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Gary L. Harpool v. M. Beyer

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


August 7, 2012

GARY L. HARPOOL, PLAINTIFF,
v.
M. BEYER, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Plaintiff is a prisoner proceeding pro se who seeks relief pursuant to 42 U.S.C. § 1983. Findings and recommendations have been pending since July 6, 2006, recommending that defendants' motion for summary judgment be granted in part and denied in part. Although plaintiff had been previously informed of the requirements to oppose summary judgment pursuant to Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998), and the court had found plaintiff's opposition sufficient and well reasoned, in light of Woods v. Carey, --- F.3d ----, 2012 WL 2626912 (9th Cir. July 6, 2012), by order, filed on July 12, 2012, plaintiff was informed again and given an opportunity to provide further evidentiary submissions in support of his opposition, although no such additional submissions were required.

Plaintiff's response came in the form of a "motion for additional evidentiary submissions" wherein plaintiff in part recounts the evidentiary submissions which he notes were on file in the form of an opposition and supplemental opposition with exhibits and which this court had already considered. He also takes the opportunity given him, not to provide additional evidence in opposition to the motion for summary judgment, but to move for appointment of a neurological and/or orthopedic specialist to testify regarding plaintiff's injury before a jury at the trial he anticipates.

Plaintiff's motion is inapposite for purposes of opposition to defendants' motion for summary judgment and is premature inasmuch as the findings and recommendations are still pending.

Accordingly, IT IS ORDERED that:

1. Plaintiff's July 20, 2012 (docket # 74) motion for appointment of a neurological and/or orthopedic surgeon/specialist to testify regarding his injury before a jury is denied as inapposite and premature; and

2. No modification of the findings and recommendations, filed on July 6, 2012, is warranted in light of the response provided by plaintiff following the notice the court provided post-Woods.

20120807

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