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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

DWAYNE EICHLER,

Plaintiff, No. CIV S-04-1108 GEB JFM P

vs.

CDC OFFICER SHERBIN, et al.,

Defendants. ORDER

 /

Plaintiff is a state prisoner proceeding in propria persona and in forma pauperis

with a civil rights action pursuant to 42 U.S.C.§ 1983. The July 14, 2005 third amended

complaint is the operative complaint herein. Plaintiff alleges defendants Sherbin and Lebeck

violated plaintiff’s right to be free from cruel and unusual punishment and were negligent in

failing to follow safety procedures and failing to provide for plaintiff’s safety. Plaintiff alleges

defendant Mercy Hospital of Folsom refused to treat plaintiff for his serious medical needs

constituting deliberate indifference under the Eighth Amendment. Plaintiff also raises pendent

state law claims of negligence and malpractice against defendant Mercy Hospital of Folsom. 

These allegations arose from an injury plaintiff sustained at New Folsom State Prison on or about

June 1, 2003.

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 In his reply, plaintiff contends defendant’s opposition to the motion to compel was 1

untimely filed. However, defendant’s opposition was filed fifteen days after plaintiff’s motion, well

within the briefing period. Local Rule 78-230(m).

2

 Discovery Motions

On April 10, 2006, plaintiff filed a motion to compel defendant Mercy Hospital to

respond to certain discovery requests (first and second set). In his motion, plaintiff stated that

“on or about January 17, 2006,” he served a request for admissions, interrogatories and a request

for production of documents on defendant Mercy Hospital (first set). Rather than specifically

addressing each disputed discovery request, plaintiff contended that defendant’s objections were

late and were frivolous.

Defendant Hospital contended its responses were timely under the court’s

December 21, 2005 discovery order which provided that all responses to discovery requests shall

be due forty-five days after the request is served. (April 25, 2006 Opp’n.) Defendant further 1

argued that plaintiff has failed to put defendant on notice as to what responses were allegedly

deficient in any of the discovery requests. (Id.)

The court finds defendant’s objections to the request for admissions were well

taken. Plaintiff’s motion to compel further responses to the request for admissions will be

denied.

The court has reviewed the first set of interrogatories and requests for production

of documents and the responses thereto, and finds those objections were also well taken. 

Plaintiff was provided the medical records from June 1, 2003, as well as the contract between

Mercy and the Department of Corrections. Plaintiff was informed that Grant G. Nugent, M.D.,

was the physician who treated plaintiff in the Emergency Department; Pat Romano, R.N.,

provided nursing care to plaintiff in the Emergency Department; and Dr. Borges from Folsom

State Prison requested plaintiff be transported from Mercy Hospital of Folsom to U.C. Davis. 

Dr. Nugent and R.N. Romano were identified as witnesses to plaintiff’s presence in the

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Emergency Room on June 1, 2003, in addition to several California Department of Corrections

guards. Plaintiff’s motion to compel further responses to the first set of interrogatories and

request for production of documents as to defendant Hospital will be denied. 

Plaintiff also sought an order requiring defendant Hospital to respond to the

second set of discovery requests served on April 4, 2006. The court’s scheduling order provided

that discovery closed April 21, 2006 and required all discovery requests to be served no later than

sixty days prior to that deadline. (December 23, 2005 Order at 5.) Accordingly, plaintiff’s

second set of discovery requests were untimely served. Thus, plaintiff’s motion to compel

further responses to the second set of discovery requests will be denied.

On May 2, 2006, plaintiff filed a second motion to compel discovery. This

motion was dated April 29, 2006. Plaintiff stated that defendants Sherbin and Lebeck were

granted two extensions of time so that plaintiff did not receive all of the discovery responses until

April 24, 2006. Plaintiff also asked the court to award his reasonable expenses in bringing this

motion. 

Plaintiff again failed to address the discovery items at issue individually; rather,

he appended 134 pages which included discovery requests and responses, but also included other

documents. In addition to being untimely, this motion to compel did not put defendants on

notice as to the alleged deficiencies of their responses. Moreover, the motion does not comply

with this court’s local rules that require plaintiff only file that part of the request for production

or set of interrogatories at issue. Local Rules 33-250(c); 34-250(c). Plaintiff’s second motion to

compel will be denied. Plaintiff’s request for expenses will also be denied.

