LARRY WILLIAM CORTINAS, Case No. 2:20-cv-01067-DAD-JDP (PC) Plaintiff, ORDER THAT: v. (1) PLAINTIFF’S REQUEST FOR SCHEDULING ORDER IS DENIED; JALLA SOLTANIAN, et al., (2) DEFENDANTS’ MOTION FOR Defendants. DISMISSAL SANCTIONS IS DENIED WITHOUT PREJUDICE; (3) DEFENDANTS’ MOTION TO COMPEL IS GRANTED; (4) PLAINTIFF’S MOTIONS TO COMPEL ARE DENIED; AND (5) DEFENDANTS’ EX PARTE MOTION TO VACATE AND RESET THE DISPOSITIVE MOTIONS DEADLINE IS GRANTED ECF Nos. 67, 72, 76, 77, & 85 FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION AND RESTRAINING ORDER BE DENIED ECF No. 68 Pending before the court are various motions related to scheduling and discovery. I will address each in turn. Plaintiff’s Motion for Scheduling Order Plaintiff has filed a motion for a scheduling order that requests various forms of relief. As an initial matter, he states that he has neither received a scheduling order nor been invited to a settlement conference. ECF No. 67 at 1. A scheduling order was entered shortly before plaintiff filed this motion, however, see ECF No. 65, and it is likely that it simply hadn’t arrived at the time plaintiff filed his motion. In any event, the circumstances of this case require modification of scheduling order, which is addressed below. As to the issue of settlement, there is no entitlement to a settlement conference, and one has not been scheduled in this case. Separately, plaintiff states that he is seeking a medical mattress, orthopedic pillow, and other medical items. ECF No. 67 at 1. Such requests are beyond the scope of a scheduling order and may be granted, if at all, in a properly supported motion for preliminary injunctive relief. Plaintiff’s motion for a scheduling order is denied. Plaintiff’s Motion for Preliminary Injunctive Relief and Restraining Order In his motion for preliminary injunctive relief, plaintiff states that on November 15, 2021, a neurosurgeon examined him and determined that he would require spinal fusion surgery. ECF No. 68 at 6. He seeks an order directing prison officials to provide him with an orthotic pillow, medical mattress, and a TENS unit. Id. at 5. These requests, insofar as they derive from a diagnosis occurring in November 2021 and differ from the relief requested in the original complaint, cannot form the basis of a motion for preliminary injunctive relief. See Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 631, 636 (9th Cir. 2015). Plaintiff’s complaint centers on allegations related to pain medication that predate the November 2021 diagnosis.1 1 The complaint does allege that in November 2019, defendant Soltanian retaliated against him by confiscating mobility devices, a neck brace, and a prescription pillow. ECF No. 1 at 9-10. This misconduct, however, occurred well before the surgeon’s diagnosis. See Omega World Travel v. TWA, 111 F.3d 14, 16 (4th Cir. 1997) (“[A] preliminary injunction may never issue to prevent an injury or harm which not even the moving party contends was caused by the wrong claimed in the underlying action.”) (case cited by the Ninth Circuit approvingly in Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 631, 636 (9th Cir. 2015)). ECF No. 1 at 4-6. Accordingly, I recommend that this motion be denied. Defendants’ Motion for Terminating Sanctions for Failure to Cooperate in Discovery Defendants move for terminating sanctions based on plaintiff’s failure to participate in discovery. ECF No. 72. They state that he failed to appear2 for a remote deposition on August 10, 2022, and that he has failed to respond to written discovery propounded on June 22, 2022. Id. at 1. I agree that plaintiff has failed to fulfill his discovery obligations, but terminating sanctions are premature. In considering terminating sanctions, I evaluate five factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its dockets; (3) the risk of prejudice to the [party seeking sanctions]; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. Malone v. United States Postal Service, 833 F.2d 128, 130 (9th Cir. 1987). In considering the fifth factor, the availability of less drastic sanctions, the Ninth Circuit has held that courts should consider three subparts: “whether the court explicitly discussed alternative sanctions, whether it tried them, and whether it warned the recalcitrant party about the possibility of dismissal.” Valley Eng’rs, Inc. v. Elec. Eng’g Co., 158 F.3d 1051, 1057 (9th Cir. 1998). Here, none of those subparts are answered in the affirmative and, thus, I find terminating sanctions against a pro se party inappropriate at this time. I consider the most crucial of these to be the warning about possible dismissal and this order shall constitute that warning. If plaintiff does not meet his discovery obligations within thirty days of this order, I may find terminating sanctions appropriate and recommend dismissal. Defendants’ motion for terminating sanctions is denied without prejudice. Their separate motion to compel based on plaintiff’s failure to submit written responses, ECF No. 74, is granted. Plaintiff must serve his written responses within thirty days of this order’s entry. He must also sit for a deposition, if defendants choose to schedule another. If he fails to fulfill either of these 2 In his second motion to compel, plaintiff states that he was suffering from Covid-19 and gastrointestinal issues on the day he was to appear for his deposition. ECF No. 77 at 1. He states that he told a correctional officer about