Melvin v. Naylor et al

Filing 17

ORDER - the order of United States Magistrate Judge Gates at docket entries 11 and 14 are AFFIRMED. Plaintiff's motions for issuance of subpoenas [DE 13 & 16] are DENIED. As the docket does not reflect that service has been effected on de fendants and more than 120 days have passed since the filing of the complaint, the clerk is DIRECTED to provide notice to plaintiff under Rule 4(m) of the Federal Rules of Civil Procedure. Signed by District Judge Terrence W. Boyle on 5/4/2015. Order mailed to plaintiff via US Mail at 4949 Fieldcrest Drive, Fayetteville, NC 28302. (Marsh, K)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:14-CV-486-BO

PAMELA MELVIN

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Plaintiff,

ORDER

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TRACY NAYLOR and GUARDIAN HART)
MEDICAL CARE,
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Defendants.

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This matter is before the Court on plaintiffs appeal of U.S. Magistrate Judge decision,
motion for issuance of subpoena to Labcorp, and motion to issue subpoenas to the Social
Security Administration.

BACKGROUND
Plaintiff, proceeding prose, filed this action alleging that defendant Naylor, a nurse
practitioner employed by Guardian Hart Medical Care, wrote a fraudulent medical record which,
in violation of 42 U.S.C. § 1981, caused plaintiffto be denied medical treatment. Plaintiff seeks
damages in excess of $1,000,000. Subsequent to filing her complaint but prior to an appearance
by defendants, plaintiff seeks to have subpoenas issued to defendants as well as the
Commissioner of the Social Security Administration and LabCorp. United States Magistrate
Judge James E. Gates denied plaintiffs first ex parte motion for issuance of subpoenas to
defendants as premature, and denied her motion for reconsideration of that order and request to

file an interlocutory appeal to the court of appeals. Plaintiff then appealed Judge Gates' orders to
the undersigned district judge.
DISCUSSION
Federal Rule of Civil Procedure 72(a) provides that, where a non-dispositive pretrial
matter is referred to a magistrate judge, a party may file objections to the magistrate judge's
order within fourteen days after being served with a copy ofthe order. See also Local Civil Rule
72.4(a). The district judge to whom the case is assigned shall"consider timely objections and
modify or set aside any portion of the order that is clearly erroneous or is contrary to law." Fed.
R. Civ. P. 72(a). Under the clearly erroneous standard, the magistrate judge's decision must be
affirmed unless the district court's review results in the "definite and firm conviction that a
mistake has been committed." United States v. US. Gypsum Co., 333 U.S. 364, 395 (1948).
The Court finds no part of Judge Gates' orders to be clearly erroneous or contrary to law.
In point of fact, it is for the same reasons discussed in Judge Gates' orders that the Court denies
plaintiffs motions for issuance of subpoenas to the Commissioner of Social Security and
LabCorp. Rule 26 ofthe Federal Rules of Civil Procedure provides that "a party may not seek
discovery from any source before the parties have conferred as required by Rule 26(f) .... " Fed.
R. Civ. P. 26(d). The docket in this matter does not reflect that service has been effected on
defendants or that any Rule 26 conference has occurred. Accordingly, plaintiffs pending
motions are appropriately denied as premature.
CONCLUSION
For the foregoing reasons, the order of United States Magistrate Judge Gates at docket
entries 11 and 14 are AFFIRMED. Plaintiffs motions for issuance of subpoenas [DE 13 & 16]
are DENIED. As the docket does not reflect that service has been effected on defendants and

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more than 120 days have passed since the filing of the complaint, the clerk is DIRECTED to
provide notice to plaintiff under Rule 4(m) of the Federal Rules of Civil Procedure.

SO ORDERED, this$_ day of May, 2015.

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Jurn:
UNITED STATES DISTRICT

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