UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
April 29, 2011
MOYA, CORRECTIONAL SERGEANT; LOPEZ, CORRECTIONAL OFFICER, ISU; MOYALIZARRAGA, CORRECTIONAL OFFICER; JOHN DOE, ASSOCIATE WARDEN; JOHN AND JANE DOES 1-10, DEFENDANTS.
The opinion of the court was delivered by: Hon. Nita L. Stormes U.S. Magistrate Judge United States District Court
ORDER: (1) DENYING MOTION FOR DISCOVERY WITHOUT PREJUDICE (2) DIRECTING SERVICE ON DEFENDANT
Plaintiff, an inmate currently incarcerated at California State Prison-Los Angeles (CSP-LAC), proceeding pro se and in forma pauperis, filed acivil rights complaint pursuant to 42 U.S.C. § 1983 on December 3, 2010. Plaintiff claims prison officials at Centinela State Prison violated his Eighth and Fourteenth Amendment rights by using excessive force against him, among other things. See Compl. at 7-15, ¶¶ 11-34.
On January 14, 2011, the District Court issued an Order directing the United States Marshal to effect service on Defendants. [Doc. No. 7.] All named Defendants, except for Moya, have been served.
On March 25, 2011, Plaintiff filed a Motion for Discovery pursuant to Federal Rules of Civil Procedure 26(a) and 34(a). However, because an Answer to Plaintiff's Complaint was not due until April 18, 2011, and counsel for Defendants had not yet made an appearance in the case, Plaintiff's motion was premature and the Court denied Plaintiff's motion without prejudice. [Doc. No. 13.] Plaintiff has now filed another motion for discovery. Counsel for Defendants Lopez and Lizarraga has made an appearance and filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). [Doc. No. 14.] Defendant Moya remains unserved.
Plaintiff appears to be requesting that the Court issue an order requiring Defendants to produce certain information, documents, and records. However, Plaintiff must first request discovery from Defendants and if Defendants fail to make a disclosure required by Rule 26(a)*fn1 then Plaintiff may seek a motion to compel. See Fed.R.Civ.P. 37(a)(1) and (a)(3)(A). From the proof of service attached to Plaintiff's motion it does appear Defendants were served with a copy of this motion but it is not clear whether they have had the time to respond or whether they have refused to respond.
In addition, Plaintiff may request issuance of subpoenas from the Clerk of Court pursuant to Rule 45(a)(3). Plaintiff's in forma pauperis status will not relieve him from the payment of fees or expenses associated with the subpoenas. See Tedder v. Odel, 890 F.2d 210, 211-212 (9th Cir. 1989). Plaintiff must first serve the subpoenas, and if the subpoenaed parties do not comply, then Plaintiff may file a motion to compel those parties to comply with the subpoenas.
Defendants have filed a Motion to Dismiss under Rule 12(b)(6), and may be awaiting the ruling on that motion prior to engaging in discovery. A Rule 12(b)(6) dismissal may be based on either a "'lack of a cognizable legal theory' or 'the absence of sufficient facts alleged under a cognizable legal theory.'" Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121-22 (9th Cir. 2008) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). However, a plaintiff's complaint must provide no more than a "short and plain statement of the claim showing that [he] is entitled to relief." (Id.) (citing FED.R.CIV.P. 8(a)(2)). See Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200 (2007) (internal quotation marks omitted)("Specific facts are not necessary; the statement need only give the defendant[s] fair notice of what ... the claim is and the grounds upon which it rests."). Therefore, there would be no benefit to either side in pursuing detailed fact discovery prior to a ruling on this motion.
Plaintiff also states that he has been informed Defendant Moya no longer works at Centinela and requests Moya's current mailing address for purposes of service of the Complaint. In this matter, the Court will direct the United States Marshal to effect service on defendant Moya in the manner described below.
1. Plaintiff's motion for discovery of prison records and other information is premature. Thus, the Court DENIES WITHOUT PREJUDICE Plaintiff's motion.
2. As to Defendant Moya, the Court ORDERS the Attorney General's office to obtain Moya's last known contact information from the CDCR, and provide this information to the U.S. Marshal in a confidential memorandum indicating that the summons and Complaint are to be delivered to the specified address. The Deputy Attorney General assigned to this case shall provide the U.S. Marshal with any such information on or before May 12, 2011. Within forty-five (45) days of receipt of any available addresses from the Deputy Attorney General, the Court ORDERS the U.S. Marshal to serve a copy of Plaintiff's Complaint and summons upon Moya. All costs of service shall be advanced by the United States pursuant to the Court's January 14, 2011 Order directing service pursuant to 28 U.S.C. § 1915(d) and Fed. R. Civ. P. 4(c)(3). [Doc. No. 7.]
IT IS FURTHER ORDERED that the Clerk of the Court provide a copy of: (1) the Court's January 14, 2011 Service Order [doc. no. 7]; (2) this Order; and (3) the Complaint, summons and a blank U.S. Marshal Form 285 to the Deputy Attorney General for purposes of re-attempting service as to Defendant Moya. Both the Deputy Attorney General and the Office of the U.S. Marshal are ORDERED to keep any address provided for Moya strictly confidential. Thus, any such address shall not appear on any U.S. Marshal Form 285, shall not be provided to Plaintiff, and shall not be made part of the Court's record.
In the event that the CDCR does not have an updated address for Moya, the Deputy Attorney General shall file a Declaration with the Court to that effect by no later than May 12, 2011.
IT IS SO ORDERED.