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Leroy Arther andreozzi v. California Department of

March 6, 2012

LEROY ARTHER ANDREOZZI,
PLAINTIFF,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendant's motion for summary judgment (Doc. 38). Plaintiff filed an opposition to the motion, and defendant filed a reply. Plaintiff has also filed a motion for summary judgment (Doc. 45) which the defendant opposes as untimely (Doc. 46).

I. BACKGROUND

A. Plaintiff's Allegations

This case proceeds on plaintiff's amended complaint (Doc. 14). Plaintiff alleges defendant Lesane confiscated his medication, an inhaler for asthma and high blood pressure medication, during a sweep of the cells, and refused to allow him medical treatment during an asthma or COPD attack

B. Undisputed Facts

Defendant submits to the court that plaintiff failed to respond to the requests for admissions propounded on plaintiff, and thus by operation of law those requests are deemed admitted. Defendant therefore argues there are no disputed facts. Defendant submits that on February 9, 2001, requests for admissions were propounded on plaintiff. Those requests instructed plaintiff to respond "[p]ursuant to Rule 36 of the Federal Rules of Civil Procedure." Defendant further submits that on May 12, 2011, counsel sent plaintiff a letter informing him that he missed the deadline to respond to the discovery requests, that the requests for admissions were thus deemed admitted, and requesting full and complete responses. In support of the pending motion for summary judgment, counsel submits a declaration that as of the filing date no response had been received from plaintiff for any of the discovery requests, including the requests for admissions.

Attached to counsel's supporting declaration are the requests for admissions propounded on plaintiff. Those requests for admissions include the following:

1. LESANE did not violate your Eighth Amendment rights under the United States Constitution;

2. LESANE was not deliberately indifferent to your medical needs;

3. LESANE did not violate any of your constitutional rights;

4. LEASE did not deny you medication;

5. LESANE did not confiscate your medication;

6. LESANE did not confiscate your inhaler;

7. LESANE did not confiscate your hearing aides;

8. LESANE did not deny you medical ...


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