Requests to Extend Deadlines

On April 10, 2006, plaintiff asked the court to extend the discovery deadline. (Id.

at 18; June 1, 2006 Mot.) Plaintiff stated he had made several requests of CDC staff to let him

look at and copy his medical records, but that he had not been allowed to review his medical file

and staff had not responded to his requests. (May 2, 2006 Mot. at 2-3.) Plaintiff also asked the

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court to extend the dispositive motion deadline and again stated he was unable to view his prison

medical file. (June 12, 2006 Mot.; June 1, 2006 Mot.) Plaintiff renewed his request to extend

the discovery deadline. (June 12, 2006 Aff. at 2.) 

On April 21, 2006, defendant Hospital joined in plaintiff’s request to extend the

discovery cut-off in light of CDC Officers’ discovery responses. 

In his opposition to defendants’ motion for summary judgment, plaintiff renewed

his request to reopen discovery. Plaintiff argues that defendants have not complied with

discovery requests under Fed. R. Civ. P. 56(f) and states “a court should not grant summary

judgment against a party who has not had an opportunity to pursue discovery or whose discovery

requests have not been answered.” (August 11, 2006 Opp’n at 27, citing Klingele v. Eikenberry,

849 F.2d 409, 412-13 (9th Cir. 1988).) Plaintiff contends he needs the following discovery:

1. Names and addresses of all inmates who were witnesses and for

deposition purposes if so desired, and to prepare possible defenses

if these are adverse witnesses.

2. Investigative employee report authored by CDC Officer J. Moore.

3. Statement Inmate Austin gave to C.O. Gomez.

4. deleted by plaintiff

5. Photographs taken by C.O. Henderson

6. Photographs taken by C.O. Byrd

7. Medical Reports authored by MTA Chisum as to Eichler and Austin.

8. “All” confidential memorandums contained in Exhibit “ ”.

9. “All” relevant files plaintiff has sought and been denied and

even though plaintiff has appealed them not allowing him access to

these dated 5-13-06.

10. “All” taped or filmed interviews regarding incident, or written.

11. “All” unanswered requests for production of documents asked

for in discovery such as memorandums in no. 14, and no. 15, etc.

12. “The names of several John Doe defendants still unknown

such as those responsible for policies, and guidelines, involved

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with overcrowding, mixing mental health inmates with none

mental health inmates, forced double celling, extensive lockdown

periods, etc.”

13. The names of those involved with classification mixups

pertaining to this case.

14. Also all other asked for in motions to compel discovery, and in

plaintiff’s opposition to Mercy Hospital’s motion for summary

judgment.

In plaintiff’s opposition to defendant Mercy Hospital’s motion for summary

judgment, plaintiff claims he needs to conduct additional discovery as to:

1. Whether Dr. Nugent is an employee or agent of Mercy Hospital

of Folsom. (Opp’n at 2.)

2. Whether plaintiff’s initial blood pressure upon presentation to

Mercy Hospital of Folsom was 162/66 with a pulse rate of 90. 

(Opp’n at 3.)

3. Whether plaintiff’s laceration was “critical” due to the depth

and severity, and therefore required closure by a plastic surgeon. 

(Opp’n at 3.)

4. Whether Dr. Nugent was concerned that plaintiff’s facial nerve

or parotid gland had been injured, both of which would require

plastic surgery revision by a specialist. (Opp’n at 4.)

5. Whether Mercy Hospital provides plastic surgery on an “on

call” basis. (Opp’n at 4.) (Plaintiff states Mercy was obligated to

treat and provide for any and all serious and emergency care.)

 

6. Whether, according to Dr. Burges, plaintiff never should have

been taken to Mercy Hospital of Folsom in the first place. (Opp’n

at 7.) (Plaintiff claims this statement is unsubstantiated.)

7. Whether Dr. Nugent was concerned plaintiff may have

sustained a facial nerve or parotid duct laceration and whether that

concern was appropriate; whether Dr. Nugent was acting in the

best interests of plaintiff because repairing a cosmetically

significant laceration of this extent must be performed by a plastic

surgeon, not an emergency physician. (Opp’n at 7.)