these symptoms but could not call or otherwise contact defendants’ attorneys in advance. Id. at 2. obligations, defendants may renew their motion for terminating sanctions, and I may recommend that this action be dismissed. Plaintiff’s Motions to Compel Plaintiff has filed two motions to compel. ECF Nos. 76 & 77. In the first, he argues that Brandy Ebert, a prison litigation coordinator at the California Department of Corrections and Rehabilitation (“CDCR”), has refused to turn over e-mails he subpoenaed unless he pays 964 dollars, an amount he states that he does not have. ECF No. 76 at 1. A document attached to his second motion to compel indicates that this amount is the cost for copying and labor in producing these e-mails. ECF No. 77 at 5. The court is not unsympathetic to plaintiff’s position, but it is not authorized to pay his discovery fees or to direct a third party to change its billing practices. Additionally, it appears that the subpoena in question did not issue in this case or from this court. The document apprising plaintiff of the costs indicates that the subpoena issued in a case called “Cortinas v. Lu_San Joaquin County Superior Court Case No. STK-CV-LMM-2020-0007969.” Id. Accordingly, it would be inappropriate for this court to enforce or otherwise manage compliance with that subpoena. The second motion to compel is similarly concerned with plaintiff’s inability to obtain the emails he subpoenaed. Id. at 2. That inability is not properly the subject of a motion to compel, however, insofar as it appears that CDCR itself, not the defendants, control the emails at issue. And, as explained above, it does not appear that this court issued the subpoena in question. Accordingly, plaintiff’s motions to compel are denied. Defendants’ Motion to Vacate the D
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LARRY WILLIAM CORTINAS, Case No. 2:20-cv-01067-DAD-JDP (PC) Plaintiff, ORDER THAT: v. (1) PLAINTIFF’S REQUEST FOR SCHEDULING ORDER IS DENIED; JALLA SOLTANIAN, et al., (2) DEFENDANTS’ MOTION FOR Defendants. DISMISSAL SANCTIONS IS DENIED WITHOUT PREJUDICE; (3) DEFENDANTS’ MOTION TO COMPEL IS GRANTED; (4) PLAINTIFF’S MOTIONS TO COMPEL ARE DENIED; AND (5) DEFENDANTS’ EX PARTE MOTION TO VACATE AND RESET THE DISPOSITIVE MOTIONS DEADLINE IS GRANTED ECF Nos. 67, 72, 76, 77, & 85 FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION AND RESTRAINING ORDER BE DENIED ECF No. 68 Pending before the court are various motions related to scheduling and discovery. I will address each in turn. Plaintiff’s Motion for Scheduling Order Plaintiff has filed a motion for a scheduling order that requests various forms of relief. As an initial matter, he states that he has neither received a scheduling order nor been invited to a settlement conference. ECF No. 67 at 1. A scheduling order was entered shortly before plaintiff filed this motion, however, see ECF No. 65, and it is likely that it simply hadn’t arrived at the time plaintiff filed his motion. In any event, the circumstances of this case require modification of scheduling order, which is addressed below. As to the issue of settlement, there is no entitlement to a settlement conference, and one has not been scheduled in this case. Separately, plaintiff states that he is seeking a medical mattress, orthopedic pillow, and other medical items. ECF No. 67 at 1. Such requests are beyond the scope of a scheduling order and may be granted, if at all, in a properly supported motion for preliminary injunctive relief. Plaintiff’s motion for a scheduling order is denied. Plaintiff’s Motion for Preliminary Injunctive Relief and Restraining Order In his motion for preliminary injunctive relief, plaintiff states that on November 15, 2021, a neurosurgeon examined him and determined that he would require spinal fusion surgery. ECF No. 68 at 6. He seeks an order directing prison officials to provide him with an orthotic pillow, medical mattress, and a TENS unit. Id. at 5. These requests, insofar as they derive from a diagnosis occurring in November 2021 and differ from the relief requested in the original complaint, cannot form the basis of a motion for preliminary injunctive relief. See Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 631, 636 (9th Cir. 2015). Plaintiff’s complaint centers on allegations related to pain medication that predate the November 2021 diagnosis.1 1 The complaint does allege that in November 2019, defendant Soltanian retaliated against him by confiscating mobility devices, a neck brace, and a prescription pillow. ECF No. 1 at 9-10. This misconduct, however, occurred well before the surgeon’s diagnosis. See Omega World Travel v. TWA, 111 F.3d 14, 16 (4th Cir. 1997) (“[A] preliminary injunction may never issue to prevent an injury or harm which not even the moving party contends was caused by the wrong claimed in the underlying action.”) (case cited by the Ninth Circuit approvingly in Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 631, 636 (9th Cir. 2015)). ECF No. 1 at 4-6. Accordingly, I recommend that this motion be denied. Defendants’ Motion for Terminating Sanctions for Failure to Cooperate in Discovery Defendants move for terminating sanctions based on plaintiff’s failure to participate in discovery. ECF No. 72. They state that he failed to appear2 for a remote deposition on August 10, 2022, and that he has failed to respond to written discovery propounded on June 22, 2022. Id. at 1. I agree that plaintiff