(PC) Sullivan v. Biter et al, No. 1:2012cv01662 - Document 110 (E.D. Cal. 2017)
Court Description: FINDINGS and RECOMMENDATIONS recommending that 101 Defendants' Motion to Dismiss as a Sanction be DENIED re 57 Amended Prisoner Civil Rights Complaint signed by Magistrate Judge Erica P. Grosjean on 12/11/2017. Referred to Judge Ishii. Objections to F&R due within fourteen (14) days. (Jessen, A)
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1 2 3 4 5 6 7 8 9 10 11 UNITED STATES DISTRICT COURT 12 EASTERN DISTRICT OF CALIFORNIA 13 14 15 MICHAEL J. SULLIVAN, Plaintiff, 16 17 v. 18 CHEN, et al., 1:12-cv-01662-AWI-EPG-PC FINDINGS AND RECOMMENDATIONS THAT DEFENDANTS’ MOTION TO DISMISS BE DENIED (ECF No. 101) Defendants. 19 20 21 22 23 24 25 26 Plaintiff, Michael J. Sullivan (“Plaintiff”), is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. ' 1983. This case now proceeds with Plaintiff’s Second Amended Complaint filed on February 13, 2015, on Plaintiff’s Eighth Amendment claims for deliberate indifference to serious medical needs against Defendants Chen, Patel, and Marchiano.1 (ECF No. 57.) 27 28 1 Defendant Marchiano has not been located for service, and has not yet appeared in this case. 1 1 On September 8, 2017, Defendants filed a Motion to Dismiss as a Sanction. (ECF No. 2 101). Defendants argue that Plaintiff’s initial disclosures failed to “identify any witnesses or 3 documents supporting his claims,” as required by this Court’s order requiring initial 4 disclosures. (ECF No. 78) Defendants argue “[i]t is clear that Plaintiff has no evidence to 5 6 7 8 support his claims. Neither the Court nor Defendants should be forced to breathe life into this matter when Plaintiff shows no interest in pursuing his claims.” After several continuances, the Court held an initial scheduling conference on December 11, 2017. The Court and parties addressed Plaintiff’s initial disclosures. The Court 9 ordered Plaintiff to supplement his initial disclosures to identify witnesses supporting his 10 11 12 13 14 claims within 30 days, and to supplement that list to the extent he learns additional witnesses through discovery. As for Defendant’s second issue, the Court disagrees that Plaintiff’s initial disclosures fail to sufficiently identify documents. Plaintiff’s initial disclosures contain two pages 15 identifying seven categories of documents, including “KVSP Policy and Procedures and 16 training guidelines and actual training received by Defendants in regards to proper treatment 17 and standard of care for treating chronic ortho injuries and disabilities and the treatment of 18 severe debilitating pain.” (ECF No. 100, at p. 8-9). This description satisfies the requirement 19 for identification of categories of documents in the Court’s initial disclosures order. (ECF No. 20 78, p. 2). 21 Defendant’s motion also argues that Plaintiff’s initial disclosures fail to include a 22 computation of damages. However, the Court’s order did not require such a computation of 23 damages, and Rule 26’s initial disclosures requirement does not apply to this action. Fed. R. 24 Civ. P. 26(a)(1)(B)(iv) (exempting “an action brought without an attorney by a person in the 25 custody of . . . a state”). 26 27 28 Defendant’s argument thus amounts to a request to dismiss Plaintiff’s case in full solely on the basis that Plaintiff’s initial disclosures did not sufficiently identify witnesses. The Court has now ordered Plaintiff to supplement those disclosures to identify witnesses. Moreover, 2 1 Plaintiff’s complaint identified relevant witnesses, including the Defendants by name. Notably, 2 Defendants do not cite to any cases in their motion, not to mention any case authorizing 3 dismissal under similar circumstances. 4 Ultimately, the Court does not believe Plaintiff’s omission justifies dismissing the case 5 in full. Indeed, the Court views Defendants’ motion to dismiss to be unwarranted, if not 6 7 8 9 10 11 12 13 14 15 frivolous. CONCLUSION AND RECOMMENDATIONS For the foregoing reasons, IT IS HEREBY RECOMMENDED that Defendants’ Motion to Dismiss as a Sanction, (ECF 101), be DENIED. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being served with these findings and recommendations, any party may file written objections with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be served and filed within seven (7) days after service of the objections. 16 17 IT IS SO ORDERED. 18 19 Dated: December 11, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 3
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