Bryant v. Gallagher et al

Filing 133

ORDER Denying Plaintiff's 118 Motion for Reconsideration, signed by District Judge Lawrence J. O'Neill on 3/27/14. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KEVIN DARNELL BRYANT

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Plaintiff,
v.
P. GALLAGHER, et al.,

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Defendants.

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Case No.: 1:11-cv-00446-LJO-BAM PC
ORDER DENYING PLAINTIFF’S MOTION FOR
RECONSIDERATION
(ECF No. 118)

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I.

Procedural Background

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Plaintiff Kevin Darnell Bryant (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. This action is proceeding on

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Plaintiff’s first amended complaint, filed on July 5, 2011, against Defendant Romero for deliberate

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indifference to serious medical needs in violation of the Eighth Amendment; and against Defendants

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Gallagher and Romero for conspiracy, retaliation in violation of the Eighth Amendment and failure to

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protect in violation of the Eighth Amendment. Pursuant to a discovery and scheduling order, the

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discovery deadline in this action expired on October 22, 2012. (ECF No. 50.)

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On October 18, 2012, Plaintiff filed a motion to compel Defendants to provide responses to

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certain requests for production of documents and responses to interrogatories. (ECF No. 78.) Plaintiff

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also filed a motion to extend the discovery deadline and a motion for a court order directing prison

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officials at Kern Valley State Prison to provide him with a set number of law library hours each week.

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(ECF Nos. 79, 80.)

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On October 31, 2012, the Magistrate Judge issued findings and recommendations that

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Plaintiff’s motion for law library access be denied and that Plaintiff’s motion for a forty-five day

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extension of the discovery cut-off be denied as a sanction for Plaintiff’s motion for court order. (ECF

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No. 81.) The undersigned adopted the findings and recommendations on November 20, 2012. (ECF

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No. 87.)

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On July 12, 2013, Plaintiff filed a motion requesting the reopening of discovery for an

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additional 180 days in this action. (ECF Nos. 113, 114.) The motion is pending and Plaintiff’s reply

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is due on April 22, 2014. (ECF No. 132.)

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On July 29, 2013, Plaintiff filed the instant motion for reconsideration of the Magistrate

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Judge’s order on July 17, 2013, denying his motion for a court order compelling discovery. (ECF No.

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118.) Defendants did not respond and the motion is deemed submitted. Local Rule 230(l).

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II.

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The Magistrate Judge’s decision on nondispositive pretrial issues is reviewed under the clearly

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erroneous standard. Bhan v. NME Hospitals, Inc., 929 F.2d 1404, 1414 (9th Cir. 1991); see also Fed.

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R. Civ. P. 72(a) (“The district judge in the case must . . . set aside any part of the order that is clearly

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erroneous or is contrary to law.”)

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Motion for Reconsideration

In this instance, Plaintiff has not established that the Magistrate Judge’s order was “clearly

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erroneous” or “contrary to law.” Plaintiff states that he seeks reconsideration of the Magistrate Judge’s

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July 17, 2013 order denying his motion to compel. (ECF No. 118, p. 1.) The order at issue primarily

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involved Plaintiff’s request to compel Defendants’ responses to certain requests for production of

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documents and interrogatories. (ECF No. 115, p. 3.) However, the bulk of Plaintiff’s motion for

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reconsideration appears to relate to other orders issued by the Magistrate Judge, which denied

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Plaintiff’s requests for subpoenas duces tecum to compel the production of documents from non-

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parties. (ECF No. 118, pp.1-6.) This is not a proper basis for reconsideration of the Magistrate

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Judge’s July 17, 2013 order denying Plaintiff’s motion to compel.

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To the extent Plaintiff challenges the Magistrate Judge’s order denying his request to compel

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non-parties to respond to his requests for production, requests for admissions and interrogatories, he

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has not identified any specific error on the part of the Magistrate Judge. The Magistrate Judge

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properly determined that the requests at issue were untimely, that interrogatories and requests for

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admissions directed to non-parties were not permitted by the Federal Rules of Civil Procedure and that

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Plaintiff did not follow the proper mechanism for obtaining third-party discovery. (ECF No. 115, p.

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12.) Although Plaintiff argues that he followed the proper mechanism for obtaining third-party

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discovery, but was denied by the Court, a motion to compel is not the appropriate means to obtain

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documents from a third party. A Rule 45 subpoena is the only discovery method by which

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information may be obtained from a third party. Fed. R. Civ. P. 34(c) (non-parties may be compelled

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to produce documents by subpoena), 45 (subpoenas); see also Frazier v. Redding Police Dept., 2012

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WL 5868573, *7-8 (E.D. Cal. Nov. 19, 2012) (motion to compel non-party to provide documents not

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proper in the absence of appropriate service of a non-party subpoena in accordance with Fed. R. Civ.

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P. 45(b)(1)); Jennings v. Moreland, 2012 WL 4469079, *2 (E.D. Cal. Sept. 27, 2012) (“A motion to

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compel is the remedy under the Federal Rules of Civil Procedure to compel a party’s compliance with

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a discovery request; it is not the procedure to address a non-party’s alleged refusal to comply with a

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subpoena duces tecum and a subsequent court order to do so.”).

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Plaintiff also appears to support his request for reconsideration by arguing that he was

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obstructed by prison officials from obtaining law library access and filing documents in this Court

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between June 2012 and October 20, 2012. (ECF No. 118, pp. 2-5.) Plaintiff’s argument is belied by

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the Court’s docket. Between June 2012 and October 20, 2012, Plaintiff filed the following: (1)

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Motion for Leave to Serve Discovery on Non-Party Employees and Custodian of Records of CDCR

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on July 16, 2012 (ECF No. 66); (2) Plaintiff’s Declaration in Support of His Motion for Leave to

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Serve Discovery and Subpoenas on Non-Party on July 16, 2012, which included citations to Local

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Rules, Federal Rules of Evidence and court cases (ECF No. 67); (3) Motion for Court Order or

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Subpoena Duces Tecum for the Kern County Superior Court to Forthwith Send to Me All the

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Discovery Medical Records and Photos of My Injured Leg I Subpoenaed from Mercy Hospital of

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Bakersfield on October 11, 2012 (ECF No. 71); (4) Declaration of Kevin D. Bryant in Support of His
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Motion for Court Order or Subpoena Duces Tecum on October 11, 2012 (ECF No. 72); and (5)

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Motion for Extension of Time for Discovery Cut Off Date and to File Motion to Compel Discovery

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(ECF No. 73.) There is no evidence that Plaintiff was unable to access the law library, legal research

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or this Court during the time period for discovery. Furthermore, Plaintiff’s claim that he was denied

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law library access and prevented from filing documents in this Court is not a basis for reconsideration

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of the Magistrate Judge’s order denying Plaintiff’s motion to compel.

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III.

Conclusion and Order

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For the reasons stated, Plaintiff’s motion for reconsideration is DENIED.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

March 27, 2014

UNITED STATES DISTRICT JUDGE

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