(PC) Trevino v. Burke et al

Filing 79

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Jeremy D. Peterson on 6/4/2024 DENYING 61 , 72 Motion's to Stay, DENYING 74 Request for Issuance of Subpoena, DENYING 75 Motion for Leave, DENYING 78 Request for Ruling, GRANTING 64 Motion to file late answer and RECOMMENDING 62 Motion to Dismiss be granted and all claims against defendant be dismissed. Defendants have 14 days to answer 16 Amended Complaint. Referred to Judge Daniel J. Calabretta. Objections due with 14 days after being served with these Findings and Recommendations. (Woodson, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

ROBERT TREVINO,

12

Case No. 2:21-cv-01415-DJC-JDP (PC)

Plaintiff,

ORDER

Defendants.

17

DENYING PLAINTIFF’S MOTION TO
STAY DISCOVERY, MOTION TO STAY
AND REQUEST FOR EVIDENTIARY
HEARING, REQUEST FOR SUBPOENA,
MOTION TO CONDUCT FURTHER
DISCOVERY, AND REQUEST FOR
RULING, AND GRANTING
DEFENDANTS’ MOTION FOR LEAVE TO
FILE A LATE ANSWER

18

ECF Nos. 61, 64, 72, 74, 75, & 78

19

FINDINGS AND RECOMMENDATIONS

20

THAT DEFENDANT BURKE’S MOTION
TO DISMISS BE GRANTED

13
14
15
16

21
22

v.
G. BURKE, et al.,

ECF No. 62

23
Plaintiff brings this action alleging that defendants Burke and Jimenez violated his First
24

Amendment right to access the courts. Pending are plaintiff’s motion to stay discovery, motion to

25
stay and request for evidentiary hearing, request for issuance of subpoena, motion for leave to
26
conduct further discovery, and request for ruling. ECF Nos. 61, 72, 74, 75, & 78. Also pending
27

are defendants’ motion to file a late answer and motion to dismiss defendant Burke. ECF Nos. 62

28
1

1

& 64. For the reasons stated hereafter, plaintiff’s motions are denied, defendants’ motion to file a

2

late answer is granted, and I recommend that defendant Burke’s motion to dismiss be granted.

3
Motion to Stay Discovery
4
Plaintiff has filed a motion seeking to stay discovery in light of his second amended
5
complaint, ECF No. 59, which sought to add new claims and defendants. ECF No. 61. I have
6
already considered the second amended complaint and the motions for leave to amend and
7
recommended that they be denied as futile. ECF No. 60. Those recommendations were adopted
8
by the district judge, ECF No. 69, and a stay based on the second amended complaint is,
9
accordingly, unwarranted. This motion is denied.
10
Motion for Leave to File a Late Answer
11

Defendants have moved to file a late answer to plaintiff’s complaint, ECF No. 64, stating

12
that current counsel mistakenly believed that prior counsel had answered the complaint. Id. at 2.
13
They contend that plaintiff will not be prejudiced by the late answer. Plaintiff has opposed the
14
motion, ECF No. 70, but his argument that he has been prejudiced is unavailing. He argues that
15
the failure to file a timely answer prejudiced his discovery efforts, but I cannot follow his
16
arguments on this point. He references the prison administrative remedy process and contends
17

that a defendant “held back the [second] page” of his exhausted remedies, thereby violating the

18
discovery process. Id. at 6. Even if this is true, I can draw no connection between that
19
20

withholding and the lateness of defendants’ answer. Accordingly, I will grant defendants’ motion
and direct them to file an answer within fourteen days of this order’s entry.

21
Motion to Stay and for Evidentiary Hearing
22
Plaintiff has filed a second motion to stay the case and for an evidentiary hearing, arguing
23
that such a proceeding is necessary to resolve the question of whether he exhausted his
24
administrative remedies, whether defendants should be allowed to file a late answer, and whether
25
he should be permitted to file a second amended complaint. ECF No. 72. I disagree. As to
26
whether he exhausted his administrative remedies, defendants have not yet moved to dismiss any
27
claim on that basis. I can consider that issue and, if necessary, hold a hearing when and if they
28
2

1

do. I have already found that leave to file a late answer is warranted for the reasons explained

2

above. Finally, I have already deemed the second amended complaint futile. Accordingly, this

3

motion is denied.

4

Request for Issuance of Subpoena

5

Plaintiff seeks to subpoena surveillance camera footage from defendant Garcia. ECF No.

6

74 at 4-9. He claims that Garcia gave an evasive response when he claimed not to know whether

7

camera footage of an encounter between plaintiff and defendant Burke. Id. at 2. This request will

8

be denied because a subpoena is not an appropriate method of requesting documents from a party

9

to the case. See Slama v. City of Madera, NO. 1:08-cv-00810-AWI-SKO, 2011 U.S. Dist. LEXIS

10

140477, *5 (E.D. Cal. Dec. 7, 2011) (“Plaintiff’s Rule 45 request is improper. Subpoenas are not

11

the proper method by which to seek information from an opposing party.”). Rather, a Rule 45

12

subpoena should be directed to non-parties for information that cannot be readily obtained from a

13

party to the case. See Conroy v. Centurion, No. CV-21-0685-PHX-DJH (DMF), 2022 U.S. Dist.

14

LEXIS 246955, *4 (D. Ariz. Feb. 8, 2022) (“The discovery of documents from a party is not

15

accomplished pursuant to Rule 45, which governs discovery of documents in the possession,

16

custody and/or control of non-parties . . . .”). In light of this ruling, plaintiff’s request for ruling

17

on this motion, ECF No. 78, is also denied.

18
19

Motion for Leave to Conduct Further Discovery
Finally, plaintiff seeks leave to conduct additional discovery. ECF No. 75. He argues that

20

he labored under the impression that he would be granted leave to file his second amended

21

complaint and, thereby, would have additional time to conduct discovery. Id. at 2. Now, with

22

discovery having closed in February 2024 under my scheduling order, he seeks to various items

23

of additional discovery. This motion is denied. First, plaintiff should not have assumed that his

24

motion for leave to amend would be granted. While leave to amend is often given, reliance

25

thereon is not a valid excuse for failing to exercise due diligence in the litigation process.

26

Second, plaintiff had notice of my recommendation that his second amended complaint be

27

rejected as futile in January 2024, ECF No. 60, and could have moved to seek this additional

28

discovery then or, at the very least, shortly after the close of discovery in February 2024. Instead,
3

1

he brought this motion in April 2024. ECF No. 75. Thus, I find that he has failed to show good

2

cause for reopening discovery. See Sheridan v. Reinke, 611 F. App’x 381, 384 (9th Cir. 2015)

3

(“To reopen discovery, Sheridan was required to show good cause, which in turn requires a

4

showing of diligence.”).

5

Motion to Dismiss

6

Defendants have moved to dismiss G. Burke from this action noting that, sadly, this

7

defendant passed away in May 2023. ECF Nos. 53 & 62 at 2. Under Rule 25(a):

8

If a party dies and the claim is not extinguished, the court may
order substitution of the proper party. A motion for substitution
may be made by any party or by the decedent’s successor or
representative. If the motion is not made within 90 days after
service of a statement noting the death, the action by or against the
decedent must be dismissed.

9
10
11
12

Defendants contend that the ninety-day limit for substituting a successor or representative for G.

13

Burke expired on January 19, 2024. ECF No. 62 at 3. Plaintiff never moved to substitute a

14

successor or representative after the notice of death in October 2023. In his opposition to the

15

motion to dismiss, he contends that he failed to do so because defendants frustrated his efforts to

16

learn the identity of the supervising law librarian. ECF No. 67 at 2. This argument is

17

unpersuasive because, even if plaintiff had learned the supervisor’s name, he or she would not be

18

a successor or representative for Burke. At best, they would be a separate defendant in this suit

19

against whom separate claims are brought. And there is, as defendants point out, no respondeat

20

superior liability in a section 1983 action. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.

21

1989).

22

Accordingly, I recommend that defendant Burke be dismissed from this lawsuit.

23

Conclusion

24

Accordingly, it is ORDERED that:

25

1.

Plaintiff’s motions to stay discovery, ECF No. 61, motion to stay, ECF No. 72,

26

request for issuance of a subpoena, ECF No. 74, motion for leave to conduct further discovery,

27

ECF No. 75, and request for ruling, ECF No. 78, are DENIED.

28

2.

Defendants’ motion to file a late answer, ECF No. 64, is GRANTED and their
4

1

answer should be filed within fourteen days of this order’s entry.
Further, it is RECOMMENDED that defendant Burke’s motion to dismiss, ECF No. 62,

2
3

be GRANTED and all claims against this defendant be dismissed.

4

These findings and recommendations are submitted to the United States District Judge

5

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

6

after being served with these findings and recommendations, any party may file written

7

objections with the court and serve a copy on all parties. Such a document should be captioned

8

“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

9

objections shall be served and filed within fourteen days after service of the objections. The

10

parties are advised that failure to file objections within the specified time may waive the right to

11

appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez

12

v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

13
14

IT IS SO ORDERED.

15
Dated:
16
17

June 4, 2024
JEREMY D. PETERSON
UNITED STATES MAGISTRATE JUDGE

18
19
20
21
22
23
24
25
26
27
28
5