(PC) Brooks v. Cassie ( 2024 )

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 FOR THE EASTERN DISTRICT OF CALIFORNIA 11 12 WILLIE LEE BROOKS, II, Case No. 2:23-cv-00294-KJM-JDP (PC) 13 Plaintiff, ORDER 14 v. GRANTING DEFENDANT’S MOTION TO COMPEL DEPOSITION AND TO MODIFY 15 DANIEL CASSIE, et al., THE SCHEDULING ORDER AND DENYING PLAINTIFF’S MOTION TO 16 Defendants. QUASH DEPOSITION 17 ECF Nos. 39 & 40 18 FINDINGS AND RECOMMENDATIONS 19 THAT PLAINTIFF’S MOTION TO STRIKE AFFIRMATIVE DEFENSES BE DENIED 20 ECF No. 35 21 OBJECTIONS DUE IN FOURTEEN DAYS 22 23 24 Plaintiff, a state prisoner proceeding pro se, brings this case alleging that he was sexually 25 assaulted during a medical examination. Pending are plaintiff’s motion to strike two affirmative 26 defenses, ECF No. 35, plaintiff’s motion to quash or stay his deposition, ECF No. 39, and 27 defendant’s motion to compel plaintiff’s deposition and to modify the scheduling order, ECF No. 28 1 40. I recommend that plaintiff’s motion to strike be denied. I order that plaintiff’s motion to 2 quash or stay his deposition is denied, and defendant’s motion is granted. 3 Motion to Strike Affirmative Defenses 4 The motion at bar, ECF No. 35, is plaintiff’s second motion to strike affirmative defenses. 5 I recommended that his first, ECF No. 25, be granted in part, ECF No. 33, and those 6 recommendations are currently before the district judge. His current motion seeks to strike the 7 two defenses I recommended upholding in my previous findings and recommendations. Nothing 8 in this motion gives me cause to reconsider those earlier findings, and I recommend that this 9 motion be denied for the same reasons described in the previous recommendations. 10 Motion to Quash or, in the Alternative, Stay Deposition for Sixty Days 11 Plaintiff moves to quash, or, alternatively, to stay his deposition because, in April 2024, he 12 underwent back surgery. ECF No. 39 at 2. It is now September, and, in his motion, plaintiff 13 indicated that a sixty-day stay of the deposition would be appropriate to allow for physical 14 recovery. Id. at 2-3. Given that more than sixty days have passed, I will deny plaintiff’s motion 15 to quash or stay the deposition. 16 Motion to Compel and to Modify Scheduling Order 17 Defendants seek to compel plaintiff to sit for a deposition. ECF No. 40-1 at 4. 18 Defendants state that plaintiff missed his previously noticed deposition and that plaintiff has not 19 shown any basis for a protective order prohibiting such a deposition or limiting its scope. Id. at 2- 20 3. I agree. In his opposition, plaintiff argues that requiring him to sit for a deposition will force 21 him to relive the trauma of the alleged incident. ECF No. 41 at 3-4. I am not unsympathetic to 22 the mental strain plaintiff may endure in having to discuss the incident, but he has put that event 23 at issue by bringing this suit; defendants must be allowed to defend themselves. I will grant 24 defendants’ motion. 25 Accordingly, it is ORDERED that: 26 1. Plaintiff’s motion to quash or, in the alternative, stay deposition, ECF No. 39, is 27 DENIED. 28 2. Defendants’ motion to compel and modify the scheduling order, ECF No. 40, is 1 | GRANTED. Defendants shall take plaintiff's deposition within sixty days of this order’s entry. 2 | Any pre-trial motions are due within ninety days of this order’s entry. 3 Further, it is RECOMMENDED that plaintiffs motion to strike affirmative defenses, ECF 4 | No. 35, be DENIED. 5 These findings and recommendations are submitted to the United States District Judge 6 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days of 7 | service of these findings and recommendations, any party may file written objections with the 8 | court and serve a copy on all parties. Any such document should be captioned “Objections to 9 | Magistrate Judge’s Findings and Recommendations,” and any response shall be served and filed 10 | within fourteen days of service of the objections. The parties are advised that failure to file 11 | objections within the specified time may waive the right to appeal the District Court’s order. See 12 | Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 13 1991). 14 1s IT IS SO ORDERED. 16 ( 1 Sty — Dated: _ September 9, 2024 Q_-——— 17 JEREMY D. PETERSON 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28