Sutherland v. Yates et al

Filing 32

ORDER DENYING 31 Request for Subpoenas, Without Prejudice; ORDER for Clerk to Send Plaintiff Copy of Court's Prior Order 30 , signed by Magistrate Judge Gary S. Austin on 2/16/2012. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WILLIAM SUTHERLAND,

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Plaintiff,

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1:09-cv-02152-LJO-GSA-PC
ORDER DENYING REQUEST FOR
SUBPOENAS, WITHOUT PREJUDICE
(Doc. 31.)

v.
JAMES A. YATES, et al.,

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ORDER FOR CLERK TO SEND PLAINTIFF
COPY OF COURT’S PRIOR ORDER
(Doc. 30.)

Defendants.
/

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William Sutherland (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing

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this action on December 11, 2009. (Doc. 1.) This case now proceeds on Plaintiff’s First Amended

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Complaint, filed on December 6, 2010, against defendants Correctional Officer (“C/O”) A.

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Fernando, C/O M. Jericoff, and Warden James Yates, for failure to protect Plaintiff, and on

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Plaintiff’s related state tort claims.1 (Doc. 15.)

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This case is currently in the discovery phase. On February 13, 2012, Plaintiff filed a request

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seeking the issuance of four subpoenas commanding non-parties Legal Department of Pleasant

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Valley State Prison and Secretary of State, to provide the following documents and information:

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On June 16, 2011, the Court dismissed all other claims and defendants from this action, based on Plaintiff’s
failure to state a claim under § 1983. (Doc. 20.)

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Records of the investigation into Plaintiff’s form 602 staff complaint against
defendants Jericoff, Fernando, and Yates;

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All personal records of defendants Jericoff, Fernando, and Yates;

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Copy of the incident video recorded by C/O W. Morris at 11:45 on May 26, 2009;

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Copy of the assignment of C/O L. Torres at 11:45 on May 26, 2009;

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Name of the Internal Affairs Officer that conducted the investigation into the

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incident;

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Present location of material inmate and correctional officer witnesses; and

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Oaths or affirmations of involved correctional officers, Internal Affairs officers,

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attorneys, and witnesses.

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Plaintiff asserts that he filed a prior request for subpoenas with the Court in September 2011

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but did not receive any response. The Court entered an order on September 29, 2011 addressing

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Plaintiff’s prior request and served a copy of the order on Plaintiff at his address of record. (Doc.

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30.) The Clerk shall be directed to send Plaintiff another copy of the order for his review.

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For the reasons set forth below, Plaintiff’s present request is denied, without prejudice.

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Subject to certain requirements set forth herein, Plaintiff is entitled to the issuance of a

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subpoena commanding the production of documents from non-parties, and to service of the subpoena

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by the United States Marshal. Fed. R. Civ. P. 45; 28 U.S.C. 1915(d). However, the Court will

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consider granting such a request only if the documents sought from the non-party are not equally

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available to Plaintiff and are not obtainable from Defendants through a request for production of

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documents. Fed. R. Civ. P. 34. With respect to the names or locations of persons sought by

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Plaintiff, it appears to the Court that this information is available to him through interrogatories

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propounded upon Defendants. Fed. R. Civ. P. 33. Also, some of the documents sought by Plaintiff

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may be kept in Plaintiff’s central file at the prison, to which he is entitled to access. If Plaintiff

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wishes to make another request for the issuance of a records subpoena, he may file another motion

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requesting the issuance of a subpoena duces tecum that (1) identifies with specificity the documents

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sought and from whom, and (2) makes a showing in the motion that the records are only obtainable

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through that third party.
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For the reasons set forth above, IT IS HEREBY ORDERED that:

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Plaintiff’s request for the issuance of subpoenas, filed on February 15, 2012 is
DENIED, without prejudice; and

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The Clerk is directed to SEND to Plaintiff a copy of the Court’s order entered on
September 29, 2011.

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IT IS SO ORDERED.
Dated:
6i0kij

February 16, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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