Rangel v. Tilton et al

Filing 67

ORDER Denying 46 Motion to Compel Discovery of Non-Party Witnesses: Captain Jennings, Sergeant Beer and Correctional Officer Silva; Order Denying 48 Motion to Compel Discovery on Non-Party Witness: Correctional Officer E. Torres, signed by Magistrate Judge Barbara A. McAuliffe on 6/25/13. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LEONARDO JOSEPH RANGEL,

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Plaintiff,
v.
D. LATRAILLE, et al.,
Defendants.

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Case No.: 1:10-cv-01790-AWI-BAM PC
ORDER DENYING MOTION TO COMPEL
DISCOVERY OF NON-PARTY WITNESSES:
CAPTAIN JENNINGS, SERGEANT BEER AND
CORRECTIONAL OFFICER SILVA (ECF No. 46)
ORDER DENYING MOTION TO COMPEL
DISCOVERY ON NON-PARTY WITNESS:
CORRECTIONAL OFFICER E. TORRES (ECF No.
48)

Plaintiff Leonardo Joseph Rangel (“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. This action is proceeding on

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the first amended complaint, filed January 9, 2012, against Defendants Latraille and Tabor for

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excessive force in violation of the Eighth Amendment.

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On February 15, 2013, Plaintiff filed a motion to compel discovery from non-party witnesses,

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Captain Jennings, Sergeant Beer and Correctional Officer Silva pursuant to Federal Rule of Civil

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Procedure 37. Plaintiff claims that these persons have direct and indirect knowledge of the

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circumstances related to this action. It is unclear whether Plaintiff propounded interrogatories and

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requests for production of documents on these non-parties. (ECF No. 46.)

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On February 19, 2013, Plaintiff filed a motion to compel discovery from non-party witness E.

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Torres, a correctional officer. Plaintiff claims that Officer Torres has direct and indirect knowledge of

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the circumstances related to this action. Plaintiff requests to obtain evidence from Officer Torres in

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the form of interrogatories and requests for production of documents. (ECF No. 48.) For the reasons

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set forth below, Plaintiff’s motions shall be denied.

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First, Plaintiff may not propound interrogatories on non-parties. Fed. R. Civ. P. 33 (a party

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may serve interrogatories “on any other party”). Therefore, the Court cannot compel non-parties to

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respond to any interrogatories. Further, Plaintiff may not depose any non-parties orally or in writing

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unless he complies with Federal Rules of Civil Procedure 30 and 31, which include arranging for the

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recording of the deposition before an officer designated in compliance with Federal Rule of Civil

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Procedure 28.

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Second, Plaintiff has not established that he is entitled to the issuance of a subpoena

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

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United States Marshal. Fed. R. Civ. P. 45. To be entitled to the issuance of a subpoena for a non-

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party, Plaintiff must establish to the Court’s satisfaction that the documents requested from the non-

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party are not equally available to Plaintiff and are not obtainable from Defendants through requests for

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production of documents. Fed. R. Civ. P. 34. If Plaintiff wishes to request the issuance of a records

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subpoena, he may file a motion that (1) identifies with specificity the documents sought and from

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whom; (2) makes a showing that the records are only obtainable through that third party; and (3)

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makes a showing that discovery should be re-opened.

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Accordingly, Plaintiff’s motions to compel discovery from non-parties pursuant to Federal

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Rule of Civil Procedure 37 are DENIED.

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IT IS SO ORDERED.

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Dated:

/s/ Barbara

June 25, 2013

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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