Arzaga v. Santiago et al

Filing 72

ORDER signed by Magistrate Judge Kendall J. Newman on 3/11/2021 GRANTING plaintiff an additional 90 days to serve process on defendants E. Santiago, Haluik, and A. Victoriano; and DENYING plaintiff's 70 motion filed 3/5/2021. (Yin, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

DANIEL ARZAGA,

12

Plaintiff,

13
14

No. 2:18-cv-0313 KJM KJN P

v.

ORDER

E. SANTIAGO, et al.,

15

Defendants.

16
Plaintiff is a state prisoner, proceeding pro se and in forma pauperis. Two filings are

17
18

before the court.

19

Background
On July 2, 2020, the undersigned issued a discovery and scheduling order which provided

20
21

that discovery would close on November 3, 2020. (ECF No. 48.) On December 1, 2020,

22

plaintiff’s motion to stay discovery was denied, and the discovery deadline was extended until

23

March 1, 2021, solely for the purpose of locating and serving defendants Santiago, Victoriano,

24

and Haluik, and to resolve any motion to compel further responses to plaintiff’s August 15, 2020

25

request for production of documents. (ECF No. 64.) The court confirmed that in all other

26

respects, the July 2, 2020 scheduling order remained in effect; discovery is closed, and the pretrial

27

motions deadline was extended to June 1, 2021. (Id.)

28

////

1
2

Service of Process on Defendants Santiago, Haluik, and Victoriano
On March 1, 2021, plaintiff submitted three USM-285 forms for service on defendants E.

3

Santiago, Haluik, and A. Victoriano. However, rather than provide a current address for such

4

defendants, plaintiff requested that the U.S. Marshal serve Robert Tripp, Supervisor of Special

5

Agents in Charge, at the United States Department of Justice, Federal Bureau of Investigations.

6

(ECF No. 69.) Plaintiff is advised that the U.S. Department of Justice and the FBI are not

7

responsible for investigating addresses for service of process by pro se prisoners. Rather, as

8

plaintiff was previously informed, it is incumbent upon him to locate individuals he seeks to serve

9

as defendants in plaintiff’s civil rights action.

10

Nevertheless, following review of the record, the court has, by separate order, directed re-

11

service of process on such defendants through the court’s E-Service pilot program for civil rights

12

cases. In light of such effort, the court again extends plaintiff’s time for service of process on

13

such defendants for 90 days from the date of this order. Fed. R. Civ. P. 4(m).

14

Objections

15

Plaintiff’s filing is not clear, primarily because he seeks a motion based on his right to

16

confront witnesses in the context of discovery. The Sixth Amendment right of confrontation

17

applies only to criminal prosecutions. United States v. Hall, 419 F.3d 980, 985-86 (9th Cir.

18

2005). To the extent plaintiff seeks reconsideration of the court’s order denying plaintiff’s

19

motion to compel, such request is untimely. Local Rule 303(b), states “rulings by Magistrate

20

Judges . . . shall be final if no reconsideration thereof is sought from the Court within fourteen

21

days . . . from the date of service of the ruling on the parties.” Id. Thus, if plaintiff intended to

22

seek reconsideration of the January 27, 2021 order, such request is untimely because it was not

23

filed until March 5, 2021.

24

Nevertheless, plaintiff also misquotes the court’s scheduling order by omitting the second

25

sentence of paragraph 6. While the scheduling order did provide a discovery deadline of

26

November 3, 2020, the court ordered as follows:

27
28

6. The parties may conduct discovery until November 3, 2020. Any
motions necessary to compel discovery shall be filed by that date. All
requests for discovery pursuant to Fed. R. Civ. P. 31, 33, 34 or
2

1

36 shall be served not later than sixty days prior to that date.

2

(ECF No. 48 at 5 (emphasis added).) Thus, plaintiff’s request for admissions was propounded too

3

late under the scheduling order, as explained in the January 27, 2021 order. (ECF No. 68 at 2-3.)

4

It appears that plaintiff believes the court arbitrarily issued its scheduling order, “creating a statute

5

of limitations.” (ECF No. 70 at 1.) However, Rule 16(b)(1) of the Federal Rules of Civil

6

Procedure expressly requires the court to issue a scheduling order. Id. (unless exempt by local

7

rule, the judge “must issue a scheduling order.”)
Moreover, plaintiff has now provided copies of his requests for admissions.1 None of

8
9

plaintiff’s requests attempted to obtain information concerning the location of defendants E.

10

Santiago, Haluik, and A. Victoriano. Therefore, such discovery requests did not fall within the

11

narrow exception set forth in the court’s December 1, 2020 order. (ECF No. 64.)
Because plaintiff is not entitled to relief based on his March 5, 2021 filing, his “motion” is

12
13

denied.

14

Accordingly, IT IS HEREBY ORDERED that:

15

1. Plaintiff is granted an additional 90 days from the date of this order to serve process on

16

defendants E. Santiago, Haluik, and A. Victoriano; and
2. Plaintiff’s March 5, 2021 motion (ECF No. 70) is denied.

17
18

Dated: March 11, 2021

19
20
/arza0313.objs

21
22
23
24
25
26
27
28

1

In addition, plaintiff provided 23 pages of court orders and other documents filed in the court
record. (ECF No. 70 at 27-50.) Plaintiff is advised that all orders and filings by the parties are
retained in the court’s docket. Therefore, plaintiff is not required to re-submit such documents.
Plaintiff should refrain from doing so in the future.
3