(PC) Rockemore v. Vasquez

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 SHAUNTEZ K. ROCKEMORE, No. 1:21-cv-01339 GSA (PC) 11 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION 12 v. FOR AN EXTENSION OF TIME TO FILE AN OPPOSITION TO DEFENDANTS’ MOTION 13 A. VASQUEZ, et al., FOR SUMMARY JUDGMENT 14 Defendants. (See ECF No. 50) 15 ORDER DENYING ALL OTHER OUTSTANDING MOTIONS FILED BY 16 PLAINTIFF 17 (See ECF Nos. 41, 42, 44, 50, 51, 53, 56, 58) 18 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY 19 JUDGMENT DUE IN THIRTY DAYS 20 21 Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed this civil 22 rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States 23 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. This matter is at the 24 dispositive motion phase of the proceedings. See, e.g., ECF No. 45 (Defendants’ motion for 25 summary judgment). 26 Before this Court are: (1) Plaintiff’s motion to late-file motion to compel (ECF No. 41); 27 (2) Plaintiff’s emergency motion to compel (ECF No. 42); Plaintiff’s motion for an in camera 28 review in opposition to privilege log (ECF No. 44); Plaintiff’s motion for ninety-day extension of 1 time to file an opposition to Defendants’ motion for summary judgment (ECF No. 50); Plaintiff’s 2 motion for Defendants to submit to Plaintiff true and correct supplemental responses to 3 interrogatories and request for sanctions (ECF No. 51); Plaintiff’s motion for the issuance of 4 subpoena (ECF No. 53); Plaintiff’s motion for an extension of time to file opposition to motion 5 for summary judgment (ECF No. 56), and Plaintiff’s request for subpoena (ECF No. 58). For the 6 reasons stated below, Plaintiff’s motions for an extension of time to file an opposition to 7 Defendants’ motion for summary judgment (ECF Nos. 50, 56), will be granted in part and denied 8 in part. In addition, all other outstanding motions filed by Plaintiff as set forth above will be 9 denied. 10 I. RELEVANT BACKGROUND 11 A. Plaintiff’s Second Amended Complaint (ECF No.17) 12 Plaintiff’s second amended complaint alleges an Eighth Amendment violation of right 13 against Defendant A. Vasquez (sergeant) and Defendant O. Rubalcava (correctional officer). 14 Plaintiff contends that on November 6, 2020, Plaintiff’s right to be free from excessive force was 15 violated when, while escorting Plaintiff to a program office, Defendants forced Plaintiff to 16 Plaintiff’s knees and maliciously and sadistically attacked Plaintiff by punching Plaintiff in the 17 face. ECF No. 17 at 5. As a result of the beating, Plaintiff contends that Plaintiff was left with a 18 mild concussion, multiple bruises on the forehead, bruised and swollen eyes, a swollen and a 19 minor bleeding nose, a loose tooth, and a punctured upper left lip. Id. Plaintiff seeks 20 compensatory and punitive damages. ECF No. 17 at 7. 21 B. Discovery Proceedings 22 On August 2, 2023, the Court issued a discovery and scheduling order. ECF No. 24. 23 In it, discovery was to end and motions to compel discovery were to be filed by February 2, 2024. 24 Id. at 4. Dispositive motions were to have been filed by April 2, 2024. Id. After extensions of 25 time had been given to Plaintiff (see ECF Nos. 37, 40), the end of discovery and motions to 26 compel deadline were reset to April 22, 2024 (ECF No. 40). 27 28 1 II. OUTSTANDING MOTIONS 2 A. Plaintiff’s Motion to Late-File Motion to Compel; Motion to Modify Discovery 3 and Scheduling Order, and Emergency Motion to Compel (ECF Nos. 41 & 42) 4 1. Plaintiff’s Motion to Late-File 5 On May 1, 2024, Plaintiff’s motion to late-file a motion to compel and to extend the 6 discovery deadline was docketed. See ECF No. 41. The motion was signed April 22, 2024. See 7 id. at 3. 8 In support of the motion, Plaintiff states that the prison law library had been closed for 9 approximately two weeks which delayed Plaintiff in making copies of Plaintiff’s joint statement 10 related to discovery disagreement and Plaintiff’s motion to compel. ECF No. 41 at 1. 