McDaniels v. Preito et al

Filing 41

ORDER Denying 33 Motion to Serve Subpoena and Denying 34 Motion for Extension of Discovery Deadline, signed by Magistrate Judge David W. Christel.**4 PAGE(S), PRINT ALL**(Peter McDaniels, Prisoner ID: 995036)(GMR)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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PETER J. MCDANIELS,

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Plaintiff,
v.

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KATHLEEN PREITO, et al.,

CASE NO. 3:17-cv-05801-RBL-DWC
ORDER DENYING MOTION TO
SERVE AND MOTION FOR
EXTENSION OF DISCOVERY
DEADLINE

Defendants.

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The District Court has referred this action, filed pursuant to 42 U.S.C. § 1983, to United

17 States Magistrate Judge David W. Christel. Plaintiff Peter J. McDaniels, proceeding pro se and
18 in forma pauperis, filed this lawsuit on October 4, 2017. Dkt. 1. Pending before the Court is
19 Plaintiff’s Motion to Serve Subpoena (Dkt. 33) and Motion for Extension of Time (Dkt. 34).
20 After review of the record, both Motions (Dkts. 33, 34) are denied.
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I.

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Plaintiff has filed a Motion to Serve Subpoena, asking the Court to direct the Clerk to

Motion to Serve Subpoena

23 issue subpoenas for video tapes allegedly in possession of Defendants. Dkt. 33. Generally, pro se
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ORDER DENYING MOTION TO SERVE AND
MOTION FOR EXTENSION OF DISCOVERY
DEADLINE - 1

1 parties may be entitled to the issuance of a subpoena commanding the production of documents
2 from a nonparty, subject to certain requirements. See Fed. R. Civ. P. 26(b), 34(c), 45. However,
3 courts “will consider granting such a request only if the documents sought from the nonparty are
4 not equally available to Plaintiff and are not obtainable from Defendant through a request for
5 production.” Sessing v. Sherman, No. 1:13-cv-01684-LJO-MJS (PC), 2016 WL 5093929 at *2
6 (E.D. Cal. July 18, 2016) (citing Fed. R. Civ. P. 34); see also Kitchens v. Tordsen, No. 1:12-cv7 0105-SWI-MJS (PC), 2014 WL 4418108 at *1 (E.D. Cal. Sept. 5, 2014). Before the Court will
8 consider serving a subpoena, a plaintiff must first attempt to acquire the materials through the
9 discovery process and then, if a defendant refuses to produce the discovery, filing a motion to
10 compel. See Sessing, 2016 WL 5093929 at *2; Kitchens, 2014 WL 4418108 at *1.
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Here, Plaintiff requests the Court direct the Clerk to issue subpoenas regarding two

12 surveillance videos allegedly in Defendants’ possession and containing allegedly relevant
13 evidence. Dkt. 33. However, Plaintiff has not shown whether he attempted to utilize the
14 discovery process to acquire these videos and the record reflects Plaintiff has not filed a motion
15 to compel attempting to acquire the videos. See Dkt. 19. Further, Defendants have stated serving
16 the subpoena would be fruitless because the video surveillance Plaintiff requests never existed. 1
17 Dkt. 35. Thus, Plaintiff is not entitled to have the Court direct service of his subpoenas.
18 Therefore, the Court denies Plaintiff’s Motion to Serve Subpoena (Dkt. 33).
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II.

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Pursuant to Federal Rule of Civil Procedure 16(b)(4), a scheduling order may be

Motion for Extension of Time

21 modified for good cause and with the judge’s consent. Plaintiff requests an extension of 90 days
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Plaintiff argues Defendants should be subject to sanctions because he alleges the videos did exist, but
Defendants purposefully destroyed them. Dkt. 39, p. 3. However, Plaintiff has provided no evidence to support this
allegation, and so the Court declines to impose sanctions at this time.
ORDER DENYING MOTION TO SERVE AND
MOTION FOR EXTENSION OF DISCOVERY
DEADLINE - 2

1 because “the defendants have produced ZERO responses” to his discovery requests. Dkt. 34.
2 Defendants responded, stating that they are working with Plaintiff on his discovery requests to
3 see if any outstanding discovery issues can be resolved with supplemental answers. Dkt. 37.
4 They also state they have provided Plaintiff with 743 pages of responsive documents in response
5 to Plaintiff’s 281 discovery requests as of August 20, 2018. Dkt. 38. They further note they
6 received additional discovery requests on August 10, 2018, which they were still processing as of
7 August 20, 2018. Id.
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Based on the record before the Court, an extension of the discovery period is not

9 warranted here. The Court’s original Scheduling Order, filed on December 15, 2017, set the
10 discovery deadline to June 13, 2018. Dkt. 18. Upon a motion from Plaintiff, the Court extended
11 that deadline to September 14, 2018. Dkt. 32. Plaintiff has thus had nine months to complete
12 discovery. Though Plaintiff argues Defendants have not provided him discovery, the evidence
13 submitted by Defendants contradicts that assertion. See Dkt. 37. The record reflects Defendants
14 have consistently worked with Plaintiff to resolve discovery disputes, have already produced
15 substantial discovery, and are continuing to process Plaintiff’s additional discovery requests. The
16 Court thus finds Plaintiff has not shown good cause for an extension of the discovery deadline.
17 Therefore, the Court denies Plaintiff’s Motion for Extension of Time (Dkt. 34).
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ORDER DENYING MOTION TO SERVE AND
MOTION FOR EXTENSION OF DISCOVERY
DEADLINE - 3

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III.

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For the reasons stated herein, Plaintiff’s Motion to Serve Subpoena (Dkt. 33) and Motion

Conclusion

3 for Extension of Time (Dkt. 34) are denied. The discovery deadline remains at September 14,
4 2018, and the dispositive motions deadline remains at October 12, 2018.
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Dated this 19th day of September, 2018.

A

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David W. Christel
United States Magistrate Judge

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ORDER DENYING MOTION TO SERVE AND
MOTION FOR EXTENSION OF DISCOVERY
DEADLINE - 4