Schrubb v. Lopez et al

Filing 25

ORDER INSTRUCTING CLERK TO ISSUE SUBPOENAS. Signed by Judge Jeffrey S. White on 8/12/13. (jjoS, COURT STAFF) (Filed on 8/12/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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KEVIN R. SCHRUBB,
Plaintiff,

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vs.
A.S. LOPEZ; M. BRYANT,
Defendants.

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No. C 12-0418 JSW (PR)
ORDER INSTRUCTING CLERK TO
ISSUE SUBPOENAS

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Plaintiff, an California prisoner, filed a pro se civil rights complaint under 42

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U.S.C. 1983 based on an incident that took place at Pelican Bay State Prison (“PBSP”).

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The case was dismissed without prejudice under Rule 4(m) of the Federal Rules of Civil

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Procedure because Plaintiff had not served Defendants, provided their correct names and

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location to enable the Marshal to serve them, or shown good cause for his failure to do so.

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Plaintiff has filed a motion for reconsideration of the dismissal order under Rule 60(b).

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Plaintiff was issued subpoenas so that he could seek from third parties information

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about the identity and location of Defendants. Plaintiff has shown in his motion for

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reconsideration that a Rules Violation Report (“RVR”) issued in 2007 against his then-

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cellmate, Leon Davis, may contain the names of the Defendants. It appears from the

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PBSP Litigation Coordinator’s response to Plaintiff’s initial subpoena to the PBSP

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Warden that there is no record of such an RVR. (Mot. Rec. Ex. B.) It is conceivable that

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is not the case, however, for two reasons: in the subpoena Plaintiff had erroneously

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identified of the year of the RVR as 2011, and while the Litigation Coordinator states that

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there is no record of any “disciplinary action” against Davis, he does not clearly state that

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there is no RVR against Davis. Plaintiff states that he sent a “re-issued” subpoena to the

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Warden on October 2, 2012, attempting to clarify these two points, but he received no

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response; the lack of response may be because the re-issued subpoena did not adhere to

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the requirements of Rule 45.

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Accordingly, before the motion for reconsideration will be decided, the Clerk will
issue an additional subpoena for Plaintiff to attempt to obtain the RVR he seeks. Good

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cause appearing, and pursuant to Federal Rules of Civil Procedure 34(c) and 45(a)(3), the

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Clerk of Court shall forthwith issue a signed but otherwise blank subpoena to Plaintiff.

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Plaintiff shall forthwith complete the subpoena and serve it upon the PBSP Warden in

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accordance with the requirements of Rule 45. If Plaintiff does not Court the names of the

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Defendants, or show cause why not, on or before September 30, 2013, the motion for

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reconsideration will be denied.

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IT IS SO ORDERED.
DATED: August 12, 2013

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JEFFREY S. WHITE
United States District Judge

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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KEVIN R. SCHRUBB,

Case Number: CV12-00418 JSW

Plaintiff,

CERTIFICATE OF SERVICE

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v.
A.S. LOPEZ et al,
Defendant.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on August 12, 2013, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Kevin R. Schrubb V-55932
Salinas Valley State Prison
P.O. Box 1050
Soledad, CA 93960-1050
Dated: August 12, 2013
Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk