Chappell v. Duc et al

Filing 51

ORDER denying 43 Motion for assistance with serving his subpoenas signed by Magistrate Judge Allison Claire on 11/21/12. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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REX CHAPPELL,
Plaintiff,

ORDER

vs.

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No. 2:10-cv-2676 KJM AC P

Defendants.

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DUC, et al.,

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/

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

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seeking relief pursuant to 42 U.S.C. § 1983. Before the court is “Plaintiff’s Request for Court’s

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Help in Serving the Attached Subpoena on those Individuals They Are Addressed....” (Doc. No.

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43.) For the reasons given herein, plaintiff’s request is denied.

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Plaintiff asks the court to assist with serving subpoenas directed at: (1) the warden

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at California State Prison, Sacramento, and (2) an unnamed supervisor at “California Department

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of Corrections, Information Systems Branch, Distribution Data Processing Unit.” See Doc. No.

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43 at 3, 6. From Mr. Virga, the warden, plaintiff seeks a roster of inmates who may have

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witnessed the incident which is the subject of this lawsuit. From the unnamed supervisor, he

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seeks the name of another potential witness, as well as copies of rules, regulations, and policies.

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Id.
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On October 1, 2012, the court denied plaintiff’s motion to reopen discovery,
noting in particular that:
[d]iscovery began on May 3, 2012, and ended on August 31,
2012....Plaintiff seeks to reopen discovery in order to ascertain the
identities of various inmates who witnessed the incident in order to obtain
affidavits from the witnesses. Plaintiff seeks this information to counter
the evidence presented by defendant’s declaration in the motion for
summary judgment. However, it is not clear, nor does plaintiff provide
any explanation, why he did not seek to discover this information during
the nearly four month discovery period that has already occurred and
closed. Simply asking to reopen discovery without any explanation why
this was not done before is insufficient.

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See Order filed October 1, 2012, Doc. No. 41 at 1-2.
A moving party must show good cause to modify a Scheduling Order.

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Fed.R.Civ.P. 16(b)(4); see Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir.2002).

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In determining whether good cause exists to reopen discovery, courts may consider a variety of

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factors. See United States ex rel. Schumer v. Hughes Aircraft Co., 63 F.3d 1512, 1526 (9th

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Cir.1995), cert. granted in part, 519 U.S. 926, 117 S.Ct. 293, vacated on other grounds, 520

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U.S.939, 117 S.Ct. 1871 (1997), citing Smith v. United States, 834 F.2d 166, 169 (10th Cir.

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1987). However, a good cause determination focuses primarily on the diligence of the moving

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party in his attempts to complete discovery in a timely manner. Johnson v. Mammoth

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Recreations, Inc., 975 F.2d 604, 609 (9th Cir.1992) (“If [the moving party] was not diligent, the

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inquiry should end.”).

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It would appear from a review of plaintiff’s subpoenas that he is again seeking to

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discover information which he could have obtained during the open discovery period. Plaintiff

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does not address the court’s October 1, 2012 denial in his request, nor, again, does he provide the

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court with any explanation of why he did not seek to discover this information during the now-

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closed discovery period. Plaintiff has failed to establish that there is good cause to modify the

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court’s prior scheduling order in order to allow service of the subpoenas. The motion will

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accordingly be denied.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s request for assistance

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with serving his subpoenas (Doc. No. 43) is denied.

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DATED: November 21, 2012

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_________/s/___________________________
ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE

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AC: rb
chap2676.ord4

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