Crawford v. Beard

Filing 66

ORDER by Magistrate Judge Maria-Elena James denying 62 Motion ; granting 63 Motion for Leave to File Sur-Reply. (Attachments: # 1 Certificate/Proof of Service)(rmm2S, COURT STAFF) (Filed on 3/9/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JAMES DARREN CRAWFORD, Case No. 14-cv-05578-MEJ Plaintiff, 8 ORDER DENYING REQUEST TO SERVE SUBPOENA AND GRANTING LEAVE TO FILE SUR-REPLY v. 9 10 JEFFREY BEARD, et al., Re: Dkt. Nos. 62, 63 Defendants. United States District Court Northern District of California 11 12 13 Plaintiff, a California state prisoner currently incarcerated at Calipatria State Prison and 14 proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983, complaining of civil 15 rights violations at Pelican Bay State Prison (“PBSP”), where he was previously housed. Plaintiff 16 has requested that the Court certify and serve a subpoena duces tecum on Warden Clark E. Ducart 17 (Dkt. No. 62) and requested leave to file an objection to Defendants’ reply brief in support of their 18 motion to dismiss and for summary judgment (Dkt. No. 63). 19 Plaintiff’s request that the Court certify and serve the proposed subpoena duces tecum on 20 Warden Clark E. Ducart, a non-party to this case, is DENIED. Dkt. No. 62. Before issuing a 21 subpoena, the court must ensure that the party serving it takes “reasonable steps to avoid imposing 22 undue burden or expense on a person subject to the subpoena.” Fed. R. Civ. P. 45(d)(1). “A 23 motion for issuance of a subpoena duces tecum should be supported by clear identification of the 24 documents sought and a showing that the records are obtainable only through the identified third 25 party.” Scofield v. Ball, No. 11cv378 WMC, 2013 6061983, at *2 (S.D. Cal. Nov. 15, 2013); see 26 also Flournoy v. Maness, No. 2:11-2844 EFB, 2016 WL 6493970, at *1 (E.D. Cal. Nov. 2, 2016) 27 (denying request for subpoena where plaintiff had failed to demonstrate that documents were not 28 obtainable from defendant through discovery). The Court has reviewed Plaintiff’s proposed 1 subpoena to Warden Ducart and many of the requests for productions duplicate the requests for 2 productions or interrogatories already served on Defendants. For example, RFP No. 4 to Warden 3 Ducart is similar to RFP No. 2 served on all defendants; RFP No. 5 to Warden Ducart is similar to 4 RFP No. 3 served on all defendants; and RFP No. 8 to Warden Ducart is similar to RFP No. 9 5 served on all defendants. Accordingly, the Court will DENY Plaintiff’s request to have the U.S. 6 Marshal serve the proposed subpoena. To the extent that Plaintiff has so far been unable to obtain 7 the requested documents from Defendants, the Court agrees with Defendants that Plaintiff should 8 use the meet-and-confer process and, if necessary, motions practice to address his discovery 9 concerns. If, however, Plaintiff can make a showing that Warden Ducart is in possession of documents that cannot be produced by Defendants, Plaintiff may file a new motion seeking leave 11 United States District Court Northern District of California 10 to file a subpoena that seeks only those documents which may only be obtained from Warden 12 Ducart. Plaintiff is reminded that he must designate a reasonable time, place, and manner for 13 production of the requested documents. Fed. R. Civ. P. 45(a)(1)(iii). 14 Plaintiff has also requested leave to file an objection to Defendants’ reply brief in support 15 of their motion to dismiss and for summary judgment. Dkt. No. 63. The Court will construe this 16 motion as a request to file a sur-reply. In the interests of justice, the Court will GRANT this 17 motion. The pleading filed at Docket No. 63 will be considered as a sur-reply in opposition to 18 Defendants’ motion to dismiss and for summary judgment. 19 This order terminates Docket Nos. 62 and 63. 20 IT IS SO ORDERED. 21 22 23 Dated: March 9, 2017 ______________________________________ MARIA-ELENA JAMES United States Magistrate Judge 24 25 26 27 28 2

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