11 Consequently, Plaintiff argues that Plaintiff had no alternative other than to wait for the library to 12 be open for service before mailing Plaintiff’s enclosed documents. Id. Therefore, Plaintiff 13 requests that the discovery deadline be extended so that a hearing may be had on Plaintiff’s 14 motions to compel. Id. at 2. 15 2. Defendants’ Opposition (ECF No. 43) 16 On May 22, 2024, Defendants filed a motion opposing Plaintiff’s extension of time 17 request. ECF No. 43. In it, Defendants argue that Plaintiff’s motion is untimely, that they have 18 complied with their obligation to produce relevant information, and that they should not be 19 required to produce confidential and privileged information that is contained in a responsive 20 document.1 Id. at 2-4. Citing to Federal Rule of Civil Procedure 16(b)(4), they also argue that 21 discovery should not be reopened unless it is for good cause. Id. at 4. Finally, referencing the 22 Ninth Circuit’s list of factors to consider prior to amending a Rule 16 scheduling order to re-open 23 discovery,2 Defendants argue that the totality of the circumstances lean against doing so. 24 Specifically, they oppose Plaintiff’s request arguing that re-opening discovery will further delay

25 1 The document Plaintiff requested, and which Defendants produced in a redacted form in their supplementary response, was a copy of Document Log Number 62909, ISCR Allegation Review 26 (CDCR3034), dated January 27, 2021. See ECF No. 43 at 3 (Defendants’ opposition to 27 Plaintiff’s motion to compel). 2 Defendants cite to City of Pomona v. SQM N. Am. Corp., 866 F.3d 1060, 1066 (9th Cir. 2017) 28 for the list of factors to consider. See ECF No. 43 at 5. 1 resolution of this matter and prejudice Defendants, that Plaintiff was not diligent in seeking 2 discovery despite being given extensions of time to do so, that the need for additional discovery 3 was foreseeable, and Plaintiff has not shown that re-opening discovery would lead to the 4 procurement of relevant evidence. Id. at 2-6. 5 3. Plaintiff’s Reply (ECF No. 46) 6 In Plaintiff’s reply, Plaintiff states that Plaintiff moved for an order to extend the 7 discovery deadline of April 22, 2024. ECF No. 46 at 1. Plaintiff also attempts to clarify that 8 Plaintiff does not seek additional discovery, that Plaintiff simply seeks additional time to resolve 9 discovery issues. Id. Plaintiff goes on to make a number of additional statements (see ECF No. 10 46 at 2-7), the vast majority of which are not considered given the Court’s analysis below. 11 4. Analysis 12 This motion will be denied. Although arguably Plaintiff’s motion was timely filed under 13 the mailbox rule3 as Plaintiff signed the motion (Doc No. 41) on April 22, 2024, Plaintiff’s 14 assertion that Defendants’ refusal to take part in creating a joint statement related to discovery 15 disagreements consistent with Local Rule 251 contributed to the delay in the timely filing of the 16 motion to compel (see ECF No. 41 at 2-3, 6-8), is unpersuasive. The discovery and scheduling 17 order clearly states, “unless otherwise ordered, Local Rule 251 . . . that a party certify he/she has 18 conferred in good faith or attempted to confer with the opponent in an effort to resolve the dispute 19 prior to seeking court action . . . shall not apply.” ECF No. 24 at 2 (discovery and scheduling 20 order). Furthermore, the time to resolve any additional discovery issues was during the extended 21 period of time Plaintiff had once Plaintiff began receiving responses from Defendants that 22 Plaintiff believed were insufficient. 23 Additionally, Plaintiff’s motion to compel does not clearly identify: (1) which of 24 Plaintiff’s discovery requests are at issue; (2) the responses Defendant gave to those requests, and 25

