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Azhar Lal v. Felker

August 20, 2012

AZHAR LAL, PLAINTIFF,
v.
FELKER, ET AL., DEFENDANTS.



ORDER

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. This order addresses (1) plaintiff's May 4, 2012 motion to compel, (2) defendants' May 25, 2012 motion for summary judgment and plaintiff's request for an extension of time to oppose that motion and objection to defendants' expert, (3) plaintiff's June 12, 2012 motion for appointment of an expert, and (4) plaintiff's July 6, 2012 request for an extension of time to file objections to the June 22, 2012 findings and recommendations.

I. Plaintiff's Motion to Compel and Dispositive Motions Deadline

On May 4, 2012, plaintiff filed a motion to compel defendants to produce his mental health records and to sanction defendants for failing to disclose those records. Dckt. No. 151. Plaintiff explains that in August of 2011, in responding to one of plaintiff's motions, defendants noted that a psychiatrist had found that plaintiff wanted to continue taking a certain medication even though it could adversely affect control of plaintiff's blood glucose levels. Dckt. No. 151. This apparently prompted plaintiff to send a letter to defense counsel eighth months later, in April of 2012, requesting a copy of plaintiff's "mental health file."*fn1 Id., Appx. A. In response, defense counsel informed plaintiff that defendants would respond to a formal request for production of documents under Federal Rule of Civil Procedure 34, and that plaintiff was free to request a copy of his mental health records from the custodian of those records. Id., Appx. B. Plaintiff then filed the instant motion. On May 16, 2012, defendants opposed plaintiff's motion. Dckt. No. 152. Plaintiff did not file a reply. For the reasons stated below, plaintiff's motion is denied.

Defense counsel informed plaintiff that defendants would respond to a properly served request for production, but it appears that plaintiff never properly served such a request before bringing the instant motion to compel. As defendants have not failed to respond to a proper discovery request, there is no basis for the order requested by plaintiff. Plaintiff's motion must therefore be denied. See Draper v. Coombs, 792 F.2d 915, 924 (9th Cir. 1986); see also McNeil v. United States, 508 U.S. 106, 113 (1993) (procedural requirements apply to all litigants, including prisoners lacking access to counsel); L.R. 183(a) ("Any individual representing himself or herself without an attorney is bound by the Federal Rules of Civil or Criminal Procedure, these Rules, and all other applicable law.").

Moreover, plaintiff's motion is substantively deficient in that it fails to identify with any specificity what additional documents he seeks from defendants. In their opposition, defendants explain that they provided plaintiff with copies of medical records concerning the review of plaintiff's medications, and regarding the medications ordered by plaintiff's doctors for his medical or mental health problems. Dckt. No. 152 at 3. Plaintiff, who did not file a reply, does not explain how defendants' production in this regard is inadequate.

Aside from these procedural and substantive deficiencies, plaintiff's motion must also be denied as moot. Defendants submit documentation showing that on June 14, 2012, plaintiff received copies of his mental health records through the prison's litigation coordinator. Dckt. No. 156 at 5, Ex. A.

The court notes that on February 11, 2010 the court granted defendants' request to vacate the deadline for filing dispositive motions pending resolution of plaintiff's September 23, 2009 motion to compel. Dckt. Nos. 61, 66, 79. In order to resolve the motion to compel, discovery necessarily continued beyond the September 25, 2009 deadline set in the court's June 15, 2009 discovery and scheduling order. See Feb. 11, 2010 Order, Dckt. No. 79 (granting plaintiff's motion to compel in part, and ordering defendants to produce responsive documents or prepare a privilege log); Mar. 19, 2010 District Judge's Order, Dckt. No. 85 (modifying Feb. 11, 2010 Order in part); Mar. 4, 2011 Order, Dckt. No. 109 (ordering defendants to produce to plaintiff his central and medical files, certain internal appeals documents, and other non-privileged documents); May 18, 2011 Order, Dckt. No. 121 (modifying Mar. 4, 2011 Order in part); Dec. 19, 2011 Order, Dckt. No. 143 (ordering defendants to produce to plaintiff all documents responsive to his request for copies of appeals and ordering defense counsel to show cause for potentially sanctionable conduct in discovery); Mar. 8, 2012 District Judge's Order, Dckt. No. 147 (denying defendants' request for reconsideration of Dec. 11, 2011 Order); June 22, 2012 Order, Dckt. No. 157 (discharging order to show cause). The discovery issues, originally raised in plaintiff's September 23, 2009 motion to compel are now resolved and discovery in this action is closed. The new deadline for filing dispositive motions is September 4, 2012.

II. Defendants' Motion for Summary Judgment

On May 25, 2012, defendants filed a motion for summary judgment, which plaintiff has not yet opposed. See Dckt. No. 154 (plaintiff's request for 90-day extension of time to file opposition); Dckt. No. 158 (plaintiff's objection to defendants' expert on summary judgment and request for order directing librarian to allow plaintiff copies in excess of 50-pages).

To ensure that plaintiff has "fair, timely and adequate notice" of what is required of him to oppose defendants' motion, the court must deny the motion without prejudice to its re-filing, and to concurrently serving plaintiff with notice of the requirements for opposing a motion for summary judgment.*fn2 See Woods v. Carey, ___ F.3d ___, Nos. 09-15548, 09-16113, 2012 U.S. App. LEXIS 13779 (9th Cir. July 6, 2012) ("The only satisfactory practice to ensure that prisoners receive adequate notice pursuant to Rand . . . is to provide such notice at the time that the relevant motions are filed." (emphasis added)); Rand v. Rowland, 154 F.3d 952, 960 (1998) (en banc) (requiring that the notice state that the court has required that it be given and that it be set forth in a separate document that is served with the moving papers). Plaintiff's requests related to the motion for summary judgment (Dckt. Nos. 154, 158), must therefore denied as moot.

III. Plaintiff's Motion for Appointment of an Expert

Plaintiff requests that the court appoint "an expert in order to refute respondent's expert" on summary judgment. Dckt. No. 155. As explained below, plaintiff's motion must be denied.

Under Federal Rule of Evidence 706, a district court "may order the parties to show cause why expert witnesses should not be appointed . . . ." Fed. R. Evid. 706(a). Appointment of an expert under Rule 706 relieves the court and the jury from being "completely at the mercy of the parties' warring experts," and thus, only allows for the appointment of a expert who is a "genuine neutral." In re High Fructose Corn Syrup Antitrust Litigation, 295 F.3d 651, 665 (7th Cir. 2002).

In this case, plaintiff does not seek a neutral expert. Rather, he requests appointment of an expert witness for his benefit alone, which is not authorized by Rule 706. See Gorton v. Todd, 793 F. Supp. 2d 1171, 1177-78 (E.D. Cal. 2011). Additionally, the expenditure of public funds on behalf of an indigent litigant is proper only when authorized by Congress. Tedder v. Odel, 890 F.2d 210 (9th Cir. 1989). The in forma pauperis statute does not authorize the ...


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