERMACHER, PLAINTIFF,
v.
SAMUEL MORENO, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER DENYING MOTIONS(Docs. 32, 33, 34) and ORDER DIRECTING DEFENDANTS TO FILE OPPOSITION OR STATEMENT OF NON-OPPOSITION TO PLAINTIFF'S JULY 19, 2010 MOTION

Plaintiff Timothy Fenstermacher ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Before the Court are four motions from Plaintiff.

On March 2, 2010, Plaintiff filed a motion entitled "Formal Request for Service of Summons and Complaint by U.S. Marshal." (Doc. #32.) Plaintiff requests the Court to order the U.S. Marshall to serve Defendants Samuel Moreno and Ruben Robles ("Defendants") with a summons and a copy of Plaintiff's complaint. Plaintiff also filed a motion requesting an extension of time to effect service of process on Defendants. (Doc. #33.) On March 24, 2010, Plaintiff filed a motion requesting the Court to order U.S. Marshals to effect personal service on Defendants. (Doc. #34.) Since Plaintiff filed these motions, both Defendants have been served and made appearances in this action. Plaintiff's motions will be denied as moot.

On July 19, 2010, Plaintiff filed a motion requesting the Court to order California Department of Corrections and Rehabilitation officials to disclose the personnel records of Defendants Moreno and Robles. (Doc. #44.) Plaintiff claims that he attempted to obtain, through discovery, various documents and videotapes concerning the excessive use of force alleged in his complaint. Plaintiff further alleges that Defendants refused to produce the documents and videotapes, claiming that they are privileged.

Defendants have not filed an opposition to Plaintiff's motion. The Court will construe Plaintiff's motion as a motion to compel and will order Defendants to file an opposition or statement of non-opposition to Plaintiff's motion to compel within thirty (30) days of the date of service of this order.

Accordingly, it is HEREBY ORDERED that:

1. Plaintiff's March 2, 2010 motion requesting service is DENIED as moot;

2. Plaintiff's March 2, 2010 motion requesting an extension of time is DENIED as moot;

3. Plaintiff's March 24, 2010 motion requesting service is DENIED as moot; and 4. Defendants shall construe Plaintiff's July 19, 2010 motion as a motion to compel and file an opposition or statement of non-opposition to the motion within thirty (30) days of the date of service of this order.

IT IS SO ORDERED.

20100915

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