3 When a prisoner gives prison authorities a pleading to mail to the court, the court deems it 26 constructively “filed” on the date that it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 27 (9th Cir. 2010). A court also assumes that a prisoner turns his pleading over to prison authorities on the same day that he signs it. See, e.g., Porter v. Ollison, 620 F.3d 952, 955 n.2 (9th 28 Cir.2010). 1 (3) why Defendants’ responses were insufficient. See generally ECF No. 41 at 12-17 (Plaintiff’s 2 motion to compel requests); see also ECF No. 42 (Plaintiff’s emergency motion to compel). As a 3 result, the Court is unable to determine whether Defendant should be ordered to file supplemental 4 responses to any of Plaintiff’s discovery requests. For these reasons, Plaintiff’s motion to late-file 5 the motion to compel and request to modify the discovery and scheduling order, will be denied. 6 ECF No. 41. In addition, Plaintiff’s emergency motion to compel (ECF No.42), having been 7 signed by Plaintiff on April 30, 2024, and filed with the Court on May 10, 2024, both dates being 8 beyond the deadline of April 22, 2024 for the filing of motions to compel (ECF No. 40), and for 9 similar reasons identified above regarding Plaintiff’s motion to Late File, will likewise be denied. 10 B. Plaintiff’s Motion for an In Camera Review in Opposition to Defendants’ 11 Privilege Log (ECF No. 44) 12 1. Plaintiff’s Motion 13 This motion was docketed on May 24, 2024. See ECF No. 44. In it, Plaintiff requests the 14 Court: (1) to compel Defendants to lodge incident packages from January 27, 2021, and 15 November 20, 2020; (2) to order that the lodged documents be sealed, and (3) to set an in camera 16 hearing date with either the warden or an appropriate prison representative in order not to 17 jeopardize the safety and security of prison staff and inmates. Id. at 2-3. Plaintiff contends that a 18 review of the documents in question is relevant because they have information related to the 19 prison’s internal investigation into Defendants’ inappropriate use of force. Id. at 3-4. Plaintiff 20 also asserts that the documents will help Plaintiff establish Defendants’ continuing course of 21 conduct which reflects malicious and sadistic intent on their parts to use inappropriate force on 22 Plaintiff, amongst other things. Id. at 4-5. According to Plaintiff, Defendants have not produced 23 these documents because they are classified and have the potential to endanger the safety of 24 individuals at the prison. Id. at 9. 25 2. Defendants’ Opposition (ECF No.47) 26 In Defendants’ opposition to this motion, they argue that Plaintiff’s motion should be 27 denied because it is untimely as the discovery deadline closed on April 22, [2024]. ECF No. 47 at 28 2. They also contend that they have adequately responded to Plaintiff’s requests for production 1 and interrogatories. Id. at 2-3. 2 Defendants state that although they initially objected to Plaintiff’s original request based 3 on the official information privilege, ultimately, they did give Plaintiff a redacted copy of an 4 allegation review form which summarized the findings of Plaintiff’s use of force allegations as 5 well as other documents related to investigations of Plaintiff’s incident. Id. at 2. The additional 6 documents Plaintiff would like to receive, argue Defendants, do not contain any relevant 7 information beyond what has already been given to Plaintiff, namely that Defendants’ use of 8 force did not violate the California Department of Corrections and Rehabilitation’s policy. Id. at 9 3. 10 To the extent Plaintiff asserts that Defendants did not provide complete and non-evasive 11 answers to Plaintiff’s interrogatories, Defendants argue that Plaintiff has not shown how their 12 responses were evasive, incomplete, or how they lacked merit. ECF No. 47 at 3. They contend 13 that the fact Plaintiff disagreed with their sworn, credible, complete responses is not grounds for 14 Plaintiff’s objection to them. Id. For these reasons, Defendants argue, Plaintiff’s motion should 15 be denied. 16 3. Plaintiff’s Reply (ECF No.52) 17 In Plaintiff’s reply, docketed June 26, 2024, Plaintiff argues that the motion is timely 18 because it was filed when the need for it became apparent, i.e., after Plaintiff received 19 Defendants’ late return of their discovery responses which were attached to Plaintiff’s joint 20 statement. ECF No. 52 at 2. Plaintiff further contends that Defendants’ responses were “willfully 21 amended in bad faith to injure [] [him].” Id. (brackets added). Plaintiff argues that the motion is 22 not untimely, that Defendants should be required to produce and lodge the documents, and the 23 Court should consider sanctioning Defendants in order to “curb their recalcitrance [sic] to Court 24 rules.” Id. (brackets added). 