Moran v. Dutra et al

Filing 87

ORDER (1) DENYING Plaintiff's 56 Motion for Subpoena Duces Tecum; (2) DEEMING 11 First Amended Complaint Amended to Substitute E. Onwubuya in Place of Dedee as Defendant; (3) DIRECTING Clerk's Office to Amend Court Records to Reflect Substitution; (4) DENYING Plaintiff's 64 Request for Extension of Time to Amend the Court's Discovery and Scheduling Order; (5) DENYING Plaintiff's 70 Request to Modify the Discovery and Scheduling Order; and (6) DENYING Plaintiff's 71 Motion for Subpoena, signed by Magistrate Judge Michael J. Seng on 8/29/2014. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NICOLAS MORAN,
Plaintiff,

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v.
K. DUTRA, et al.,

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Defendants.

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CASE NO. 1:11-cv-0914-LJO-MJS (PC)
ORDER (1) DENYING PLAINTIFF’S
MOTION FOR SUBPOENA DUCES
TECUM (ECF No. 56); (2) DEEMING
FIRST AMENDED COMPLAINT (ECF No.
11) AMENDED TO SUBSTITUTE E.
ONWUBUYA IN PLACE OF DEDEE AS
DEFENDANT; (3) DIRECTING CLERK’S
OFFICE TO AMEND COURT RECORDS
TO REFLECT SUBSTITUTION; (4)
DENYING PLAINTIFF’S REQUEST FOR
EXTENSION OF TIME TO AMEND THE
COURT’S DISCOVERY AND
SCHEDULING ORDER (ECF No. 64); (3)
DENYING PLAINTIFF’S REQUEST TO
MODIFY THE DISCOVERY AND
SCHEDULING ORDER (ECF No. 70);
AND (4) DENYING PLAINTIFF’S MOTION
FOR SUBPOENA (ECF No. 71)

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I.

PROCEDURAL HISTORY

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action brought pursuant to 42 U.S.C. § 1983. (ECF No. 1.) This action proceeds

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against Defendants Ryan and Dedee on Plaintiff’s Eighth Amendment inadequate

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medical care claim, and against Defendants Dutra and Auten on Plaintiff’s Eighth

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Amendment excessive force claim. (ECF Nos. 12, 13.)

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On October 26, 2012, this Court ordered the United States Marshal to serve

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Plaintiff’s amended complaint on Defendants. (ECF No. 17.) Defendants Ryan, Auten,

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and Dutra waived service and answered the complaint. (ECF No. 24, 42, 47). However,

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service as to Defendant Dedee was twice returned unexecuted. (ECF No. 21, 32.)

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On October 4, 2013, the Court issued a discovery and scheduling order, setting

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the deadline to amend pleadings as April 4, 2014, the discovery cut-off date as June 4,

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2014, and the dispositive motion deadline as August 14, 2014. (ECF No. 46.)

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On October 10, 2013, the Court ordered Plaintiff to show cause why Defendant

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Dedee should not be dismissed. (ECF No. 48.) Plaintiff responded to the Court’s order

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(ECF No. 51), but the Court concluded that Plaintiff had not shown good cause and

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issued findings and a recommendation that Defendant Dedee be dismissed (ECF No.

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63).

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On December 13, 2013, Plaintiff filed a motion for a subpoena duces tecum,

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seeking to obtain the full name and address of Defendant Dedee. (ECF No. 56.)

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Defendants Dutra, Ryan, and Auten opposed the motion, but noted that the California

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Department of Corrections and Rehabilitation (“CDCR”) had recently identified

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Defendant Dedee’s “true” name as E. Onwubuya. (ECF No. 57.) Plaintiff filed a reply, in

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which he also asked the Court to amend Defendant Dedee’s name to “E. Onwubuya.”

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(ECF No. 60.)

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On April 3, 2014, Plaintiff filed a request to amend the discovery and scheduling

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order, seeking to extend the deadline to amend pleadings to correct Defendant Dedee’s

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name. (ECF No. 64.) Defendants filed an opposition. (ECF No. 67.) Plaintiff did not file a

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reply.

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Thereafter, the court discharged the order to show cause and directed

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Defendants Auten, Ryan and Dutra to provide the United States Marshal with Defendant

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Dedee’s correct name and contact information. (ECF No. 68.) Defendants complied

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(ECF No. 69), and on June 24, 2014, the Marshal again was ordered to serve Defendant

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Dedee. (ECF No. 74.) Service is still pending.

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Meanwhile, on June 2, 2014, Plaintiff filed a motion to modify the discovery and

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scheduling order to extend the discovery cut-off. (ECF No. 70.) Defendants opposed the

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motion. (ECF No. 72.) Plaintiff filed a reply. (ECF No. 77.)

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Additionally, on June 13, 2014, Plaintiff filed a motion for subpoena. (ECF No. 71.)
Defendants opposed the motion (ECF No. 76), and Plaintiff filed a reply (ECF No. 80).

