Sutherland v. Yates et al

Filing 67

ORDER DENYING Plaintiff's 58 Motion for Subpoenas as Untimely, signed by Magistrate Judge Gary S. Austin on 1/15/13. (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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vs.
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JAMES A. YATES, et al.,
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Defendants.

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1:09-cv-02152-LJO-GSA-PC
ORDER DENYING PLAINTIFF’S MOTION
FOR SUBPOENAS AS UNTIMELY
(Doc. 58.)

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I.

RELEVANT PROCEDURAL HISTORY

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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 this

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action on December 11, 2009. (Doc. 1.) This case now proceeds on the First Amended Complaint,

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filed on December 6, 2010, against defendants Correctional Officer ("C/O") A. Fernando and C/O

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M. Jericoff for use of excessive force in violation of the Eighth Amendment; against Warden James

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A. Yates (“Defendants”) for failure to protect Plaintiff in violation of the Eighth Amendment; and on

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Plaintiff's related state tort claims. (Doc. 15.)

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On September 8, 2011, the Court issued a scheduling order establishing a deadline of May 8,

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2012 for the completion of discovery, including the filing of motions to compel, and a deadline of

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July 19, 2012 for the filing of pretrial dispositive motions. (Doc. 27.)

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On December 10, 2012, Plaintiff filed a motion for issuance of subpoenas duces tecum. (Doc.

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58.) On December 13, 2012, Defendants file an opposition. (Doc. 59.) On January 3, 2013, Plaintiff

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filed a reply to the opposition. (Doc. 65.)

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II.

PLAINTIFF’S MOTION

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Plaintiff requests the Court to issue five subpoenas duces tecum compelling five nonparties

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to produce documents. Plaintiff asserts that the May 8, 2012 deadline for completion of discovery

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in this action is not applicable to this motion, because he is not requesting new discovery, but instead

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is requesting documents that Defendants failed to provide him pursuant to the Court’s order of

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September 14, 2012.

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However, procedurally it makes no difference whether Plaintiff seeks new discovery or seeks

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to obtain documents previously requested. The May 8, 2012 deadline for completion of discovery

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is applicable to all discovery in this action, including the filing of motions to compel. (Doc. 27 at 2

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¶8.) The May 8, 2012 deadline has not been extended. (Doc. 54.) Therefore, Plaintiff’s motion for

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subpoenas, filed on December 10, 2012, is untimely and shall be denied as such.

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III.

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CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion for subpoenas,

filed on December 10, 2012, is DENIED as untimely.

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IT IS SO ORDERED.
Dated:
6i0kij

January 15, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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