Opinion
No. CIV S-07-0666-KJM-CMK-P.
September 30, 2011
ORDER
Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided by 28 U.S.C. 636(b)(1)(B) and Local Rule 302.
On March 2, 2011, the magistrate judge filed findings and recommendations, which were served on the parties and which contained notice that the parties may file objections within a specified time. Plaintiff has filed timely objections to the findings and recommendations; several defendants have responded to plaintiff's objections.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304(f), this court has conducted a de novo review of this case. For the reasons set forth below, it declines to adopt the findings and recommendations at this time.
During the course of the litigation, plaintiff sought to depose his treating physicians by written questions. See ECF Nos. 131, 148, 158, 159. The magistrate judge restricted the questions plaintiff could ask one physician, Dr. Allen, because the latter was being deposed as a percipient witness rather than as an expert witness. ECF No. 157. Plaintiff sought reconsideration of this order. ECF No. 160. The district court found that the order was not clearly erroneous, but said its determination was without prejudice to plaintiff's renewing the objections upon a showing he had complied with Rule 26(a)(2) of the Federal Rules of Civil Procedure. ECF No. 168.
Plaintiff returned to the magistrate judge with renewed objections, based on his contention that he had properly designated Dr. Allen as an expert witness. ECF Nos. 186-187. The magistrate judge allowed defendants to respond to plaintiff's renewed showing. ECF Nos. 192, 195-196. The docket, which is lengthy and convoluted, does not reflect that the magistrate judge resolved the objections or considered what impact any such resolution might have on the summary judgment proceedings.
Accordingly, IT IS HEREBY ORDERED that:
1. The court declines to adopt the findings and recommendations (ECF No. 209);
2. The case is referred back to the magistrate judge for resolution of plaintiff's renewed request to depose Dr. Allen as an expert witness and its bearing, if any, on the motions for summary judgment.