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The following motions filed by Plaintiff are ready for decision: (1) December 13,

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2013 motion for subpoena (ECF No. 56); (2) April 3, 2014 motion to extend the time to

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amend pleadings (ECF No. 64); (3) June 2, 2014 motion to extend the discovery cut-off

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(ECF No. 70); and (4) June 13, 2014 motion for subpoenas (ECF No. 71).

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II.

MOTION FOR SUBPOENA DUCES TECUM REGARDING DEFENDANT DEDDE

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Plaintiff’s seeks to subpoena the Chief Medical Officer at Pleasant Valley State

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Prison to provide Defendant Dedee’s “full information,” which Plaintiff allegedly needs to

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serve his complaint. (ECF No. 56.) Defendants Dutra, Auten, and Ryan oppose the

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motion on the grounds that Plaintiff did not make the required showing for a subpoena

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duces tecum, and because their recent disclosure of Defendant Dedee’s information to

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the Marshals Service renders Plaintiff’s motion moot. (ECF No. 57.) In reply, Plaintiff

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asks to amend his pleading to reflect Defendant Dedee’s true name, “E. Onwubuya.”

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(ECF No. 60.)

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Because Defendants have provided the Marshals Service with Defendant

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Dedee’s true name and last known address (ECF No. 69), the Court will deny Plaintiff’s

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motion for subpoena as moot. His request to amend the complaint is discussed in

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Section III, below.

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III.

REQUEST TO AMEND COMPLAINT TO REFLECT DEDEE’S TRUE NAME

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As noted above, Plaintiff asks to amend his pleading to reflect Defendant Dedee’s

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true name. (ECF No. 60.) Plaintiff also seeks to modify the Court’s discovery and

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scheduling order to extend the April 4, 2014 deadline for amending pleadings to allow

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time for Defendant Dedee to be served. (ECF No. 64.) Defendants argue that Plaintiff

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has not shown good cause to amend the discovery and scheduling order, and that

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Defendants will be prejudiced if the deadline is held open until Defendant Dedee is

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served. (ECF No. 67.)

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Based on the submissions of the parties (ECF Nos. 57 & 60), it appears that E.

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Onwubuya is the name of the individual whose actions are at issue in this case.

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Accordingly, the Court will deem Plaintiff’s first amended complaint (ECF No. 11)

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amended to substitute E. Onwubuya in place of Dedee.

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It appears that Plaintiff’s only basis for seeking to extend the deadline to amend

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pleadings is his desire to correct Defendant Dedee’s name. He provides no reason why

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the deadline to amend should be held open until this defendant is served. In light of the

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Court’s decision to deem Plaintiff’s first amended complaint amended, the Court will

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deny Plaintiff’s motion for extension of time as moot.

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IV.

REQUEST TO EXTEND DISCOVERY CUT-OFF

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Plaintiff seeks a ninety day extension of the discovery cut-off to obtain information

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and/or documents relating to administrative review of the events at issue in this action. 1

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(ECF No. 70.) More specifically, Plaintiff explains that the reviewer in Plaintiff’s second

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level administrative appeal concluded that health care staff involved in the events at

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issue did not violate CDCR policy. (Id. at 22.) However, the Office of Third Level Appeals

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found that the second level reviewer’s conclusion was not supported by the evidence

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submitted. (Id. at 23.) Accordingly, a modification order was issued, ordering the second

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Plaintiff implies that his prior motion to modify the Court’s discovery and scheduling order (ECF No. 64),
discussed in Section III, above, also sought an extension of the discovery cut-off. However, that motion
only sought to extend the deadline to amend pleadings.

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level reviewer to provide evidence supporting the conclusion to the Office of Third Level

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Appeals, or to re-conduct the inquiry and to provide all documentation associated with

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the new inquiry to the Office of Third Level Appeals. (Id.) Plaintiff has sought the

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“outcome” of this modification order through requests to various non-parties without

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success. (Id. at 2-4.) Plaintiff also suggests that he requested this information from

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Defendants by requesting “all and every piece of document” related to the events at

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issue. Id. at 4.

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Defendants object to Plaintiff’s request on numerous grounds. (ECF No. 72.)

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Defendants first argue that Plaintiff did not seek this information in his request for

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production of documents and, even if his request could be construed liberally to have

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requested the “outcome” of the modification order, Defendants properly objected to the

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request on confidentiality grounds. (Id. at 4-7.) Additionally, Defendants point out that

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Plaintiff did not file a motion to compel. (Id. at 7-8.) Defendants next argue that additional

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discovery in this action would be repetitive and abusive, given that Plaintiff recently

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served Defendants with written deposition questions that essentially duplicate Plaintiff’s

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requests for admission. (Id. at 8-9.) Finally, Defendants assert that no further discovery

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regarding the modification order is necessary. (Id. at 9-10). In support of this argument,

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Defendants point to declarations attached to their opposition, which state that Pleasant

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Valley State Prison (“PVSP”) provided evidence to the Office of Third Level Appeals as

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required in the modification order, and that the Office of Third Level Appeals determined

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that the requirements of the modification order were fulfilled. (ECF No. 72-7 at 3-4, 72-10

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at 2-3.) According to Defendants, these declarations provide Plaintiff with the “outcome”

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of the modification order. (ECF No. 72 at 9.)

