Polonco v. Biter, et al.
Filing
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ORDER GRANTING IN PART AND DENYING IN PART Plaintiff's Motion for Discovery and Issuance of Subpoena Duces Tecum 31 , signed by Magistrate Judge Stanley A. Boone on 1/13/15: The Court authorizes the issuance of a subpoena duces tecum directing the Warden at Pelican Bay State Prison to produce documents; The Clerk of Court shall serve a copy of the subpoena with this order. (Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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RIGOBERTO POLONCO,
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Plaintiff,
v.
M. D. BITER, et al.,
Defendants.
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Case No.: 1:12-cv-00984-SAB (PC)
ORDER GRANTING IN PART AND DENYING IN
PART PLAINTIFF’S MOTION FOR DISCOVERY
AND ISSUANCE OF SUBPOENA DUCES
TECUM
[ECF No. 31]
Plaintiff Rigoberto Polonco is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
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On September 15, 2014, Plaintiff filed a motion for discovery and requests issuance of a
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subpoena duces tecum commanding the Warden at Pelican Bay State Prison (PBSP) to produce certain
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documents to assist in the identity of Does 2 and 3. Plaintiff contends that the Warden and/or
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Associate Warden at PBSP has not complied with his prior requests for information as to the identity
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of these Doe Defendants.
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Plaintiff previously filed a motion for discovery on August 11, 2014, in which he indicated that
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his requests for access to certain documents were denied. (ECF No. 29.) On September 4, 2014, the
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Court opened discovery for the limited purpose of obtaining documents necessary to identify Does 2
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and 3. Plaintiff was also directed to identify any and all documents necessary to identity Does 2 and 3
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for discovery pursuant to Rule 45 of the Federal Rules of Civil Procedure. (ECF No. 30.)
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Subject to certain requirements, Plaintiff is entitled to the issuance of a subpoena commanding
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the production of documents or tangible things from a nonparty, Fed. R. Civ. P. 45, and to service of
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the subpoena by the United States Marshal, 28 U.S.C. § 1915(d). However, the Court will consider
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granting such a request only if the documents or tangible things from the nonparty are not equally
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available to Plaintiff. Fed. R. Civ. P. 34.
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Here, Plaintiff seeks a copy of all documents in his central file, a copy of a video tape
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recording of the May 5, 2011, incident and the identity of the correctional officers involved, a unit
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form relating to the identity of Doe 2, and any and all documentation by correctional officials on May
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5, 2011, such as medical reports, minute order report, and incident log reports. Plaintiff indicates that
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he has requested information but has received no response. (ECF Nos. 29, 31.) The Court grants in
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part and denies in part Plaintiff’s motion for issuance of subpoena dues tecum.
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The Court finds that Plaintiff’s request for a copy of the entire central file to be overbroad, as
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such request is not limited to the circumstances relevant to this action. Accordingly, the Court will
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limit the information from his central file as it relates to information pertinent to the factual
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circumstances of the May 5, 2011, incident only.
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Pursuant to Federal Rule of Civil Procedure 45(a)(4), this order serves as notice to the parties
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that the United States Marshal will be direct to initiate service of the subpoena following the passage
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of ten days from the date of service of this order, and a copy of the subpoena shall be provided with
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this order.
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Accordingly, based on the foregoing, IT IS HEREBY ORDERED that:
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1.
The Court authorizes the issuance of a subpoena duces tecum directing the Warden at
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Pelican Bay State Prison to produce the following documents:
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a.
at Kern Valley State Prison;
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Any documents from Plaintiff’s central file relating to the May 5, 2011, incident
b.
Any copy of a video recording or information relating to a video recording of
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the May 5, 2011, incident and unit forms and/or name tags of the correctional
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officers involved in the incident; and
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c.
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Any documentation by correctional officers relating to the May 5, 2011,
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incident involving Plaintiff at Kern Valley State Prison, such as medical reports,
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minute order reports, and/or incident log reports.
2.
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Pursuant to Rule 45(a)(4), the parties are placed on notice that the subpoena duces
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tecum will be issued after the passage of ten (10) days from the date of service of this
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order; and
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The Clerk of Court shall serve a copy of the subpoena with this order.
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IT IS SO ORDERED.
Dated:
January 13, 2015
UNITED STATES MAGISTRATE JUDGE
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