25 4. Analysis 26 Initially, to the extent Plaintiff in this filing is requesting a motion to compel, aside from 27 his request for the Court to conduct an in camera review which will be addressed below, it is 28 denied as untimely as the deadline for discovery and motions to compel closed prior to Plaintiff’s 1 current motion. (see, ECF No. No 44, filed May 24,2024 and signed by Plaintiff on May 20, 2 2024; ECF No. 40, discovery & motions to compel deadline April 22. 2024). 3 As to Plaintiff’s request for an in camera proceeding, a review of Plaintiff’s principle 4 reasons for requesting an in camera review of selected Institutional Executive Review reports 5 and of redated portions of information, are that without these documents: 1- Plaintiff will not be 6 able to effectively substantiate that the use of force internal investigation at CDCR-Corcoran 7 made an inappropriate decision that Defendants used unnecessary force in retaliation to a female 8 staff assault, and 2- that Plaintiff will not be able to effectively substantiate that CDCR Office of 9 Appeals internal investigation made the appropriate decision that Defendants used unnecessary 10 force in retaliation to a female staff assault. ECF No 44 at 4-5 11 Importantly: 1-because there is now pending a motion for summary judgment filed by 12 Defendants in this action on June 3, 2024 (ECF No. 45), that the documents requested by Plaintiff 13 to be reviewed in camera, considering Plaintiff’s stated purpose for receiving these documents, do 14 not appear to be either relevant, probative or admissible in the pending summary judgment 15 motion as they are simply being sought by Plaintiff to either substantiate the correctness of, or 16 incorrectness of, the internal investigation report, and 2- because the Court elects at this time to 17 conserve judicial resources it will take to conduct an in camera review, it will deny this motion 18 without prejudice. Should Plaintiff wish to renew the motion following the Court’s ruling on 19 Defendant’s Summary Judgment motion, Plaintiff may do so. 20 C. Plaintiff’s Motion for a Ninety-Day Extension of Time to File Response to 21 Defendants’ Motion for Summary Judgment (ECF No.50) 22 1. Plaintiff’s Motion 23 On June 3, 2024, Defendants filed a motion for summary judgment (“MSJ”). ECF No. 24 45. On June 20, 2024, Plaintiff’s motion for a ninety-day extension of time to file a response to 25 the MSJ was docketed. ECF No. 50. 26 In support of Plaintiff’s extension of time request, Plaintiff states that Defendants’ MSJ is 27 premature because Plaintiff needs additional time to obtain discovery from Defendants that will 28 be used to oppose the MSJ. ECF No. 50 at 1-2. Plaintiff argues that additional discovery is 1 needed because in Defendants’ MSJ they reference some of Plaintiff’s medical records which, 2 based on a statement in them, appear to have been modified. Id. at 2. At issue is whether 3 Plaintiff refused a telemedicine appointment on November 10, 2020, a few days after the incident 4 in question occurred. See id. 5 2. Defendants’ Opposition (ECF No. 54) 6 Defendants’ opposition to Plaintiff’s extension of time request, filed July 2, 2024, argues 7 that consistent with Federal Rule of Civil Procedure 56(d) or Local Rule 260(b) the motion 8 should be denied. ECF No. 54 at 2. Specifically, Plaintiff has not shown what other specific 9 evidence Plaintiff hopes to discover and why it is relevant to Plaintiff’s claims. See id. at 2 10 (referencing Rule 56(d) and citing showing Plaintiff needs to make). Defendants further argue 11 that under Local Rule 260(b), when the need for additional discovery is stated as the basis for a 12 denial of a motion for summary judgment, the opposing party – here, Plaintiff – is required to 13 specify the particular facts upon which discovery is to be had or the issues on which discovery is 14 necessary, and that Plaintiff has not done this. ECF No. 54 at 2-3. Defendants further argue that 15 Plaintiff has not shown that additional discovery is needed in part because Plaintiff’s medical 16 records are, presumably, already in Plaintiff’s possession. Id. at 3. 