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Timothy Bertram v. C. Sizelove

June 8, 2012

TIMOTHY BERTRAM,
PLAINTIFF,
v.
C. SIZELOVE, ET AL.,
DEFENDANTS.



ORDER DENYING PLAINTIFF'S MOTION FOR IN CAMERA REVIEW, MOTION TO EXTEND DISCOVERY DEADLINE, AND MOTION FOR SUBPOENAS Docs. 59, 61, 63, 64, 66
ORDER GRANTING PLAINTIFF'S MOTION TO COMPEL, IN PART, AND DIRECTING DEFENDANTS TO SUPPLEMENT THEIR RESPONSES TO PLAINTIFF'S ORIGINAL DISCOVERY REQUESTS FROM AUGUST 2011 / Doc. 68

I. Procedural History

On April 5, 2010, Plaintiff, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. In his complaint, Plaintiff alleges that Defendants were deliberately indifferent to his medical condition; that they failed to provide him a bottom bunk; that on July 14, 2009, Plaintiff had a seizure and fell from his top bunk; and that he suffered from head, neck, and shoulder injuries. Pl. Compl. at 5-8, Doc. 1. On November 22, 2010, the Court dismissed certain claims and found a cognizable claims against Defendants C. Sizelove and J. Heinzler and two Doe Defendants ("Defendants") for Eighth Amendment deliberate indifference to medical needs. Doc. 13. On August 2, 2011, the Court issued a discovery and scheduling order, establishing a deadline of February 2, 2012 to amend pleadings, a discovery deadline of April 2, 2012, and a dispositive motion deadline of June 11, 2012. Doc. 36.

On February 6, 2012, Plaintiff filed a Motion for Extension of Time to Amend Pleadings. Doc. 56. On February 15, 2012, Plaintiff filed a Proposed First Amended Complaint. Doc. 58. On February 23, 2012, Plaintiff filed a motion for in camera review of an inmate appeal. Doc. 59. On March 14, 2012, Plaintiff filed a motion to extend discovery deadline. Doc. 61. On March 19, 2012, Defendants filed an opposition to Plaintiff's motion to amend pleadings, motion to extend discovery deadline, and motion for in camera review. Doc. 62. On March 23, 2012, Plaintiff filed a second motion to extend discovery deadline. Doc. 63. On March 21, 2012, Plaintiff filed a motion for subpoenas. Doc. 64. On March 30, 2012, Plaintiff filed a reply to Defendants' opposition to Plaintiff's motion to amend pleadings, motion to extend discovery deadline, and motion for in camera review. Doc. 65. On March 30, 2012, Plaintiff filed a motion for court intervention and request for subpoenas. Doc. 66. On April 11, 2012, the undersigned issued findings and recommendations to deny Plaintiff's motion to amend his complaint and to dismiss the Doe Defendants. Doc. 67. On April 23, 2012, Plaintiff filed a motion to compel. Doc. 68. On May 7, 2012, Plaintiff filed objections to the findings and recommendations. Doc. 69. On May 8, 2012, Defendants filed an opposition to Plaintiff's motion to compel. Doc. 70. On May 25, 2012, Plaintiff filed a reply to Defendants' opposition. Doc. 71. This matter is deem submitted pursuant to Local Rule 230(l).

II. Motion for In Camera Review

Plaintiff moves for an in camera review of one of his inmate appeals. Doc. 59. Plaintiff does not submit the inmate appeal, so it appears to the Court that Plaintiff seeks discovery of his inmate appeal. A motion for in camera review is not the proper procedure to obtain a copy of an inmate appeal. Plaintiff's motion is DENIED.

III. Motion to Extend Discovery Deadline

Plaintiff moves to extend the discovery deadline now that additional defendants have been identified and to "ascertain his position in this case." Docs. 61, 63. The undersigned has issued findings and recommendations to deny Plaintiff's motion to amend his complaint and to dismiss the Doe Defendants. Doc. 67. Given that resolution of the pending findings and recommendations may render any need for further discovery as unnecessary, Plaintiff's motion to extend the discovery deadline is DENIED, without prejudice.*fn1

IV. Plaintiff's Motion to Compel

Plaintiff moves to compel discovery responses from Defendants. Doc. 68. Defendants did not respond to the merits of Plaintiff's motion but simply argued that it was untimely. Doc. 70. However, Plaintiff contends that he has never received complete and supplemental responses to his original discovery requests from August 2011. Mot. Compel at 3-4, Doc. 68. Defendants did not respond to this argument. Thus, the Court has no record that Defendants supplemented their discovery responses after Plaintiff signed a release of his records.

A party who has made a disclosure under Rule 26(a)--or who has responded to an interrogatory, request for production, or request for admission--must supplement or correct its disclosure or response . . . in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.

Fed. R. Civ. P. 26(e)(A). Plaintiff's initial discovery requests in August 2011 were timely, and after Plaintiff signed a release of his records in February 2012, defense counsel was able, and had a duty, to supplement the discovery. As for Plaintiff's requests submitted February 28, 2012, these were sent after the deadline for discovery requests had passed.*fn2 The Court will not grant Plaintiff's motion to compel untimely discovery. Accordingly, Plaintiff's motion to compel discovery is GRANTED, in part, as to Plaintiff's original requests from August 2011.

V. Plaintiff's Motion for Subpoenas of Non-Party Individuals

Finally, Plaintiff moves for subpoenas from non-party ...


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