Carreon v. Abdur-Rahman et al

Filing 36

ORDER signed by Magistrate Judge Kendall J. Newman on 2/6/19 DENYING 35 Request without prejudice. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTONIO CARREON,

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No. 2:17-cv-1292 TLN KJN P

Plaintiff,
v.

ORDER

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S. ABDUR-RAHMAN, et al.,

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Defendants.

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Plaintiff is a state prisoner, proceeding pro se. On February 1, 2019, plaintiff filed a

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request to the Clerk of Court stating he needs the name of his physical therapist, first name Brian,

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who worked at High Desert State Prison and who was a witness in this case. (ECF No. 35.)

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Plaintiff’s motion is denied for the following reasons.

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First, plaintiff is advised that the court may not investigate claims on behalf of litigants.

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Rather, plaintiff must investigate his own claims, including locating parties and witnesses to

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incidents underlying his federal claims. Plaintiff may be able to locate the name of his physical

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therapist by reviewing plaintiff’s medical file at the prison.

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Second, if the identity of the physical therapist is not clear from plaintiff’s medical

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records, he could have sought such information through discovery served on defendants.

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However, under the discovery and scheduling order issued November 27, 2018, such discovery

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requests were to be served no later than January 15, 2019. (ECF No. 34 at 5.) Thus, at this time,
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any discovery request would be untimely.
Third, plaintiff may seek an extension of the discovery deadline, but he must file a formal

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motion, showing good cause and demonstrating that he has been diligent. “The district court is

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given broad discretion in supervising the pretrial phase of litigation.” Johnson v. Mammoth

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Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) (citation and internal quotation marks

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omitted). Rule 16(b) provides that “[a] schedule may be modified only for good cause and with

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the judge’s consent.” Fed. R. Civ. P. 16(b)(4). “The schedule may be modified ‘if it cannot

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reasonably be met despite the diligence of the party seeking the extension.’” Zivkovic v.

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Southern California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (quoting Johnson, 975 F.2d

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at 607).
Plaintiff also asks the Clerk for the “form to fill out for this witness.” (ECF No. 35 at 1.)

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Plaintiff is advised that the court has no “witness form.” If plaintiff is seeking a subpoena form

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for the physical therapist, plaintiff’s request is premature. Under the discovery and scheduling

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order, a subpoena for unincarcerated witnesses who refuse to testify voluntarily are to be

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submitted to the U.S. Marshal not earlier than four weeks and not later than two weeks before

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trial. (ECF No. 34 at 4.) No trial date has been set in this matter, so no subpoena may yet be

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submitted.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s request (ECF No. 35) is denied

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without prejudice.

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Dated: February 6, 2019

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/carr1292.den

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