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Asberry v. Cate

United States District Court, E.D. California

June 4, 2014

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

ORDER

KENDALL J. NEWMAN, Magistrate Judge.

Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. ยง 1983. On March 31, 2014, the undersigned directed defendants to file further briefing regarding two requests contained in plaintiff's motion to compel. (ECF No. 151.) On April 17, 2014, defendants filed a response to the March 31, 2014 order. (ECF No. 152.) For the following reasons, defendants are directed to supplement their April 17, 2014 response.

Plaintiff's Claims

Plaintiff's claims relevant to the pending motion 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 attack by inmate Wilson.

Plaintiff alleges failure to protect claims against defendants Elson, Phelps, Virga and Chen. In particular, plaintiff alleges that defendant Elson brought inmate Wilson to plaintiff's cell. (ECF No. 49 at 7.) Plaintiff alleges that after the incident involving inmate Wilson, defendant Phelps told plaintiff that he (Phelps) made the cell move knowing that inmate Wilson had serious mental problems. ( Id. at 9.) Plaintiff also alleges that just prior to becoming plaintiff's cellmate, inmate Wilson was housed in administrative segregation ("ad seg"). ( Id. at 11.) Plaintiff alleges that while housed in ad seg, inmate Wilson behaved in a way consistent with someone with mental health problems. (Id.) Plaintiff alleges that B-4 and ad seg staff knew that inmate Wilson suffered from serious mental health problems. ( Id. at 12.)

Plaintiff alleges that defendant Chen was inmate Wilson's treating psychiatrist prior to inmate Wilson being housed with plaintiff. (Id.) Plaintiff alleges that defendant Virga, as a member of the weekly classification committee, was responsible for classifying all ad seg inmates, including inmate Wilson. (Id.) Plaintiff is alleging that defendants Chen and Virga were responsible for inmate Wilson's wrongful change in classification which resulted in inmate Wilson being housed with plaintiff.

Discussion

Defendant Ali's Response to Interrogatory No. 14

In the March 31, 2014 order, the undersigned directed defendant Ali to file a supplemental response to plaintiff's interrogatory 14. (ECF No. 151 at 6-7.) This interrogatory asked defendant Ali to describe the difference between the x-rays and MRI's taken of plaintiff's lower back prior to January 26, 2010, and those taken after that date. Defendant Ali responded that he did not have possession, custody or control of any x-rays or MRIs taken of plaintiff prior to January 26, 2010, and therefore, could not respond to interrogatory no. 14. (Id.)

In the March 31, 2014 order, the court found that it was unclear from defendant Ali's response to interrogatory no. 14 whether he was claiming that he did not have access to any x-rays or MRIs prior to January 26, 2010, because neither of these tests were performed. (Id.) The court directed defendant Ali to clarify his response.

In his supplemental response, defendant Ali states that he is not in possession, control or custody of any x-rays or MRIs taken of plaintiff prior to January 26, 2010. (ECF No. 152-1 at 16.) Defendant Ali states that he has been informed that his attorney requested plaintiff's medical records from January 1, 2009, to the present, but that no x-ray or MRI reports have been located that predate January 26, 2010. (Id.) Defendant states that he will supplement his response to the interrogatory in the event that an x-ray or MRI report is located. (Id.)

In a pleading filed May 27, 2014, plaintiff states that after having an Olsen review of his medical records, he obtained x-rays of his lower back from April 1, 2008, and February 18, 2010. (ECF No. 159.) Attached to plaintiff's pleading are what appear to be reports from these x-rays. (Id.)

Plaintiff's interrogatory no. 14 did not limit the date of any x-ray or MRI taken of his back prior to January 2010. Defendant did not make any objection to plaintiff's open-ended request for x-ray and MRI comparisons. In any event, plaintiff's request for defendant Ali to compare x-rays from April 2008 and February 2010 is not unreasonable. Accordingly, defendant Ali is directed to file a supplemental response to ...


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