Bussiere v. Cano et al

Filing 53

ORDER Denying Plaintiff's 52 Motion to Compel signed by Chief Judge Anthony W. Ishii on 09/28/2011. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ARTHUR T. BUSSIERE,

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Plaintiff,

1:10-cv-00945-AWI-GBC (PC)

ORDER DENYING PLAINTIFF’S MOTION TO
COMPEL

v.
CANO, et al.,

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(ECF No. 52)
Defendants.
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CASE NO.

Plaintiff Arthur T. Bussiere (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this

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action on May 26, 2010. (ECF No. 1.) This action proceeds on Plaintiff’s Complaint

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against Defendants Cano1 and Lopez for deliberate indifference in violation of the Eighth

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Amendment. (ECF Nos. 13 & 16.)

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Pending before the Court is Plaintiff’s Motion for Court Order, filed September 16,
2011. (ECF No. 52.)

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The discovery phase of this action opened upon the Answer filed by Defendant
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Lopez on August 25, 2011. (ECF No. 38.) The Discovery and Scheduling Order was
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Currently pending is a Findings and Recom m endation recom m ending that Defendant Cano be
dism issed from this action. (ECF No. 46.)

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issued on August 31, 2011. (ECF No. 45.)
Discovery is self-executing until such time as a party becomes dissatisfied with a
response and seeks relief from the court pursuant to the Federal Rules of Civil Procedure.

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Interrogatories, requests for admissions, requests for production of documents, and

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responses thereto shall not be filed with the court until there is a proceeding in which the

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document or proof of service is at issue. Such documents are to be served on the

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opposing party, and not with the court. Local Rules 250.2-250.5.

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Plaintiff must first request discovery from Defendants and if Defendants fail to make
a disclosure required by Rule 26(a) of the Federal Rules of Civil Procedure, then Plaintiff

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may seek a motion to compel. See Fed. R. Civ. P. 37(a)(1) & (a)(3)(A). In addition,

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Plaintiff may request issuance of subpoenas from the Clerk of Court pursuant to Rule

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45(a)(3). Plaintiff must first serve the subpoenas, and if the subpoenaed parties do not

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comply, then Plaintiff may file a motion to compel those parties to comply with the

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subpoenas.

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

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of a subpoena commanding the production of documents from non-parties, and to service
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of the subpoena by the United States Marshal. Fed. R. Civ. P. 45; 28 U.S.C. 1915(d).

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However, the Court will consider granting such a request only if the documents sought from

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the non-party are not equally available to Plaintiff and are not obtainable from Defendants

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through a request for production of documents. Fed. R. Civ. P. 34. If Plaintiff wishes to

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make a request for the issuance of a records subpoena, he may file a motion requesting

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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

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obtainable through that third party.

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Plaintiff does not state that he attempted to obtain these documents from
Defendants. He provides no indication that he submitted a request for production of

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documents to Defendants.2 Plaintiff must follow the directives in this Order and he will be

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entitled to the issuance of a subpoena duces tecum only if the requirements set forth

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herein are satisfied.

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Accordingly, Plaintiff’s Motion to Compel is DENIED.
IT IS SO ORDERED.

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Dated:
1j0bbc

September 28, 2011
UNITED STATES MAGISTRATE JUDGE

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If Defendant objects to Plaintiff’s docum ent production request, a m otion to com pel is the next
required step. If the Court rules that the docum ents are discoverable but Defendant does not have care,
custody, and control of them , Plaintiff m ay then seek a records subpoena. If the Court rules that the
docum ents are not discoverable, the inquiry ends.