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Robert Benyamini v. Debbie Manjuano

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


August 22, 2011

ROBERT BENYAMINI,
PLAINTIFF,
v.
DEBBIE MANJUANO, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER DENYING PLAINTIFF'S MOTION TO COMPEL, WITHOUT PREJUDICE (Doc. 109.) THIRTY DAY DEADLINE TO FILE REQUEST FOR SUBPOENA

I. BACKGROUND

Robert Benyamini ("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. Plaintiff filed the Complaint commencing this action on August 21, 2006. (Doc. 1.) This action now proceeds with the Third Amended Complaint, filed on May 23, 2008, on Plaintiff's Eighth Amendment claims for adverse conditions of confinement, against defendants Debbie Mandujano,*fn1 Deputy Wilcox, Deputy Wilkerson, and Deputy O'Grady.*fn2 (Doc. 35.) Plaintiff is presently incarcerated at the California State Prison-Sacramento ("CSP-SAC").

This case is presently in the discovery phase. On August 11, 2011, Plaintiff filed a motion to compel production of documents. (Doc. 109.)

II. MOTION TO COMPEL

Plaintiff brings a motion for the Court to compel the Stanislaus County Sheriff's Department ("Sheriff's Department") to produce "all documents pertaining to [Plaintiff] dating from August 15, 2002 up to January 22, 2004[, including] all grievance forms and any similar documents." (Motion, Doc. 109.)

Federal Rules of Civil Procedure 26(b), 34(b)(2), 37(a), and 45 Under Rule 26(b) of the Federal Rules of Civil Procedure, "[u]nless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense - including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1).

Rule 34(b)(2) provides, with respect to the production of documents:

(2) Responses and Objections.

(A) Time to Respond. The party to whom the request is directed must respond in writing within 30 days after being served. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.

(B) Responding to Each Item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons.

Fed. R. Civ. P. 34(b)(2).

Pursuant to Rule 37(a), a party propounding discovery may seek an order compelling disclosure when an opposing party has failed to respond or has provided evasive or incomplete responses. Rule 37(a)(3)(B) empowers a propounding party to bring a motion "for an order compelling an answer, designation, production, or inspection . . . if a party fails to answer an interrogatory submitted under Rule 33; or if a party fails to respond that inspection will be permitted -- or fails to permit inspection -- as requested under Rule 34." Fed. R. Civ. P. 37(a)(3)(B)(iii),(iv).

Under Rule 45, any party may serve a subpoena commanding a non-party "to attend and testify; produce designated documents, electronically stored information, or tangible things in that person's possession, custody, or control; or permit the inspection of premises." Fed. R. Civ. P. 45(a)(1). "The issuing court may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena." Fed. R. Civ. P. 45(e).

III. DISCUSSION

Plaintiff seeks a court order compelling the Sheriff's Department to produce documents. Because the Sheriff's Department is not a party to this action, Plaintiff must proceed under Rule 45. Plaintiff has not indicated whether he has already made a request to the Sheriff's Department for the documents he seeks. The Court shall not compel disclosure without evidence that Plaintiff has made a proper request under the Federal Rules, and evidence that the Sheriff's Department has failed to respond or has provided evasive or incomplete responses.

In the event that Plaintiff wishes the Court to issue a subpoena directing the Sheriff's Department to produce documents, Plaintiff must submit a new written request for the Court's consideration. Plaintiff must work within the discovery deadline and should submit such request as soon as possible. A subpoena duces tecum orders a witness to appear and to bring specified documents, records, or things.*fn3 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).

Under some circumstances, the issuance of a subpoena may impose an undue burden or expense. See Fed. R. Civ. P. 45(c)(1). A party responsible for the issuance and service of a subpoena has a duty to avoid imposing undue burden or expenses on a person subject to a subpoena, and the court is required to enforce this duty. Id. If a subpoena fails to allow reasonable time for compliance, or if a subpoena requires a person who is not a party to incur substantial expense or to travel more than one hundred miles from his residence, the court may be required to quash or modify the subpoena. Fed. R. Civ. P. 45(c)(3).

In cases where one party is incarcerated and proceeds in pro per, there are inherent problems with the issuance of a subpoena duces tecum. For example, the plaintiff may be incarcerated in one jurisdiction and the documents housed in another. A prisoner may be transferred from one facility to another during discovery without advance notice. To avoid imposing undue burden or expense, the Court shall require additional information from Plaintiff before sending him a subpoena. Should Plaintiff wish to proceed, he must submit a written request which specifies exactly which documents he is seeking and from whom. The request must be specific enough to determine what Plaintiff seeks. The request cannot be a broadly stated request that amounts to a fishing expedition.

Based on the foregoing, Plaintiff's pending motion to compel shall be denied, with leave to submit a new written request for the Court's consideration. The request must be submitted within thirty days from the date of service of this order and must articulate which documents are sought from which non-party witnesses. Plaintiff is reminded that he must work within the discovery deadline and should submit such request as soon as possible.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion to compel, filed on August 11, 2011, is DENIED, without prejudice;

2. Should Plaintiff wish to proceed with a subpoena, he must submit a new written request for issuance of a subpoena, with information as specified in this order, within thirty days from the date of service of this order; and

3. Failure to comply with this order may result in a recommendation that this action be dismissed.

IT IS SO ORDERED.

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