has failed to fulfill his discovery obligations, but terminating sanctions are premature. In considering terminating sanctions, I evaluate five factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its dockets; (3) the risk of prejudice to the [party seeking sanctions]; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. Malone v. United States Postal Service, 833 F.2d 128, 130 (9th Cir. 1987). In considering the fifth factor, the availability of less drastic sanctions, the Ninth Circuit has held that courts should consider three subparts: “whether the court explicitly discussed alternative sanctions, whether it tried them, and whether it warned the recalcitrant party about the possibility of dismissal.” Valley Eng’rs, Inc. v. Elec. Eng’g Co., 158 F.3d 1051, 1057 (9th Cir. 1998). Here, none of those subparts are answered in the affirmative and, thus, I find terminating sanctions against a pro se party inappropriate at this time. I consider the most crucial of these to be the warning about possible dismissal and this order shall constitute that warning. If plaintiff does not meet his discovery obligations within thirty days of this order, I may find terminating sanctions appropriate and recommend dismissal. Defendants’ motion for terminating sanctions is denied without prejudice. Their separate motion to compel based on plaintiff’s failure to submit written responses, ECF No. 74, is granted. Plaintiff must serve his written responses within thirty days of this order’s entry. He must also sit for a deposition, if defendants choose to schedule another. If he fails to fulfill either of these 2 In his second motion to compel, plaintiff states that he was suffering from Covid-19 and gastrointestinal issues on the day he was to appear for his deposition. ECF No. 77 at 1. He states that he told a correctional officer about these symptoms but could not call or otherwise contact defendants’ attorneys in advance. Id. at 2. obligations, defendants may renew their motion for terminating sanctions, and I may recommend that this action be dismissed. Plaintiff’s Motions to Compel Plaintiff has filed two motions to compel. ECF Nos. 76 & 77. In the first, he argues that Brandy Ebert, a prison litigation coordinator at the California Department of Corrections and Rehabilitation (“CDCR”), has refused to turn over e-mails he subpoenaed unless he pays 964 dollars, an amount he states that he does not have. ECF No. 76 at 1. A document attached to his second motion to compel indicates that this amount is the cost for copying and labor in producing these e-mails. ECF No. 77 at 5. The court is not unsympathetic to plaintiff’s position, but it is not authorized to pay his discovery fees or to direct a third party to change its billing practices. Additionally, it appears that the subpoena in question did not issue in this case or from this court. The document apprising plaintiff of the costs indicates that the subpoena issued in a case called “Cortinas v. Lu_San Joaquin County Superior Court Case No. STK-CV-LMM-2020-0007969.” Id. Accordingly, it would be inappropriate for this court to enforce or otherwise manage compliance with that subpoena. The second motion to compel is similarly concerned with plaintiff’s inability to obtain the emails he subpoenaed. Id. at 2. That inability is not properly the subject of a motion to compel, however, insofar as it appears that CDCR itself, not the defendants, control the emails at issue. And, as explained above, it does not appear that this court issued the subpoena in question. Accordingly, plaintiff’s motions to compel are denied. Defendants’ Motion to Vacate the Dispositive Motions Deadline Defendants request that, given the outstanding discovery issues, the dispositive motions deadline, previously set for November 18, 2022, be vacated. ECF No. 85. That motion will be granted, and this order will vacate that deadline and set a new schedule. Accordingly, it is hereby ORDERED that: 1. Plaintiff’s motions for scheduling order and to compel, ECF Nos. 67, 76, & 77, are 2. Defendants’ motion for terminating sanctions, ECF No. 72, is DENIED without prejudice. 3. Defendants’ motions to compel and to vacate the dispositive motions deadline, ECF Nos. 74 & 85, are GRANTED. 4. By no later than February 2, 2023, plaintiff must submit his written responses to defendants’ discovery requests. Defendants are granted until February 17, 2023, to reschedule and complete plaintiff's deposition if they still wish to do so. Any motion to compel must be filed by the same date. The deadline for filing dispositive motions is continued to April 17, 2023. Further, it is RECOMMENDED that plaintiff's motion for preliminary injunction and temporary restraining order, ECF No. 68, be denied. I submit these findings and recommendations to the district judge under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within 14 days of the service of the findings and recommendations, any party may file written objections to the findings and recommendations with the court and serve a copy on all parties. That document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The district judge will review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C). Failure to file objections within the specified time may result in the waiver of rights on appeal. See Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). ( q Sty - Dated: _ January 4, 2023 ow—— JEREMY D. PETERSON 54 UNITED STATES MAGISTRATE JUDGE