8. Whether repair of a severe facial laceration by a plastic surgery

specialist who is trained to repair the parotid duct and facial nerve

is the standard of care and whether transfer to higher level of care

for this injury was a medical necessity. (Opp’n at 7.)

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9. Whether at 6:45 p.m. on June 1, 2003, plaintiff’s vital signs

were taken again and his blood pressure was 142/70, with pulse

rate being 75. (Opp’n at 8.)

10. More discovery needed as to who contacted Dr. Hahn

regarding arrangements for plaintiff to be transferred to UCD

Medical Center, where he was accepted by Dr. Hahn, a plastic

surgeon, at 7:10 p.m. (Opp’n at 8.)

11. Whether plaintiff’s vital signs were again taken at 7:15 p.m.,

with blood pressure measuring 136/73 and pulse rate at 87, and

whether the bleeding was controlled at 7:15 p.m. (Opp’n at 8.)

12. Whether plaintiff’s bleeding was controlled in a reasonable

amount of time, especially considering the location of the

laceration. (Opp’n at 8.)

13. Whether or not it is easy to control bleeding in a five inch

laceration of this depth and length on the face. (Opp’n at 9.)

14. Whether the nurse’s actions with respect to the application of a

pressure dressing was appropriate and within the standard of care. 

(Opp’n at 9.)

15. Whether any attempt to ligate the bleeding vessels by

physicians or personnel not trained in plastic surgery could have

resulted in damage to vital facial structures. (Opp’n at 10.)

16. Whether plaintiff was medically stable while at Mercy

Hospital of Folsom and the transfer to UCD Medical Center was

therefore safe. (Opp’n at 11.)

17. Whether plaintiff never experienced significant changes in

these vital signs indicating he was in danger; and whether, based

on his vital signs and his bleeding being controlled, he was stable

for transport. (Opp’n at 12.)

18. Whether Mercy Hospital of Folsom records, as well as UCD

Medical Center records, indicate plaintiff’s estimated blood loss

was 500 cc’s and whether that represents an approximate blood

loss of 10 to 15% of plaintiff’s total blood volume and whether, for

the severity of plaintiff’s laceration, a 500 cc estimated blood loss

is not surprising. (Opp’n at 12.)

19. Whether plaintiff’s facial laceration required a higher level of

care that could not be provided him at Mercy Hospital of Folsom. 

(Opp’n at 12.)

The court construes plaintiff’s requests to extend the discovery deadline as Rule

56(f) requests to continue the motions for summary judgment. Fed. R. Civ. P. 56(f).

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Should it appear from the affidavits of a party opposing the motion

that the party cannot for reasons stated present by affidavit facts

essential to justify the party's opposition, the court may refuse the

application for judgment or may order a continuance to permit

affidavits to be obtained or depositions to be taken or discovery to

be had or may make such other order as is just. 

Fed. R. Civ. P. 56(f). 

As noted above, plaintiff has filed a laundry list of items about which he claims he

needs additional discovery. However, plaintiff has not demonstrated how these items would

generate facts sufficient to oppose the pending motions for summary judgment. For example,

plaintiff seeks review of his prison medical file. But plaintiff has been provided copies of the

medical records from Mercy Hospital of Folsom for June 1, 2003, the date which he was treated

there. Plaintiff’s medical records at the prison would not bear any relevance to plaintiff’s

treatment at Mercy Hospital as plaintiff contends Mercy Hospital refused to treat plaintiff. 

Plaintiff has failed to demonstrate how additional discovery pertinent to details contained within

medical records from Mercy Hospital would assist him in opposing the motion for summary

judgment.

Similarly, plaintiff’s medical records at the prison have no relevance to plaintiff’s

claims against defendants Lebeck and Sherbin as plaintiff alleges they failed to protect him and

keep him free from cruel and unusual punishment. While some of the medical records in

plaintiff’s prison medical file might be relevant to damages, the medical records from Mercy

Hospital of Folsom and the UCD Medical Center, which plaintiff has been provided, are

sufficient to demonstrate the damages plaintiff sustained on June 1, 2003. 

