Klein v. Conanan

Filing 53

ORDER denying Plaintiff's Motions to modify scheduling order and for issuance of subpoena re 50 , 52 signed by Magistrate Judge Gary S. Austin on 6/22/2015. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ORDER DENYING PLAINTIFF’S
MOTIONS TO MODIFY SCHEDULING
ORDER AND FOR ISSUANCE OF
SUBPOENA
(ECF Nos. 50, 52.)

Plaintiff,

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1:13-cv-00600-GSA-PC

MICHAEL KLEIN,

vs.
DR. CONANAN,

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Defendant.

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I.

BACKGROUND

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Michael Klein (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds on the original

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Complaint filed by Plaintiff on April 25, 2013, against defendant Dr. Conanan (“Defendant”)

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for failure to provide adequate medical care in violation of the Eighth Amendment. (ECF No.

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1.) The parties have consented to Magistrate Judge jurisdiction in this action pursuant to 28

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U.S.C. § 636(c). (ECF Nos. 5, 15.)

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On October 8, 2014, the court issued a discovery/scheduling order establishing pretrial

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deadlines for the parties, including a deadline of June 8, 2015 for completion of discovery, and

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a deadline of August 17, 2015 for the filing of pretrial dispositive motions. (ECF No. 28.) On

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June 8, 2015, Plaintiff filed a motion to extend the discovery deadline for six months. (ECF

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No. 50.) On June 10, 2015, Defendant filed an opposition to the motion. (ECF No. 51.) On

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June 18, 2015, Plaintiff filed a motion for the court to issue a subpoena duces tecum to obtain

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medical records. (ECF No. 52.)

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Plaintiff’s motions to extend discovery and for the court to issue a subpoena duces
tecum are now before the court.
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II.

PLAINTIFF’S MOTIONS

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A.

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Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P.

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16(b), and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations,

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Inc., 975 F.2d 604, 609 (9th Cir. 1992). To establish good cause, the party seeking the

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modification of a scheduling order must generally show that even with the exercise of due

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diligence, they cannot meet the requirement of the order. Id. The court may also consider the

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prejudice to the party opposing the modification. Id. If the party seeking to amend the

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scheduling order fails to show due diligence the inquiry should end and the court should not

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grant the motion to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d 1080, 1087

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(9th Cir. 2002). A party may obtain relief from the court=s deadline date for discovery by

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demonstrating good cause for allowing further discovery. Fed. R. Civ. P. 16(b)(4).

Motion To Modify Scheduling Order

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Plaintiff requests extension of the discovery deadline because “Defendant has not

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produced medical records in [their] entirety.” (ECF No. 50.) Defendant argues that Plaintiff’s

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motion should be denied because Plaintiff has complete access to his medical records and

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defense counsel has no ability to obtain records which are not in the file.

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B.

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Plaintiff requests the court to issue a subpoena duces tecum pursuant to Rule 45 of the

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Federal Rules of Civil Procedure to obtain medical records which are not contained in his

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medical file at Avenal State Prison (ASP). Plaintiff seeks unspecified records concerning his

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Hepatitis C from Nevada, between 1990 and 2007, which Plaintiff alleges are relevant to his

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medical treatment at ASP. Plaintiff also seeks a Form 7243, Health Care Services Request

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document.

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III.

Motion For Issuance Of Subpoena

DISCUSSION

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The discovery phase for this case lasted eight months, from October 8, 2014 to June 8,

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2015. A review of the record shows that Plaintiff sought out his medical records even before

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discovery was opened, when he filed a motion on May 19, 2014 seeking to review his medical

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records at ASP. (ECF No. 19.) On May 21, 2015, Defendant responded to Plaintiff’s motion,
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claiming that Plaintiff was scheduled for a review of his medical records to occur on May 22,

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2014. (Decl. of Kelly A. Samson, ECF. No. 21 at 3 ¶7.) Plaintiff did not file a reply to

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Defendant’s response or indicate that he was unable to review his medical records on the

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scheduled date. (See ECF. No. 24.)

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Further, Plaintiff acknowledges that “[o]n or about October 6, 2014, Plaintiff

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request[ed] his medical file from A.S.P.;” on January 9, 2015, Defendant provided medical

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records pursuant to a request for production of documents; and “[o]n all occasions disclosure of

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medical records were provided.” (ECF No. 52 at 1:19-24.) Based on this record, Plaintiff

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knew by January 9, 2015, which documents were available from his medical file at ASP. Now,

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five months later, Plaintiff requests the court to reopen discovery so he can begin another

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search for medical records from 1990-2007, purportedly kept in Nevada.

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Plaintiff has not shown that he used due diligence in attempting to obtain his earlier

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medical records before discovery closed on June 8. Plaintiff provides no explanation why he

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did not attempt before now to discover documents which he knew, in January 2015, were not

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available from his ASP files. Therefore, Plaintiff’s motions shall be denied.

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IV.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

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Plaintiff’s motion to modify the court's Scheduling Order, filed on June 8, 2015,
is DENIED; and

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Plaintiff’s motion for the issuance of a subpoena duces tecum, filed on June 18,
2015, is DENIED.

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IT IS SO ORDERED.
Dated:

June 22, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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