Nguyen v. California Prison Health Service, et al.

Filing 49

ORDER signed by Magistrate Judge Edmund F. Brennan on 8/4/16 ORDERING that 46 Motion for Extension is GRANTED as follows: Plaintiff may conduct discovery until October 21, 2016. Any motions necessary to compel discovery shall be filed by that d ate. All requests for discovery pursuant to Fed. R. Civ. P. 31, 33, 34, or 36 shall be served not later than August 19, 2016. Plaintiff's request for a subpoena form (ECF No. 47 ) is granted to the extent that the Clerk of the Court shall send plaintiff a blank subpoena form.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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NAM BA NGUYEN,

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No. 2:13-cv-963-MCE-EFB P

Plaintiff,
v.

ORDER

CALIFORNIA PRISON HEALTH
SERVICE, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. He has filed a motion to modify the discovery and scheduling order and a request

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for a form subpoena to produce documents. Defendants have not responded to either motion. As

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explained below, both motions are granted in part.

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Plaintiff’s unopposed motion to modify the schedule in this action (ECF No. 46) is

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granted as follows: Plaintiff may conduct discovery until October 21, 2016. Any motions

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necessary to compel discovery shall be filed by that date. All requests for discovery pursuant to

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Fed. R. Civ. P. 31, 33, 34, or 36 shall be served not later than August 19, 2016.

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Federal Rule of Civil Procedure 45(a)(3) requires that “[t]he clerk must issue a subpoena,

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signed but otherwise in blank, to a party who requests it.” Therefore, the Clerk of the Court will

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be directed to send plaintiff a blank subpoena form.
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The court notes, however, that before issuing a subpoena, the court must ensure that the

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party serving it takes “reasonable steps to avoid imposing undue burden or expense on a person

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subject to the subpoena.” Fed. R. Civ. P. 45(c)(1). Federal Rule of Civil Procedure 45(b)

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requires personal service of a subpoena and “[d]irecting the Marshal’s Office to expend its

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resources personally serving a subpoena is not taken lightly by the court.” Austin v. Winett, 1:04-

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cv-05104-DLB PC, 2008 U.S. Dist. LEXIS 103279, at *2 (E.D. Cal. Dec. 11, 2008); 28 U.S.C.

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§ 1915(d).

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Therefore, if plaintiff moves to have the U.S. Marshal serve a subpoena, he must first

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show that the documents he requests are not equally available to him and are not obtainable from

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defendants through a properly served request for production. See Fed. R. Civ. P. 34. If plaintiff

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can make the requisite showing, then he must submit to the court a completed subpoena form and

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the appropriate fee. The form must describe the items to be produced with reasonable

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particularity and designate a reasonable time, place, and manner for production. Plaintiff must

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also explain the relevance of the information sought and describe the burden and expense to the

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non-party in providing the requested information.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s unopposed motion to modify the schedule in this action (ECF No. 46) is

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granted as follows: Plaintiff may conduct discovery until October 21, 2016. Any

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motions necessary to compel discovery shall be filed by that date. All requests for

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discovery pursuant to Fed. R. Civ. P. 31, 33, 34, or 36 shall be served not later than

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August 19, 2016.

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2. Plaintiff’s request for a subpoena form (ECF No. 47) is granted to the extent that the
Clerk of the Court shall send plaintiff a blank subpoena form.
DATED: August 4, 2016.

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