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Asberry v. Cate

United States District Court, E.D. California

March 31, 2014

TONY ASBERRY, Plaintiff,
v.
MATTHEW CATE, et al., Defendants.

ORDER

KENDALL J. NEWMAN, Magistrate Judge.

Introduction

Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. ยง 1983. Pending before the court is plaintiff's motion to compel. (ECF No. 142.)

Plaintiff's Claims

Plaintiff's claims arise from a cell move on January 25, 2010. Plaintiff alleges that he was assaulted by his new cellmate, inmate Wilson, the following day, during which plaintiff suffered injuries to his back and neck. Plaintiff alleges that defendants failed to protect plaintiff from inmate Wilson. Plaintiff alleges that inmate Wilson had mental problems and was improperly classified. Plaintiff alleges that he received inadequate medical care for the injuries he suffered as a result of the alleged attack by inmate Wilson.

Discussion

In the motion to compel, plaintiff generally alleges that defendants failed to provide adequate responses to discovery requests. Plaintiff requests that the court review all of defendants' responses to his discovery requests. Plaintiff identifies the following specific responses with which he takes issue: 1) defendant Virga's response to interrogatory no. 4, set one; 2) defendant Phelps's response to interrogatory no. 15, set one; 3) defendant Ali's responses to interrogatories nos. 13 and 14. Plaintiff also contends that he has not been allowed to review his medical records. Plaintiff also argues that he should be allowed to review inmate Wilson's mental health records.

In their opposition to plaintiff's motion, defendants first object that plaintiff's motion is procedurally deficient because he generally takes issue with all of the responses provided. Defendants argue that it is plaintiff's burden to identify the specific responses to which he is objecting.

In his reply to defendants' opposition, plaintiff argues that he could not prepare a proper motion to compel because he has not had law library access since October 15, 2013. Plaintiff argues that he has not been able to leave his cell since October 15, 2013, when prison officials confiscated his wheelchair.

As the moving party, plaintiff bears the burden of informing the court which discovery requests are the subject of his motion to compel and, for each disputed response, why defendants' objection is not justified. Ellis v. Cambra , 2008 WL 860523, at *4 (E.D.Cal. Mar. 27, 2008). Plaintiff may not simply assert that he has served discovery requests, that he is dissatisfied, and that he wants an order compelling further responses.

In a separate order addressing defendants' motion for sanctions based on plaintiff's failure to attend his deposition, the undersigned found that plaintiff's claim that he required a wheelchair was not supported by his medical records. For this reason, plaintiff's claim that he could not access the law library is not well supported. The undersigned also observes that in the motion to compel, plaintiff appears quite capable of responding to defendants' objections to his discovery requests. For these reasons, plaintiff's claim of lack of library access does not justify tasking the court with reviewing each of defendants' responses to plaintiff's voluminous discovery requests.[1] The court will, however, address the specific discovery responses identified by plaintiff in the motion to compel.

The undersigned first considers plaintiff's request to review his medical file. In their opposition, defendants state that prison policies permit inmates to review their medical files through a procedure called an Olsen review. Attached as an exhibit to defendants' motion is a copy of the form inmates requesting Olsen reviews must complete.

In his reply to defendants' opposition, plaintiff references his pending motion requesting that the court order prison officials to provide him with access to his medical file. (ECF No. 146.) In this motion, plaintiff alleges that he requested an Olsen review on September 24, 2013, and September 17, 2013, but his efforts were "stonewalled." Attached as exhibits to plaintiff's motion for access to his medical file are requests submitted by plaintiff to review his medical file. Also attached as an exhibit is a memorandum dated November 14, 2013, from Health Care Services rejecting plaintiff's appeal of a denial of his request for an Olsen review. This memorandum states that the Health Care Appeals process is not the appropriate method for requesting an Olsen review.

It appears that plaintiff's previous requests for Olsen reviews were denied because plaintiff did not follow the proper procedures for requesting the reviews. Defendants have now provided plaintiff with the proper forms for requesting an Olsen review. Accordingly, plaintiff's motion for the court to order prison officials to provide him with an Olsen review is denied. ...


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