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Herring v. Clark

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


August 21, 2008

HARVEY HERRING III, PLAINTIFF,
v.
MIKE CLARK, ET. AL., DEFENDANTS.

The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER GRANTING PLAINTIFF'S REQUEST FOR SUBPOENA (Docs. 69, 72)

ORDER FOR CLERK TO SEND BLANK CIVIL SUBPOENA FORM TO PLAINTIFF FOR COMPLETION AND RETURN WITHIN THIRTY DAYS

THIRTY DAY DEADLINE FOR PLAINTIFF TO RETURN SUBPOENA TO COURT

New Discovery Cut-Off Date: 12-15-2008 New Dispositive Motions Deadline: 01-15-2009

Harvey Herring III ("plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. On February 7, 2008 and May 20, 2008, plaintiff filed a request for the court to send him a subpoena duces tecum form to be served on the California Substance Abuse Treatment Facility ("CSATF"), a non-party in this action, to produce documents. Defendants have not filed an opposition.

A subpoena duces tecum orders a witness to appear and to bring specified documents, records, or things.*fn1 Pursuant to Rule 34(a) of the Federal Rules of Civil Procedure, "any party may serve on any other party a request to produce and permit the party making the request . . . to inspect and copy any designated documents . . . which are in the possession, custody or control of the party upon whom the request is served." Fed.R.Civ.P. 34(a)(1). A person not a party to the action may be compelled to produce documents and things or to submit to an inspection as provided in Rule 45. Fed.R.Civ.P. 34( c).

Plaintiff has specified that he seeks the following documents from CSATF:

(1) Any grievance, complaint and/or statement filed by witness #1 William Weir regarding the incident on 7/30/03 in facility C-Building 1;

(2) Any grievance, complaint, statement and/or report submitted by witness #2 C/O Rodriguez regarding the incident on 7/30/03 in facility C-Building 1;

(3) Any grievance, complaint, statement and/or report submitted by witness #3 C/O S. Fane regarding the incident on 7/30/03 in facility C-Building 1;

(4) A complete copy of the 837 Crime/Incident Report;

(5) A complete copy of the 602 complaint filed by plaintiff;

(6) A copy of the findings of the ISU investigation regarding the allegations against defendant Clark resulting from the subject incident on 7/30/03 at CSATF;

(7) Reports of findings of Category 1 Internal Affairs Investigation resulting from the allegations filed against defendant Clark concerning the subject incident on 7/30/03 at CSATF; and

(8) All other documents/reports not specified above, submitted concerning the subject incident and allegations made against defendant Clark resulting from the incident at CSATF, facility C-Building 1 on 7/30/03.

Plaintiff shall be provided an opportunity to go forward with the subpoena. The Clerk of Court shall send to plaintiff an un-issued, blank civil subpoena duces tecum form with sufficient space to list the eight documents specified above. Plaintiff shall complete the subpoena form and return it to the court within thirty days of the date of service of this order. Upon receipt of the completed form, the court shall prepare and issue a subpoena and forward it to the United States Marshal for service. In light of this order, the court shall extend the discovery deadline until December 15, 2008 and the pretrial dispositive motions deadline until January 15, 2009 for all parties to this action.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's request for a civil subpoena form is GRANTED;

2. The Clerk of Court shall send plaintiff an un-issued, blank civil subpoena duces tecum form with sufficient space for plaintiff to list the eight documents specified above;

3. Plaintiff shall complete the subpoena form and return it to the court within thirty days of the date of service of this order;

4. The discovery cut-off date is extended to December 15, 2008 for all parties to this action;

5. The pretrial dispositive motions deadline is extended to January 15, 2009 for all parties to this action; and

6. Plaintiff's failure to comply with this order may result in a recommendation that this action be dismissed.

IT IS SO ORDERED.


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