17 Finally, Defendants note, in part, that after the instant motion for summary judgment was 18 filed on June 3, 2024, instead of filing an opposition to it, Plaintiff has since filed three lengthy 19 motions. See ECF No. 54 at 4 (citing to ECF Nos. 48, 50, 51). The fact that these motions and 20 four other discovery-related motions are pending, Defendants argue that they do not establish 21 good cause for the Court to extend Plaintiff’s deadline to file an opposition to their summary 22 judgment motion. Moreover, they contend such a lengthy extension would further delay the 23 resolution of this case and prejudice them. See id. All the same, Defendants state, they do not 24 oppose Plaintiff being granted a brief extension of time to file an opposition to their summary 25 judgment motion. ECF No. 54 at 5. 26 3. Plaintiff’s Reply (ECF No. 57) 27 In response, Plaintiff states that Defendants have not sufficiently responded to Plaintiff’s 28 interrogatories. ECF No. 57 at 1-2, 6-7. Plaintiff also argues that Defendants’ opposition to 1 Plaintiff’s extension of time request should not be considered because it is untimely. See id. at 2. 2 Plaintiff further contends, again, that the extension of time is needed so that Plaintiff can gather 3 certain medical records and that those records will be used to respond to Defendants’ motion for 4 summary judgment. Id. at 4. 5 4. Analysis 6 Plaintiff’s motion for a ninety-day extension of time will be granted in part to the extent 7 that it requests an extension of time to file a response to Defendants’ motion for summary 8 judgment. It will, however, be denied in part to the extent that: (1) it requests additional time to 9 collect discovery from Defendants, and (2) it requests a ninety-day extension. As previously 10 stated, Plaintiff has not provided sufficient arguments or facts to support requests to continue 11 discovery, thus this request will be denied. Finally, Plaintiff will be given a thirty-day extension 12 of time, but only to file a response to Defendants’ motion for summary judgment. 13 D. Plaintiff’s Motion for True and Correct Supplemental Responses to 14 Interrogatories and Request for Sanctions (ECF No.51) 15 1. Plaintiff’s Motion 16 In support of Plaintiff’s motion which requests that Defendants provide Plaintiff with true 17 and correct copies of their supplemental responses to Plaintiff’s interrogatories, Plaintiff contends 18 that Defendants returned improperly amended responses to the interrogatories and that they knew 19 this. ECF No. 51 at 2. This fact, Plaintiff argues, warrants the Court ordering Defendants to 20 supplement their discovery responses. Id. at 2-3. Plaintiff also argues that this further warrants 21 the Court sanctioning Defendants in the form of an entry of default judgment. Id. at 3-4. 22 2. Defendants’ Opposition (ECF No.54) 23 In response to Plaintiff’s motion for an extension of time (ECF No. 50) and Plaintiff’s 24 motion to compel (ECF No. 51), Defendants argue that Plaintiff has provided no evidence other 25 than Plaintiff’s own belief that they made any amendments to their discovery responses in bad 26 faith. ECF No. 54 at 6. Defendants further point out that Plaintiff does not explain how their 27 service of supplemental responses on Plaintiff after the discovery cut-off date demonstrates 28 improper conduct. On the contrary, Defendants contend that the service was a good-faith effort to 1 comply with their ongoing duty to supplement discovery. Id. Lastly Defendants argue that 2 Plaintiff’s claims of retaliation are wholly conclusory and unsubstantiated by any evidence. ECF 3 No. 54 at 7. In conclusion they assert this motion should be denied. Id. 4 3. Analysis 5 This motion is repetitive in parts of Plaintiff’s previous discovery-related motions. In 6 addition, as Defendants state, it is also unsupported by any facts. For these reasons, it will be 7 denied. 8 E. Plaintiff’s Motions for Subpoenas (ECF Nos. 53, 58) 9 Plaintiff has also filed two motions for the issuance of subpoenas. See ECF Nos. 53, 58. 