Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bruce v. Chaiken

United States District Court, E.D. California

July 27, 2017

VINCENT BRUCE, Plaintiff,
v.
SHAMA CHAIKEN, et al., Defendants.

          ORDER

          KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE

         Introduction

         Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's request to stay defendants' summary judgment motion, pursuant to Federal Rule of Civil Procedure 56(d). Also pending is plaintiff's leave to file a supplemental opposition and leave to file an expert declaration. (ECF Nos. 61, 62.) Defendants have filed a motion to strike plaintiff's expert declaration. (ECF No. 63.)

         For the reasons stated herein, plaintiff's request for a stay is granted, nunc pro tunc. Plaintiff's motions for leave to file the expert declaration and a supplemental opposition are granted. Defendants' motion to strike is denied.

         Background

         On October 28, 2016, defendants filed their summary judgment motion. (ECF No. 37.) On April 3, 2017, plaintiff filed his opposition. (ECF No. 51.) Plaintiff's opposition addressed the merits of defendants' summary judgment motion. (Id.) However, plaintiff also requested that defendants' motion be stayed so that he could obtain an expert:

The basis of my motion to stay the ruling on summary judgment is that I was unable to afford to hire a medical expert at the time the defendants filed for summary judgment. However, I recently settled another civil suit for $10, 000 and can now afford to hire an expert. (See Settlement Agreement for Bruce v. Adams, attached as Exhibit Q.) I expect to [hire] an expert in Internal Medicine, and have him/her review whether defendants' actions met the standard of care of constipation and fecal impaction. And have the expert review whether plaintiff suffered from ordinary constipation or fecal impaction. I anticipate that the expert's opinion will support my position that I suffered from fecal impaction and that the symptoms of fecal impaction were obvious, and defendants' failure to conduct an adequate examination and diagnosis fell so far below medical standards as to be reckless.

(Id. at 16-17.)

         On April 27, 2017, defendants filed a reply to plaintiff's opposition, a reply to plaintiff's statement of undisputed facts, an opposition to plaintiff's request for judicial notice, an opposition to plaintiff's request to strike expert testimony, and an opposition to plaintiff's request for a stay. (ECF Nos. 55, 56, 57, 58, 59.)

         On June 1, 2017, plaintiff filed the declaration of his expert, Dr. Edward Mallory. (ECF No. 60.) On June 5, 2017, plaintiff filed a motion for leave to file Dr. Mallory's declaration, a motion for leave to file a supplemental opposition and a supplemental opposition. (ECF Nos. 61, 62.) On June 16, 2017, defendants filed a motion to strike Dr. Mallory's declaration, an opposition to plaintiff's motion for leave to file Dr. Mallory's declaration, and an opposition to plaintiff's motion for leave to file a supplemental opposition. (ECF Nos. 63, 64, 65.)

         Analysis

         Federal Rule of Civil Procedure 56(d) provides,

If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.