Bracamontes v. Moya et al
Filing
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ORDER denying without prejudice 15 Motion for Reconsideration of 12 Motion for Discovery and Directing Service on Defendant Moya. Signed by Magistrate Judge Nita L. Stormes on 4/29/11. (Sent forms as directed) (All non-registered users served via U.S. Mail Service) (cc: Marshal)(rlu) Modified text on 4/29/2011 (rlu).
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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CHRISTIAN BRACAMONTES,
CASE NO. 10cv2512-H (NLS)
Plaintiff,
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ORDER:
vs.
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(1) DENYING MOTION FOR
DISCOVERY WITHOUT PREJUDICE
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(2) DIRECTING SERVICE ON
DEFENDANT MOYA
MOYA, Correctional Sergeant;
LOPEZ, Correctional Officer, ISU;
LIZARRAGA, Correctional Officer;
JOHN DOE, Associate Warden;
JOHN and JANE DOES 1-10,
Defendants.
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INTRODUCTION
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Plaintiff, an inmate currently incarcerated at California State Prison-Los Angeles (CSP-LAC),
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proceeding pro se and in forma pauperis, filed a civil rights complaint pursuant to 42 U.S.C. § 1983
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on December 3, 2010. Plaintiff claims prison officials at Centinela State Prison violated his Eighth
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and Fourteenth Amendment rights by using excessive force against him, among other things. See
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Compl. at 7-15, ¶¶ 11-34.
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On January 14, 2011, the District Court issued an Order directing the United States Marshal
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to effect service on Defendants. [Doc. No. 7.] All named Defendants, except for Moya, have been
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served.
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10cv2512-H (NLS)
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On March 25, 2011, Plaintiff filed a Motion for Discovery pursuant to Federal Rules of Civil
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Procedure 26(a) and 34(a). However, because an Answer to Plaintiff’s Complaint was not due until
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April 18, 2011, and counsel for Defendants had not yet made an appearance in the case, Plaintiff’s
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motion was premature and the Court denied Plaintiff’s motion without prejudice. [Doc. No. 13.]
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Plaintiff has now filed another motion for discovery. Counsel for Defendants Lopez and Lizarraga
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has made an appearance and filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure
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12(b)(6). [Doc. No. 14.] Defendant Moya remains unserved.
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DISCUSSION
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Plaintiff appears to be requesting that the Court issue an order requiring Defendants to
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produce certain information, documents, and records. However, Plaintiff must first request discovery
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from Defendants and if Defendants fail to make a disclosure required by Rule 26(a)1 then Plaintiff may
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seek a motion to compel. See Fed.R.Civ.P. 37(a)(1) and (a)(3)(A). From the proof of service attached
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to Plaintiff’s motion it does appear Defendants were served with a copy of this motion but it is not
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clear whether they have had the time to respond or whether they have refused to respond.
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In addition, Plaintiff may request issuance of subpoenas from the Clerk of Court pursuant to
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Rule 45(a)(3). Plaintiff’s in forma pauperis status will not relieve him from the payment of fees or
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expenses associated with the subpoenas. See Tedder v. Odel, 890 F.2d 210, 211-212 (9th Cir. 1989).
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Plaintiff must first serve the subpoenas, and if the subpoenaed parties do not comply, then Plaintiff
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may file a motion to compel those parties to comply with the subpoenas.
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Defendants have filed a Motion to Dismiss under Rule 12(b)(6), and may be awaiting the
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ruling on that motion prior to engaging in discovery. A Rule 12(b)(6) dismissal may be based on
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either a “‘lack of a cognizable legal theory’ or ‘the absence of sufficient facts alleged under a
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cognizable legal theory.’” Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121-22 (9th
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Cir. 2008) (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)).
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However, a plaintiff’s complaint must provide no more than a “short and plain statement of the
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claim showing that [he] is entitled to relief.” (Id.) (citing FED.R.CIV.P. 8(a)(2)). See Erickson v.
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Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200 (2007) (internal quotation marks omitted)(“Specific
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Rule references are to the Federal Rules of Civil Procedure.
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facts are not necessary; the statement need only give the defendant[s] fair notice of what ... the
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claim is and the grounds upon which it rests.”). Therefore, there would be no benefit to either side
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in pursuing detailed fact discovery prior to a ruling on this motion.
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Plaintiff also states that he has been informed Defendant Moya no longer works at
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Centinela and requests Moya’s current mailing address for purposes of service of the Complaint.
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In this matter, the Court will direct the United States Marshal to effect service on defendant Moya
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in the manner described below.
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CONCLUSION
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1.
Plaintiff’s motion for discovery of prison records and other information is
premature. Thus, the Court DENIES WITHOUT PREJUDICE Plaintiff’s motion.
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2.
As to Defendant Moya, the Court ORDERS the Attorney General’s office to
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obtain Moya’s last known contact information from the CDCR, and provide this information to the
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U.S. Marshal in a confidential memorandum indicating that the summons and Complaint are to be
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delivered to the specified address. The Deputy Attorney General assigned to this case shall
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provide the U.S. Marshal with any such information on or before May 12, 2011. Within forty-five
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(45) days of receipt of any available addresses from the Deputy Attorney General, the Court
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ORDERS the U.S. Marshal to serve a copy of Plaintiff’s Complaint and summons upon Moya.
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All costs of service shall be advanced by the United States pursuant to the Court’s January 14,
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2011 Order directing service pursuant to 28 U.S.C. § 1915(d) and Fed. R. Civ. P. 4(c)(3). [Doc.
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No. 7.]
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IT IS FURTHER ORDERED that the Clerk of the Court provide a copy of: (1) the
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Court’s January 14, 2011 Service Order [doc. no. 7]; (2) this Order; and (3) the Complaint,
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summons and a blank U.S. Marshal Form 285 to the Deputy Attorney General for purposes of re-
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attempting service as to Defendant Moya. Both the Deputy Attorney General and the Office of the
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U.S. Marshal are ORDERED to keep any address provided for Moya strictly confidential. Thus,
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any such address shall not appear on any U.S. Marshal Form 285, shall not be provided to
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Plaintiff, and shall not be made part of the Court’s record.
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10cv2512-H (NLS)
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In the event that the CDCR does not have an updated address for Moya, the Deputy
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Attorney General shall file a Declaration with the Court to that effect by no later than May 12,
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2011.
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IT IS SO ORDERED.
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DATED: April 29, 2011
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Hon. Nita L. Stormes
U.S. Magistrate Judge
United States District Court
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