Fearence v. Schulteis et al

Filing 83

ORDER Denying Plaintiff's Third 82 Request for Issuance of Subpoena signed by Magistrate Judge Gary S. Austin on 04/24/2014. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAQUES FEARENCE,

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Plaintiff,

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vs.

1:08-cv-00615-LJO-GSA-PC
ORDER DENYING PLAINTIFF’S
THIRD REQUEST FOR ISSUANCE OF
SUBPOENA
(Doc. 82.)

L. L. SCHULTEIS, et al.,

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Defendants.

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I.

BACKGROUND

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Jaques Fearence ("Plaintiff") is a prisoner proceeding pro se in this civil rights action

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pursuant to 42 U.S.C. ' 1983. This case now proceeds on the Third Amended Complaint filed

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by Plaintiff on November 22, 2013, against defendants Hopkins and Busby for use of excessive

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force; against defendants Hopkins, Davis, Duffy, and Beckett for failure to protect Plaintiff;

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and against defendants Hopkins, Busby, Davis, Duffy, and Beckett for conspiracy to use

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excessive force. (Doc. 64.)

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This case is currently in the discovery phase, pursuant to the court’s scheduling order
issued on February 19, 2014. (Doc. 74.)
On April 14, 2014, Plaintiff filed a request for the issuance of a subpoena, which is now
before the court. (Doc. 82.)
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II.

PLAINTIFF’S THIRD REQUEST

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Plaintiff requests the issuance of a subpoena duces tecum commanding “L. L. Shulteis,

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et, al... & Defendants & Attorney” to produce the following materials at the California

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Correctional Institution (“CCI”) before October 2014:

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--

Any designated documents or electronically stored information including

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writings, drawings, graphs, charts, photographs, sound and video recordings,

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images, and other data complications (sic) in regards to Plaintiff’s cell extraction

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on 8-11-05; and

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--

Any and all policies, directives, or instructions to staff concerning the use of

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force with MK-9 foggers OC pepper spray, in year 2005. (Doc. 82 at 6.)

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Plaintiff declares that the requested records are “not equally available to me and [] not

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obtainable from Defendants through a Request for Production of Documents, nor from my

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central file.” (Id. at 2 ¶1.) Plaintiff also declares that “[t]he documents and other relevant

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material requested [are] kept and filed away at CCI unavailable to me and the Defendants.”

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(Id. at 2 ¶1.) Plaintiff refers the court to his Exhibit A as evidence.

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Discussion

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This is Plaintiff’s third request for the issuance of a subpoena duces tecum. Plaintiff’s

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first request, filed on March 3, 2014, was denied by the court on March 6, 2014, without

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prejudice to renewal of the request. (Docs. 76, 77.) Plaintiff was advised in the court’s order

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that “[i]f Plaintiff wishes to make another request for the issuance of a records subpoena he

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may file a motion requesting the issuance of a subpoena duces tecum that (1) identifies with

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specificity the documents sought and from whom, and (2) makes a showing in the motion that

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the records are only obtainable through that third party.” (Id. at 2:13-16.) Plaintiff was also

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advised in the court’s order that “the Court will consider granting such a request only if the

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documents sought from the non-party are not equally available to Plaintiff and are not

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obtainable from Defendants through a request for production of documents [or from] Plaintiff’s

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central file at the prison, to which he is entitled to access.” (Id. at 2:8-12.)

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Plaintiff’s second request, filed on March 24, 2014, was denied by the court on March

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31, 2014, without prejudice, because Plaintiff failed to comply with the March 6, 2014 order.

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(Docs. 80, 81.) Plaintiff failed to show that the records he seeks are only obtainable through

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Defendants’ counsel, not equally available to Plaintiff, not obtainable from Defendants through

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a request for production of documents, and not obtainable from Plaintiff’s central file at the

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prison. (Id. at 2:26-3:2.) Plaintiff was granted leave to file “another request in compliance

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with [the March 31, 2014 order] and the court’s order of March 6, 2014.” (Id. at 3:II-2.)

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Plaintiff’s third request contains exhibits consisting of Defendants’ (Busby, Davis,

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Hopkins, and Duffy) Responses to Plaintiff’s Interrogatories and Request for Production of

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Documents, Set One. (Doc. 82, Exh. A.) The court has reviewed the exhibits and finds no

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evidence supporting Plaintiff’s contentions that the materials he seeks are kept at CCI or are

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obtainable through issuance of a subpoena. It appears to the court that Plaintiff has already

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requested and received the relevant materials available through his Request for Production of

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Documents.

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Plaintiff seeks documents and other materials concerning the August 11, 2005 incident
In response to Plaintiff’s Request for Production of Documents,

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at issue in this action.

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Defendants have already provided Plaintiff with (1) a list from the personnel assignment

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sergeant at CCI of individuals assigned to work in Building six, seven, and eight of 4A-yard

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during second and third watch on August 11, 2005 (Doc. 82 at 68-69); (2) Incident Report log#

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CCI-IVA-05-08-333 concerning the August 11, 2005 incident at issue (Id. at 71-82); and (3)

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Plaintiff’s staff complaint log# CCI-0-05-02644, concerning the August 11, 2005 incident at

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issue (Id. at 84-89).

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Plaintiff also requested from Defendants, in his Request for Production of Documents,

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“[a]ny and all policies, directives, or instructions to staff concerning the use of MK-9 Foggers

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OC pepper spray or other chemical agents by Tehachapi staff,” (Interrogatory1 No. 7, Doc. 82

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at 12, 23, 35, 47), and “[a]ny and all policies, directives, or instructions to staff concerning the

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All of Plaintiff’s discovery requests in his combined Interrogatories/Request for Production of
Documents, Set One, are titled as Interrogatories.
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use of force by Tehachapi staff,” (Interrogatory No. 8, Doc. 82 at 12-13, 23, 35, 47), and each

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of the Defendants responded that they “requested the relevant documents from CCI, but they

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could not find any from the relevant time period [and i]f any documents are found, I will

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supplement my response.” (Responses to Interrogatories No. 7 & 8, Doc. 82 at 12-13, 23-24,

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35-36, 47-48.) Plaintiff also requested a list of “all Correctional Sgt.’s names that worked on

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the date of the incident second and third watch 8-11-05 at Tehachapi 4A Yard Ad-Seg in

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Buildings Six, Seven, and Eighth, and list all Correctional Sgt.’s names who decontaminated

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plaintiff after he was exposed to the OC pepper spray (Interrogatory No. 21, Doc. 82 at 16-17,

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27-28, 40-41, 51-52.), and each of the Defendants responded that they “requested a copy of the

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administrative segregation logbook for the relevant time period from CCI, but due to the age of

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the requested information, they were unable to find a copy of the logbook [and i]f any

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responsive documents are found, I will supplement my response.” (Responses to Interrogatory

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No. 21, Doc. 82 at 17, 28, 40, 52.) The court finds Defendants’ responses to these requests to

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be sufficient. Defendants cannot produce documents that do not exist or cannot be found.

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Plaintiff has not specified which documents and materials he expects to obtain through

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a subpoena that he has not already requested and received through his Request for Production

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of Documents. The court will not issue a subpoena directed to L.L. Schulteis, Warden of CCI,

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that duplicates requests for materials already provided to Plaintiff by Defendants, or found to

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be unavailable at CCI. Therefore, Plaintiff’s third request for issuance of a subpoena shall be

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denied.

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III.

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CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED that Plaintiff=s third request

for the issuance of a subpoena, filed on April 14, 2014, is DENIED.

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IT IS SO ORDERED.
Dated:

April 24, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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