Heilman v. Wasko, et al

Filing 46

ORDER signed by Magistrate Judge Allison Claire on 3/17/14 ORDERING that Defendants motion to modify the discovery and scheduling order (ECF No. 42 ) is granted as indicated herein; and, Plaintiffs requests for blank subpoena duces tecum forms (ECF Nos. 40 , 45 ) are granted. The Clerk is directed to issue plaintiff two subpoena duces tecum forms, signed but otherwise blank, pursuant to Fed. R. Civ. P. 45.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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THOMAS JOHN HEILMAN,

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No. 2:12-cv-01966-JAM-AC-P

Plaintiff,
v.

ORDER

TODD WASKO, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff proceeds with a single claim that defendant Wasko

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violated his rights under the First Amendment. Currently pending before the court is defendant’s

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motion to modify the discovery and scheduling order, ECF No. 42, and two separate requests for

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blank subpoena duces tecum forms filed by plaintiff. See ECF No. 40, 41.

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In his motion to modify the January 2, 2014 Scheduling Order, defense counsel indicates

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that he is unable to meet the court imposed deadlines referenced in the order due to his present

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work load as well as the tight time frame given by the court. He requests that the current

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discovery deadlines be extended by thirty days so that defendant may serve his own discovery

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requests on plaintiff.

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Pursuant to Rule 16(b)(4), and for good cause shown, the court’s discovery and
scheduling order is hereby modified to reflect the following: (1) all discovery requests pursuant
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to Fed. R. Civ. P. 31, 33, 34, or 36 shall be served up to and including April 25, 2014; (2) the

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deadline for the parties to conduct discovery, and to bring any necessary motions to compel, is

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extended up to and including, June 24, 2014; and (3) the dispositive motions deadline is extended

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up to and including September 22, 2014.

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Also pending before the court are plaintiff’s two separate requests for blank subpoena

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duces tecum forms pursuant to Rule 45(a)(3) of the Federal Rules of Civil Procedure. These

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requests are made in an effort to obtain “documents within the possession, custody, or control of

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prison staff at CMF-Vacaville concerning the claims against T. Wasko.” ECF No. 45 at 1-2. The

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requests will be granted. However, plaintiff is reminded that documents likely to be within the

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possession, custody or control of the defendant personally should be sought through discovery,

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and subpoenas used only to obtain documents that may not be obtained from the defendant. See

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Contardo v. Merrill Lynch, Pierce, Fenner & Smith, 119 F.R.D. 622, 624 (D. Mass. 1988) (for

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purposes of discovery, Rule 34 is directed at parties and Rule 45 is directed at non-parties);

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Swartout v. LaNore, P.A., 2009 WL 1770540 (W.D. Mich. 2009) (same); 9A Wright and Miller:

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Federal Practice and Procedure section 2452 (1995) (stating that “Rule 45 has a close relation to

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the proper functioning of the discovery rules. Most notably, a subpoena is necessary to compel

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someone who is not a party to appear for the taking of the deposition.”).

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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendant’s motion to modify the discovery and scheduling order (ECF No. 42) is

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granted as indicated herein; and,
2. Plaintiff’s requests for blank subpoena duces tecum forms (ECF Nos. 40, 45) are

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granted. The Clerk is directed to issue plaintiff two subpoena duces tecum forms, signed but

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otherwise blank, pursuant to Fed. R. Civ. P. 45.

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DATED: March 17, 2014

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