The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER DENYING PLAINTIFF'S REQUEST FOR ISSUANCE OF SUBPOENAS DUCES TECUM AND MOTION TO REOPEN DISCOVERY (Doc. 38.)
Alvin R. Ross ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on December 9, 2008. (Doc. 1.) This action now proceeds on the First Amended Complaint filed by Plaintiff on November 18, 2009, against defendant J. Callow, for retaliation in violation of the First Amendment, and defendant D. Latraille, for assault and battery under state law. (Doc. 9.) Now pending is Plaintiff's renewed request for the issuance of subpoenas duces tecum and motion to reopen discovery. (Doc. 38.)
On June 3, 2011, the Court entered a Discovery/Scheduling Order establishing a deadline of February 3, 2012, for the parties to conduct discovery, including the filing of motions to compel. (Doc. 17.) On August 31, 2011, Plaintiff filed a request seeking the issuance of a subpoena duces tecum commanding non-party Connie Gipson, Warden of Corcoran State Prison, to produce several documents. (Doc. 22.) In the request, Plaintiff asserted that he had engaged in the discovery process with Defendants, and the documents he sought "apparently cannot be presented to Plaintiff for inspection after being requested." (Id.) On February 24, 2012, the Court denied Plaintiff's request, without prejudice to renewal of the request within thirty days. (Doc. 36.) Plaintiff was advised that the Court would "consider granting such a request only if the documents sought from the non-party are not equally available to Plaintiff and are not obtainable from Defendants through a request for production of documents." (Id. at 1-2.) Plaintiff was also advised that in a renewed request, he must "identif[y] with specificity the documents sought and from whom, ... make a showing in the motion that the records are only obtainable through that third party[, and the] documents requested must fall within the scope of discovery allowed in this action." (Id. at 2:8-11.) Because the discovery phase for this action had closed on February 3, 2012, Plaintiff was also advised that if he renewed the request for a subpoena, he should also bring a motion to reopen discovery for this limited purpose.
II. REQUEST FOR ISSUANCE OF SUBPOENAS
A. Plaintiff's Renewed Request
Plaintiff now requests the issuance of two subpoenas duces tecum to be served on non-parties to this action. First, Plaintiff requests a subpoena compelling the Office of Internal Affairs to produce documents, video footage, and any other information created during the investigation following the alleged assault on Plaintiff by defendant Latraille. Plaintiff asserts that on December 18, 2007, the Office of Internal Affairs conducted interviews of Plaintiff and prison staff members regarding the assault at issue which allegedly occurred on November 9, 2007.
Second, Plaintiff requests a subpoena compelling either Matthew Cates (Secretary of the CDCR) or Connie Gipson (Warden of Corcoran State Prison) to produce the contents of defendant
D. Latraille's personnel file for Plaintiff's inspection and copying. Plaintiff seeks to discover "prior complaints against Latraille, including, but not limited to 602 grievance appeals, concerning any form of misuse of force, potential violence; battery; or bad acts to, upon, or against a CDC prisoner." (Motion, Doc. 38 at 3.) Plaintiff seeks evidence of defendant Latraille's "anger issues with prisoners and the propensity for potentially more serious acts and/or actions." Id. Plaintiff argues that this evidence is relevant to his assault and battery claim against defendant Latraille.
In support of his request, Plaintiff submits a copy of the August 8, 2008 Men's Advisory Council Memorandum, which reports that Sergeant D. Latraille made negative and derogatory statements to inmates and has "previously been investigated by Internal Affairs for striking an inmate with unnecessary misuse of force." (Exh. A. to Motion, Doc. 38 at 6-7.)
Plaintiff also brings a motion to reopen discovery for the limited purpose of issuing the subpoenas.
B. Defendants' Opposition
Defendants argue that Plaintiff has not demonstrated diligence under Rule 16's good cause standard to modify the Court's scheduling order to reopen discovery. Defendants assert that because discovery was opened on June 3, 2011, with a deadline of February 3, 2012 to complete discovery, Plaintiff had 200 days to request production of documents from Defendants and 245 days to file a motion to compel. Defendants also argue that Plaintiff has not complied with the Court's requirements to identify with specificity the documents sought and from whom, and to make a showing that the records are only obtainable through the third party. Defendants also argue that it would be futile to grant Plaintiff's request, because it seeks information which would invade the rights to privacy of the defendants and third parties, and which is prohibited by Federal Rules of Evidence § 404 ...