Opinion
22-cv-05832 BLF (PR)
04-02-2024
TRACYE BENARD WASHINGTON, Plaintiff, v. J. SERRATO, et al., Defendants.
ORDER DENYING REQUESTS FOR EXPERT WITNESSES, SUBPOENA, AND TO DEPOSE BY WRITTEN INTERROGATORIES; GRANTING EXTENSION OF TIME TO FILE OPPOSITON (DOCKET NOS. 25, 27, 26, 28, 29)
BETH LABSON FREEMAN UNITED STATES DISTRICT JUDGE
Plaintiff, a California inmate, filed the instant pro se civil rights action pursuant to 42 U.S.C. § 1983 against prison staff at Salinas Valley State Prison (“SVSP”), where he was formerly housed. On May 3, 2023, the Court found the complaint stated cognizable claims of excessive force and conspiracy to commit an assault, and ordered the matter served on Defendants. Dkt. No. 9. On January 29, 2024, Defendants E. Guijarro, B. Akins, A. Serrato, and C. Diaz filed a motion for summary judgment on the merits as well on the grounds that Plaintiff failed to exhaust administrative remedies and they are entitled to qualified immunity. Dkt. No. 21. Plaintiff's motion for an extension of time to file opposition was granted, such that his opposition is currently due by April 26, 2024. Dkt. No. 24.
Plaintiff has filed several requests: (1) request for expert medical witness under FRCP No. 706, Dkt. No. 25; (2) request for issuance of subpoenas, Dkt. No. 26; (3) request to depose Defendants and non-party witness with written interrogatories, Dkt. No. 27; (4) ex parte request for court appointed expert to examine his wheelchair, Dkt. No. 28; and (5) court appointed expert witness to examine photographic evidence, Dkt. No. 29.
In his first request for an expert witness, Plaintiff asserts that he is not qualified to make medical determinations and that this case will require expert testimony regarding the injuries he sustained during the altercation at issue. Dkt. No. 25 at 1. This request is DENIED because expert medical testimony is not necessary to decide Plaintiff's excessive force claim at summary judgment. Because the facts will be construed in the light most favorable to Plaintiff, he need only submit evidence that establishes that a genuine issue of material fact exists to oppose Defendants' summary judgment motion.
Plaintiff's request for a subpoena to be issued to the Warden of Salinas Valley State Prison is DENIED without prejudice. Dkt. No. 26. Plaintiff should first seek to obtain discovery from Defendants rather than from a third party and abide by the Federal Rules of Civil Procedure in doing so.
Plaintiff's request to depose all Defendants and non-parties in the form of written interrogatories is DENIED as unnecessary because leave of court is not required under Rule 31(a)(1). Dkt. No. 27.
Plaintiff requests an expert witness to examine his “Driver model wheelchair” which was exchanged for his “Medline model wheelchair” to dispute the cause of his injuries during the altercation at issue. Dkt. No. 28. He also requests an expert witness to examine photographs submitted by Defendants and test whether Defendants' version of events is plausible. Dkt. No. 29. The motions are DENIED because the cause and extent of Plaintiff's injuries are not at issue at this stage of the proceedings, and Defendants' version of events may be disputed by Plaintiff's declaration.
Because Plaintiff is still seeking discovery, the Court will sua sponte grant him additional time to file his opposition. Plaintiff's opposition to Defendants' summary judgment motion shall be filed no later that May 24, 2024, which is an extension of twenty-eight days from the current deadline.
Defendants shall file a reply brief no later than fourteen (14) days after Plaintiff's opposition is filed.
This order terminates Docket Nos. 25, 26, 27, 28, and 29.
IT IS SO ORDERED.