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Andrew R. Lopez v. Florez

May 10, 2013

ANDREW R. LOPEZ,
PLAINTIFF,
v.
FLOREZ, ET AL.
DEFENDANTS.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO SUPPLEMENT HIS OPPOSITION TO MOTION FOR SUMMARY JUDGMENT (Doc. 169) ORDER DENYING MOTION DISCOVERY RELATED TO TRIAL WITNESSES AND FOR ASSISTANCE OF COUNSEL (Doc. 170) ORDER DENYING THE MOTION FOR SERVICE OF THE SUMMONS AND COMPLAINT ON "L. MARTIN" (Doc. 175)

Plaintiff Andrew R. Lopez ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. (Doc. 1).

Before the Court are several motions filed by Plaintiff on May 8, 2013. (Docs. 169, 170 and 175) For the following reasons, the motion to supplement Plaintiff's opposition to the motion for summary judgment is GRANTED. The motion for further discovery related to trial witnesses and appointment of counsel and the motion for service of summons and complaint on L. Martinare DENIED.

A.The motion to supplement is granted.

On April 26, 2013, Plaintiff filed a 229-page opposition to Defendants' motion for summary 3 judgment (Doc. 164) only one day after requesting a 90-day extension of time to file his opposition.

(Doc. 163). Plaintiff now seeks to supplement his opposition with another 62-page pleading. (Doc. 169). 6

Plaintiff explains that he did not receive Defendants' motion for summary judgment until two weeks after it was mailed. Id. at 1. Upon receipt, Plaintiff worked from "5:30 a.m. until 8:00 p.m. 8 every day [on his opposition], and mailed what [he] was able to complete on April 24, 2013." Id. 9

Plaintiff apparently required more time to file his entire opposition. Id. Plaintiff erroneously feared that the Court would "disregard the 'Prison Mailbox Rule' and deny everything, [a]s [he] already [has] a plethora of issues to appeal." Id. at 2.

While a 291-page opposition to motion for summary judgment is excessive, the two-week delay in Plaintiff's receipt of Defendants' motion for summary judgment provides good cause for accepting Plaintiff's supplemental opposition. Defendants have not yet replied to Plaintiff's opposition and will not be prejudiced by the filing of the supplemental opposition. Thus, Plaintiffs Motion to Supplement (Doc. 169) is GRANTED. Given the length of the document, Defendants may file a reply to Plaintiff's opposition no later than May 28, 2013. (Docs. 164 and 169).

B.The motion for discovery is denied.

Plaintiff's "motion for orders necessary for the development of trial witnesses," despite how it is titled, seeks the ability to continue discovery efforts.*fn1 Therefore, the Court construes it as a motion for further discovery.

Notably, discovery closed in this matter on March 4, 2013. (Doc. 78 at 1). The Court's March 26, 2013, order unequivocally advised Plaintiff that the Court "WILL NOT CONSIDER any further motions to compel discovery" beyond Documents 135, 137, and 139.*fn2 (Doc. 144 at 3) (emphasis in original). In the same order, Plaintiff was advised that he must show "good cause" and "diligence" in compliance with Fed. R. Civ. P. 16(d) when seeking to modify the Scheduling Order, (Doc. 78). See 2 (Doc. 144). Plaintiff fails to demonstrate either. 3

The "motion for discovery is filed over two months after the close of discovery and is untimely. Plaintiff seeks to obtain the un-redacted names of other inmates who possessed similar 5 complaints against Defendants. (Doc 170). Plaintiff requests that the Court, among other things, 6 conduct an in camera review of the documents and contact the witnesses for Plaintiff. Id. 7
The seeming suggestion that the Court has the resources to manage Plaintiff's discovery efforts is without factual support and involving the Court in a party's discovery efforts, is beyond the scope of 9 the federal discovery rules. See Fed. R. Civ. P. 26 -- 37. Furthermore, even if Plaintiff knew who these other complaining-inmates were, the Court cannot require prison officials to allow Plaintiff to correspond with these inmates let alone have confidential communications with them. The Court lacks the authority to do so. Jones v. U.S. Marshals Serv., 2009 WL ...

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