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Aurelio Martin Sepulveda v. Jeanne Woodford

November 2, 2011

AURELIO MARTIN SEPULVEDA,
PLAINTIFF,
v.
JEANNE WOODFORD, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DENYING PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO SERVE DISCOVERY AS MOOT (DOC. 55)

ORDER GRANTING PLAINTIFF'S MOTION TO COMPEL IN PART (DOC. 57)

RESPONSE DUE WITHIN THIRTY DAYS

Plaintiff Aurelio M. Sepulveda ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's second amended complaint against Defendant Shu-Pin Wu ("Defendant") for deliberate indifference to a serious medical need in violation of the Eighth Amendment and retaliation in violation of the First Amendment.

Pending before the Court is: 1) Plaintiff's motion for extension of time to serve Defendant with discovery, filed July 5, 2011; and 2) Plaintiff's motion to compel, filed July 22, 2011. Docs. 55, 57. Defendant filed an opposition on August 8, 2011. Doc. 58. Plaintiff filed a reply on August 29, 2011. Doc. 59. The matter is submitted pursuant to Local Rule 230(l).

I. Motion For Extension Of Time

On July 5, 2011, Plaintiff filed a motion for extension of time to serve Defendant with discovery requests. Plaintiff moved for an extension to the discovery cut-off date. Plaintiff's motion is moot. The Court previously granted Plaintiff's prior motion for modification of the discovery cut-off date to September 12, 2011. Accordingly, Plaintiff's motion for extension of time, filed July 5, 2011, is denied as moot.

II. Motion To Compel

Plaintiff moves to compel the production of the following documents: 1) Plaintiff's medical records from the relevant time periods from consultations outside of prison, 2) any administrative appeals or complaint filed against Defendant Wu; 3) a March 22, 2004 memorandum authored by chief psychiatrist J. Pitts regarding the prescription of neurontin. Pl.'s Mot. Compel 6-9.

A. Request No. 1

Plaintiff requests documents from UCSF Medical Center, San Joaquin Community Hospital, and the Riverside County Regional Medical Center. Id. at 6. Defendant has subpoenaed these documents, and concedes possession.*fn1 Def.'s Opp'n 2. Defendant does not dispute the relevance of these documents. However, Defendant argues that Plaintiff should be required to pay for copies. Id. Additionally, Defendant contends that Plaintiff moves to compel discovery requests before the time allotted to respond had expired, rendering Plaintiff's motion to compel premature. Id. at 3. Plaintiff contends that he is entitled to these documents because they are relevant and he cannot afford to pay for copies. Pl.'s Reply, Doc. 59.

Plaintiff contends that he served his discovery requests on June 28, 2011. Pl.'s Mot. Compel 4. Pursuant to the Court's Discovery and Scheduling Order, the party responding to discovery requests is granted forty-five days in which to serve its response. Order, Doc. 42. Thus, for discovery requests served on June 28, 2011, the responding party would have up to August 12, 2011 to serve a response. Plaintiff's motion to compel, filed July 22, 2011, is premature.

The Court will nonetheless consider Plaintiff's motion. On October 14, 2011, Plaintiff filed a motion for extension of time to file an opposition to Defendant's motion for summary judgment. Pl.'s Mot., Doc. 63. In that motion, Plaintiff contends that he requires this discovery in order to properly prepare his opposition. Mot. 2. Summary judgment is disfavored where, as here, relevant evidence remains to be discovered. Jones v. Blanas, 393 F.3d 918, 930 (9th Cir. 2004). The Court will consider the merits of Plaintiff's motion.

The remaining dispute is whether Plaintiff is required to pay for copies of Defendant's documents subpoenaed from the three outside centers. Requiring the requesting party to pay for costs of copying has been upheld by many courts. See, e.g., Mezu v. Morgan State Univ., 269 F.R.D. 565, 575 (D. Md. 2010); Clever View Investments, Ltd. v. Oshatz, 233 F.R.D. 393, 394 (S.D.N.Y. 2006); Monarch Ins. Co. v. Spach, 281 F.2d 401, 413 n.30 (5th ...


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