IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
October 7, 2011
RODNEY JEROME WOMACK, PLAINTIFF,
C. BAKEWELL ET AL., DEFENDANTS.
Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. On August 11, 2011, defendants filed a motion to dismiss the pending complaint on the grounds that plaintiff had failed to exhaust his administrative remedies prior to filing suit and failed to state a claim upon which relief can be granted. Plaintiff has not filed an opposition to the motion. Plaintiff has, however, filed two "discovery" motions as well as a motion to amend his complaint. Defendants have opposed plaintiff's motions.
As to plaintiff's "discovery" motions, plaintiff contends that he needs additional time to file his opposition to defendants' motion to dismiss because he is in the process of requesting "discovery" from the medical department at Folsom State Prison. Specifically, plaintiff feels he needs copies of his medical records to adequately respond to defendants' motion. Good cause appearing, the court will grant plaintiff's request for additional time to file an opposition to defendants' motion to dismiss. However, insofar as plaintiff is requesting that the court issue a discovery and scheduling order, plaintiff's request is premature. If the case survives defendants' motion to dismiss, defendants will file an answer, and thereafter the court will issue an order opening discovery and setting a schedule for this litigation. In the meantime, plaintiff is advised that under Title 15 of the California Code of Regulations § 3370(c), he is allowed to review his case records and unit health records in the presence of prison staff.
As to plaintiff's motion to amend, plaintiff contends that he would like to amend his complaint to include allegations regarding defendants' allege refusal to provide him with adequate pain medication following his ankle surgery. However, plaintiff has not submitted a proposed amended complaint with his motion to amend. Plaintiff is advised that as a litigant proceeding in forma pauperis, his pleadings are subject to evaluation by this court pursuant to the in forma pauperis statute. See 28 U.S.C. § 1915. Since plaintiff did not submit a proposed amended complaint, the court is unable to evaluate it. The court will therefore deny plaintiff's motion for leave to amend.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff's "discovery" motions (Doc. Nos. 20 & 21) are granted in part;
2. Within thirty days of the date of service of this order, plaintiff shall file an opposition to defendants' motion to dismiss; and
3. Plaintiff's motion to amend (Doc. No. 22) is denied.
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