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In reply, Plaintiff asserts that he is entitled to the documents under Title 15,
§ 3084.9(i)(3)(B)(1) and (2) of the California Code of Regulations. (ECF No. 77.)

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Plaintiff has not shown good cause to extend the discovery cut-off. See Fed. R.

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Civ. P. 16(b)(4). Plaintiff’s request for production of documents, even when liberally

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construed, did not seek information relating to the modification order. Even if it did,

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Defendants objected to Plaintiff’s request for production of documents on January 15,

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2014 (ECF No. 72-3), and Plaintiff did not file a motion to compel. Plaintiff also received,

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as early as January 25, 2013, unsatisfactory responses to his informal requests for

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documents from non-parties. (ECF No. 70.) However, Plaintiff did not seek relief from the

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discovery cut-off until June 2, 2014, two days before discovery concluded. Plaintiff has

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since filed a belated motion to subpoena the non-parties, but he is not entitled to

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subpoenas for the reasons discussed in Section V, below. Accordingly, the Court cannot

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conclude that Plaintiff exercised the requisite diligence in securing the information he

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seeks. Johnson, 975 F.2d at 609.
The Court therefore will deny Plaintiff’s motion to extend the discovery cut-off.

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V.

MOTION FOR SUBPOENAS REGARDING ADMINISTRATIVE APPEAL

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On June 13, 2014, Plaintiff filed a motion for subpoenas duces tecum, seeking to

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subpoena the following individuals at PVSP to provide information concerning the

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modification order, yard tapes and CDs, and “the committee’s decisions in regards to

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[Plaintiff’s] lower back issues”: 1) A. Nesbit, 2) U. Baniga, Chief Medical Executive,

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Health Care Services, 3) S. Navarro, Health Care Appeals Coordinator, Health Care

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Appeals Office, and 4) Charles E. Young, MS, Chief Executive Officer, Health Care

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Services. (ECF No. 71.)

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Defendants oppose the motion on the ground that it is untimely, abusive, and

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improper. (ECF No. 76.) Defendants assert that the requested subpoenas would require

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disclosure of protected information and that Defendants will move to quash any

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subpoenas issued in response to Plaintiff’s motion. Defendants again assert that Plaintiff

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has been provided the “outcome” of the modification order through declarations, and

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thus Plaintiff has no need to subpoena non-parties for further information. Defendants

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note that Plaintiff’s request for the “committee’s decision” is vague and, to the extent it

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relates to Plaintiff’s medical evaluations, that information is accessible to Plaintiff in his

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medical file. Finally, Defendants assert that Plaintiff did not request any “yard tapes” in

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his requests for production, that there is no basis for believing the identified non-parties

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possess any “yard tapes,” and that Defendants made a “reasonable inquiry” into the

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existence of any recordings of the events at issue here and learned that there were

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none.

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Plaintiff’s motion was filed after the discovery cut-off and is untimely and, even if

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timeliness was not in issue, Plaintiff is not entitled to subpoenas for the reasons set forth

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below.

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Parties may be entitled to the issuance of a subpoena commanding the

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production of documents from a nonparty, subject to certain requirements. Fed. R. Civ.

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P. 26(b), 34(c), 45. However, the Court will consider granting such a request only if the

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documents sought from the nonparty are not equally available to Plaintiff and are not

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obtainable from Defendant through a request for the production. See Fed. R. Civ. P. 34.

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If Defendant objects to Plaintiff's discovery request, a motion to compel is the next

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required step. If the Court rules that the documents are discoverable but Defendant does

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not have care, custody, and control of them, Plaintiff may then seek a subpoena of a

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nonparty. Alternatively, if the Court rules that the documents are not discoverable, the

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inquiry ends.

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The Court will not issue a subpoena for a nonparty without Plaintiff first following

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the procedure outlined above. The record reflects that Plaintiff has not sought the

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requested information through discovery requests served upon Defendants and Plaintiff

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certainly has not filed a motion to compel Defendants to produce the requested

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documents. Accordingly, Plaintiff’s motion for subpoenas duces tecum will be denied.

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VI.

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CONCLUSION AND ORDER
Based on the foregoing, the Court HEREBY ORDERS as follows:
1. Plaintiff’s motion for subpoena duces tecum (ECF No. 56) is DENIED as
moot;

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2. Pursuant to Federal Rule of Civil Procedure 15, Plaintiff’s first amended

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complaint (ECF No. 11) is deemed amended to substitute E. Onwubuya in

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place of Dedee;
3. The Clerk’s Office is directed to amend the court records to reflect this

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substitution;
4. Plaintiff’s motion for an extension of time to amend the discovery and

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scheduling order, which seeks to extend the deadline to amend pleadings

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(ECF No. 64) is DENIED as moot;
5. Plaintiff’s motion to modify the discovery and scheduling order to extend

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the discovery cut-off (ECF No. 70) is DENIED; and
6. Plaintiff’s motion for subpoenas duces tecum (ECF No. 71) is DENIED.

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IT IS SO ORDERED.
Dated:

August 29, 2014

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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