10 Defendants have not yet filed objections to either request. 11 1. Plaintiff’s Request Docketed June 28, 2024 (ECF No. 53) 12 In the first motion, docketed June 28, 2024, in it Plaintiff seeks to obtain all of Plaintiff’s 13 medical records during the period of August 1, 2020 through November 10, 2020. Plaintiff 14 asserts that Plaintiff has been unable to access Plaintiff’s own medical records and that Plaintiff 15 needs to be able to access them in order to refute the contents of the medical records – here, a 16 doctor’s notes in Plaintiff’s records – that Defendants have attached to their summary judgment 17 motion. ECF No. 53 at 4-5. Plaintiff contends that copies of those records will show that 18 Plaintiff attended a telemedicine examination before November 9th, 2020, and that Plaintiff was 19 denied treatment because it was dangerous. Id. at 5. This, Plaintiff argues, would contradict the 20 inferences Defendants have made in the motion for summary judgment about that day. See id. 21 Plaintiff also provides what appears to be proof that Plaintiff has made an effort to obtain medical 22 records. See ECF No. 53 at 8-14 (medical records request / release). 23 As will be discussed below, it appears that Plaintiff has since been able to obtain copies of 24 the medical and other prison records that Plaintiff has requested. See generally ECF No. 58 25 (second subpoena request stating same). For this reason, Plaintiff’s first motion for subpoenas 26 will be denied. 27 2. Plaintiff’s Request Docketed July 29, 2024; Subsequent Notice to Court 28 Regarding Same (ECF No. 58) 1 The copy of Plaintiff’s second subpoena request, docketed July 29, 2024, is of poor 2 quality. See generally ECF No. 58. As a result, it is very difficult to read and understand in its 3 entirety. 4 In Plaintiff’s second request, it appears that Plaintiff references Plaintiff’s first request for 5 a subpoena of Plaintiff’s medical records. ECF No. 58 at 1-3. Plaintiff states that Plaintiff has 6 been able to obtain the document related to the medical appointment in question, as well as other 7 prison records. Id. at 3-5, 6. The records, Plaintiff asserts, will enable Plaintiff to show that there 8 is a genuine dispute regarding Defendants’ assertion that he was examined by Dr. Bryan Phi on 9 November 9, 2020, among other things. See ECF No. 58 at 3. 10 Plaintiff contends that Plaintiff needs Plaintiff’s CDCR official records authenticated, as 11 well as the medical records that Plaintiff will use to oppose Defendants’ summary judgment 12 motion. ECF No. 58 at 2. Plaintiff states that the custodian of records where Plaintiff is 13 incarcerated has refused to authenticate them. Id. at 2, 6-7. As a result, Plaintiff requests the 14 Court to order the custodian of records and medical records at the California Substance Abuse 15 and Treatment Facility to testify to the authenticity of Plaintiff exhibits that will be attached to 16 Plaintiff’s opposition to Defendant’s motion for summary judgment. Id. at 2, 6-7. Plaintiff has 17 also filed a related notice which informs the Court that Plaintiff’s request to have Plaintiff’s 18 records authenticated has still not been addressed by the prison’s custodian of medical records. 19 See ECF No. 59 (notice to Court, docketed August 16, 2024). 20 Rule 56(c)(4) of the Federal Rules of Civil Procedure states that affidavits and 21 declarations submitted for or against a summary-judgment motion [*9] "must be made on 22 personal knowledge, set out facts that would be admissible in evidence, and show that the affiant 23 or declarant is competent to testify on the matters stated." In other words, only admissible 24 evidence may be considered by the court. Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 25 1181 (9th Cir. 1988) (citations omitted). "In general, inadmissible hearsay evidence may not be 26 considered on a motion for summary judgment." Anheuser-Busch, Inc. v. Nat. Beverage Distribs., 27 69 F.3d 337, 345 n.4 (9th Cir. 1995) (citation omitted). Statements in affidavits that are legal 28 conclusions, speculative assertions, or statements of hearsay evidence do not satisfy the standards 1 of personal knowledge, admissibility, and competence required by Rule 56(c)(4). Soremekun v. 2 Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (citations omitted). 3 However, and importantly, "[a]t the summary judgment stage, [the court does] not focus 4 on the admissibility of the evidence's form. [It] instead focus[es] on the admissibility of its 5 contents." Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) (citations omitted). In other 6 words, the court can consider the evidence of a documents contents if its contents could be 7 presented in an admissible form at trial. Fraser, 342 F.3d at 1037. Thus, lack of proper 8 authentication is an appropriate objection where a document's authenticity is genuinely in 9 dispute. "An inquiry into authenticity concerns the genuineness of an item of evidence, not its 10 admissibility," Orr, 285 F.3d at 776, and documents may be authenticated by review of their 11 contents if they appear to be sufficiently genuine, Las Vegas Sands, LLC, 632 F.3d at 533 (citing 12 Orr, 285 F.3d at 778 n.24) (quotation marks omitted). 13 Here, Plaintiff should first seek a stipulation from Defendants as to the authentication of 14 Plaintiff’s prison records and Plaintiff’s prison medical records prior to requesting the Court to 15 intervene by issuing third party subpoenas. Typically, parties will stipulate to the authenticity of 16 medical records. See, e.g., Kitchens v. Tordsen, No. 1:12-cv-00105 AWI MSJ (PC), 2015 WL 17 4577050, at *1 (E.D. Cal. July 28, 2015) (noting parties often stipulate to authenticity of medical 18 records). 19 Therefore, Plaintiff’s request is denied at this point without prejudice. Should Defendants 20 not agree to the authenticity of Plaintiff’s prison medical records, Plaintiff may renew this 21 request. 22 F. Plaintiff’s Second Motion for an Extension of Time to File an Opposition to 23 Defendants’ Summary Judgment Motion; Third Motion to Compel; Motion for 24 Sanctions (ECF No. 56) 25 On July 17, 2024, another multiple motion document of Plaintiff’s was docketed. ECF 26 No. 56. In the filing, Plaintiff requests an extension of time to file a reply to Defendants’ July 2, 27 2024, opposition to Plaintiff’s request for an extension of time to file a response to their summary 28 judgment motion and to file a third motion to compel. Id. at 2-3. 1 This motion will be denied for a couple of reasons. First, after filing this motion, Plaintiff 2 was able to file a reply to Defendants’ opposition (see ECF No. 57), and the Court has considered 3 it herein. As a result, there is no need to grant Plaintiff additional time to file a reply. Second, the 4 Court has already determined in this order that Plaintiff’s request for additional time to file a 5 motion to compel will not be granted, thus his request for sanctions will likewise not be granted. 6 Therefore, this motion will be denied in its entirety. 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. For the reasons clearly stated herein, the following outstanding motions filed by 9 Plaintiff are DENIED in their ENTIRETY: ECF Nos. 41, 42, 44 (denied without prejudice), 51, 10 53, 56 and 58 (denied without prejudice). 11 2. Plaintiff’s motion for a ninety-day extension of time to file a response to Defendants’ 12 motion for summary judgment (ECF No. 50) is GRANTED IN PART and DENIED IN PART as 13 follows: 14 a. GRANTED IN PART to the extent that it requests an extension of time to file an 15 opposition to Defendants’ motion for summary judgment, and 16 b. DENIED IN PART to the extent that it requests a ninety-day extension and to the 17 extent that it asks for additional time to conduct discovery, and 18 3. Within thirty days from the date of this order, Plaintiff shall file an opposition to 19 Defendants’ motion for summary judgment. 20 Plaintiff is cautioned that absent exigent circumstances, the failure to timely file his 21 opposition may result in a recommendation that this matter be dismissed. 22 23 IT IS SO ORDERED. 24

25 Dated: March 4, 2025 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 26