Simmons v. Hedgpeth

Filing 198

ORDER Denying Plaintiff's 193 Motion for Issuance of Subpoenas Duces Tecum signed by Magistrate Judge Stanley A. Boone on 08/03/2016. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHRISTOPHER I. SIMMONS,

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Plaintiff,

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v.

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GRISSOM, et al.,

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Defendants.

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Case No.: 1:07-cv-01058-DAD-SAB (PC)
ORDER DENYING PLAINTIFF’S MOTION FOR
ISSUANCE OF SUBPOENAS DUCES TECUM
[ECF No. 193]

Plaintiff Christopher I. Simmons is appearing pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983.

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Currently before the Court is Plaintiff’s motion for issuance of subpoena duces tecum, filed

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July 5, 2016. Defendants did not file a response, and the motion has been submitted upon the record

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without oral argument. Local Rule 230(l).

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I.

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DISCUSSION

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Discovery in this action opened in July 2014, and the parties were given eight months to

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conduct pretrial discovery. (ECF No. 90.) In December 2014, Plaintiff was transferred from the

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California Medical Facility (CMF) to the Atascadero State Hospital (ASH) for psychiatric treatment.

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(ECF Nos. 105, 107.) Plaintiff was retained at ASH for 49 days, from December 5, 2014, to January

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23, 2015. (ECF No. 113, at 2 and n.1.) During this time, Plaintiff was without his legal materials.
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(Id. at 2.) As a result, the Court modified the scheduling order by extending the discovery deadline

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and the dispositive motion deadline, each by 60 days. (ECF No. 115.)
Then, approximately two months later, Plaintiff was transferred from the CMF to ASH a

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second time. (ECF No. 120.) Plaintiff was again separated from his legal materials for just over 90

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days. The Court modified the scheduling order by extending the discovery deadline for an additional

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60 days, and the dispositive motion deadline for an extra 50 days. (ECF No. 123.) On September 28,

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2015, the Court denied Plaintiff’s motion to stay the proceedings but extended the discovery and

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dispositive motion deadlines each by thirty days. (ECF No. 131.) The discovery deadline expired on

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October 28, 2015. (ECF No. 131.) On November 9, 2015, the Court denied Plaintiff’s motion for

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reconsideration of the denial of his request to stay the proceedings. (ECF No. 135.) On February 29,

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2016, the Court denied Plaintiff’s motion to further extend the discovery deadline due to the lack of a

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showing of due diligence and good cause. (ECF No. 165.)
In the present motion, Plaintiff seeks the issuance of subpoena duces tecum directed to the

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custodian of records at Kern Valley State Prison to obtain a copy of the institutions “heat plan”

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records. Plaintiff’s request is untimely as the discovery phase of this action has been closed for

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several months. The fact that Plaintiff failed to follow and comply with the proper procedure in

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seeking subpoena duces tecum during the discovery phase of this action does not support a basis to re-

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open the discovery phase of this action. Accordingly, Plaintiff’s motion for issuance of subpoena

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duces tecum is DENIED.

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IT IS SO ORDERED.
Dated:

August 3, 2016
UNITED STATES MAGISTRATE JUDGE

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