It also appears plaintiff seeks to expand his claims herein by seeking additional

discovery into “overcrowding, mixing mental health inmates with other inmates, forced double

celling, extensive lockdown periods, etc.” and seeking the names of those involved with

classification mixups pertaining to this case. None of these areas are at issue in this lawsuit,

particularly as to defendants Mercy Hospital of Folsom, Lebeck and Sherbin.

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Insofar as plaintiff requests to obtain all discovery previously denied by the court,

plaintiff must timely seek reconsideration of court orders rather than attempt to obtain such

discovery in a Rule 56(f) response. 

In light of the above, plaintiff’s motion for Rule 56(f) continuance will be denied.

Dispositive Motions Deadline

On June 2, 2006, defendants Sherbin and Lebeck filed a request to extend the

dispositive motion deadline. In the meantime, defendant Mercy Hospital filed a motion for

summary judgment on June 9, 2006 and defendants Sherbin and Lebeck filed a motion for

summary judgment on July 24, 2006. Good cause appearing, the June 2, 2006 request for

extension of time filed by defendants Sherbin and Lebeck will be granted. 

Request for Appointment of Counsel

Plaintiff requested the appointment of counsel. (April 10, 2006 Mot. at 19.)

The United States Supreme Court has ruled that district courts lack authority to require counsel

to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S.

296, 298 (1989). In certain exceptional circumstances, the court may request the voluntary

assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017

(9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). In the present

case, the court does not find the required exceptional circumstances. Plaintiff’s request for the

appointment of counsel will therefore be denied.

Pretrial Preparation

Plaintiff has filed numerous requests more appropriately resolved at pretrial. On

June 12, 2006, plaintiff filed a petition for writ of habeas corpus ad testificandum. Because the

court has not yet resolved dispositive motions herein, plaintiff’s motion is premature and will be

denied. Plaintiff is advised that the court will issue a writ for his attendance at trial; no further

motion is required. On June 12, 2006, plaintiff filed a motion in limine. Motions in limine are

usually filed seven days prior to trial. Plaintiff’s motion is premature and will be denied. 

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Plaintiff also asks the court to waive witness fees or allow plaintiff to make partial payments

toward the total amount of witness fees. (June 12, 2006 Affidavit at 2-3.) Plaintiff is advised

that this request is more appropriately raised in his pretrial statement. On July 18, 2006, plaintiff

filed a request for a subpoena for an unincarcerated, non-voluntary witness. This request will be

denied without prejudice to its renewal at the time plaintiff’s pretrial statement is due. New

deadlines for filing pretrial statements will be reset, if appropriate, upon resolution of dispositive

motions.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff’s April 10, 2006 motion to compel further responses to the first set of

discovery requests propounded to defendant Hospital is denied. (Docket No. 63.)

2. Plaintiff’s April 10, 2006 motion to compel responses to the second set of

discovery requests propounded to defendant Hospital is denied. 

3. Plaintiff’s May 2, 2006 motion to compel discovery responses from defendants

CDC Officers is denied without prejudice. Plaintiff’s request for expenses is denied. (Docket

No. 68.)

4. Plaintiff’s April 10, 2006, June 12, 2006, and July 11, 2006 motions, construed

as Rule 56(f) requests to continue the motions for summary judgment, and defendant Hospital’s

April 21, 2006 motion to extend the discovery deadline, are denied. (Docket Nos. 101, 80, 63, &

64.)

5. Plaintiff June 1, 2006 motion to extend the dispositive motion deadline is

denied. (Docket No. 72.)

6. Defendants’ June 2, 2006 motions to extend the dispositive motion deadline is

granted. (Docket No. 74.)

7. Plaintiff’s April 10, 2006 motion for appointment of counsel is denied. 

(Docket No. 63.)

/////

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8. Plaintiff’s June 12, 2006 request for issuance of writ of habeas corpus ad

testificandum, his request regarding witness fees and motions in limine, and his July 18, 2006

request for subpoena are denied without prejudice. (Docket Nos. 92, 80, 84, 102.) 

DATED: September 25, 2006.

/001

eich1108.cuo 

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