Trevino v. Dotson et al

Filing 86

ORDER DENYING MOTION by Judge Phyllis J. Hamilton denying 85 Motion to Stay. (Certificate of Service Attached) (kcS, COURT STAFF) (Filed on 6/7/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ROBERT TREVINO, Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No. 15-cv-05373-PJH ORDER DENYING MOTION v. Re: Dkt. No. 85 E. DOTSON, et al., Defendants. 12 13 Plaintiff proceeds with a pro se civil rights action. Defendants filed a motion for 14 summary judgment for failure to exhaust and plaintiff is to file his opposition by June 23, 15 2017. Plaintiff has now filed a motion to stay the proceedings and for an evidentiary 16 hearing. Plaintiff also argues that he is still attempting to obtain discovery. However, the 17 court stayed discovery pending resolution of the exhaustion motion. Many of plaintiff’s 18 discovery requests concern the underlying claims and are not relevant to the exhaustion 19 motion. Plaintiff’s motion is therefore denied. Plaintiff should present his arguments 20 regarding exhaustion in his opposition to summary judgment. Once the summary 21 judgment motion is fully briefed, the court will determine if a hearing is required. 22 Plaintiff has also returned two document subpoena forms for the court to serve. 23 One subpoena involves his efforts to obtain contact information for two unserved 24 defendants that were discussed in the court’s prior order. The court will order that 25 subpoena to be served. The court also informed plaintiff that the subpoenas were not a 26 substitute for discovery. Plaintiff’s second subpoena is for fingerprint evidence and 27 photographs concerning the underlying disciplinary infraction that is the subject of this 28 action. Because discovery is stayed pending resolution of the exhaustion motion, the 1 cou will not serve this subpoena. In addition, the court's authoriza urt s s s ation of a su ubpoena 2 duces tecum requested by an in for rma pauper plaintiff i subject to limitations ris is o s. 3 mitations inc clude the re elevance of the inform f mation sought as well a the burde and as en Lim 4 exp pense to th non-party in providin the requ he y ng uested infor rmation. Fe R. Civ. P. 26, 45. ed. 5 The “Federal Rules of Civil Procedu were no intended to burden a non-party with a ure ot y 6 duty to suffer excessive or unusual expenses in order to comply with a subpoe duces ena 7 tec cum.” Badm v. Star 139 F.R.D. 601, 60 (M.D. Pa man rk, 05 a.1991); see also Unite States v. e ed v 8 Co olumbia Bro oadcasting Sys., Inc., 666 F.2d 36 (9th Cir.1982) (cou may awa costs of 6 64 urt ard f 9 compliance with subpoena to non-p w party). Non n-parties are “entitled t have the benefit of e to e this court's vig s gilance” in considering these fact c g tors. Badm man, 139 F.R.D. at 605 Once the 5. e 11 United States District Court Northern District of California 10 exh haustion motion has been decide plaintiff can seek th evidenc from defe b ed, his ce endants, or r 12 a motion to co m ompel if the informatio has not b e on been provid or throu another subpoena ded ugh a 13 req quest. To the extent plaintiff argu that fing p ues gerprint evi idence and photographs are 14 req quired to ar rgue the exhaustion motion, he sh m hould prese those a ent arguments in his 15 opposition. 16 CONCLU USION 17 1. Plaintiff’s motio for a sta and an e on ay evidentiary h hearing (Do ocket No. 8 is 85) 18 ENIED. DE 19 2. The Clerk shall sign the appropriate portions an provide the subpoe e a nd ena 20 reg garding the unserved defendants to the Unit States M d s ted Marshal wh shall ser ho rve, without t 21 pre epayment of fees, the subpoena on the part listed on the subpoe o ty ena. 22 23 IT IS SO ORDER S RED. Da ated: June 7, 2017 7 24 25 PH HYLLIS J. H HAMILTON N Un nited States District Ju s udge 26 27 \\can ndoak.cand.circ9 9.dcn\data\users\PJHALL\_psp\2 2015\2015_05373 3_Trevino_v_Do otson_(PSP)\15-c cv-05373-PJH-or rd3.docx 28 2 1 UNITED STATES D D DISTRICT C COURT 2 NORTHER DISTRIC OF CALI RN CT IFORNIA 3 4 ROBERT TR REVINO, Case No. 1 15-cv-05373 3-PJH Plaintiff, 5 v. CERTIFIC CATE OF S SERVICE 6 7 E. DOTSON, et al., s. Defendants 8 9 10 I, the un ndersigned, hereby certify that I am an employe in the Offi of the Clerk, U.S. ee ice strict Court, Northern Di istrict of Cal lifornia. Dis United States District Court Northern District of California 11 12 13 14 15 That on June 7, 201 I SERVE a true and correct cop n 17, ED d py(ies) of the attached, b placing by said copy(ies) in a postage paid envelo addressed to the pers i ope d son(s) herein nafter listed, by dep positing said envelope in the U.S. Mail, or by pla d n M acing said co opy(ies) into an inter-off delivery o ffice y rec ceptacle loca in the Cl ated lerk's office. . 16 17 18 Robert Trevino ID: J-6436 67 Sal linas Valley State Prison D4-#130L n P.O Box 1050 O. 0 Sol ledad, CA 93960 19 20 21 Da ated: June 7, 2017 22 23 usan Y. Soon ng Su Cl lerk, United States Distr Court d rict 24 25 26 27 By y:_________ ___________ _______ K Kelly Collins, Deputy Cle to the , erk H Honorable PH HYLLIS J. H HAMILTON N 28 3

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