ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Plaintiff has filed a motion for summary judgment and a motion to quash defendants' subpoenas, and defendants' have requested modification of the discovery and scheduling order. Dckt. Nos. 25, 33, 34. For the reasons that follow, the motions for summary judgment and to quash must be denied. Additionally, good cause exist to grant modification of the scheduling order.
This action proceeds on the verified complaint filed January 14, 2011. Dckt. No. 1. Plaintiff alleges:
I filed a grievance against "physician assistant" Corey and requested she be removed from being in charge of my medical care because 1) she was not a qualified doctor to care for cancer patients 2) she cancelled necessary radiation appointments which showed negligence of life sustaining medical care. K. Cordero and Dr. Firman, the medical supervisor and medical director for Solano County Jail removed PA Corey from my care, yet even when I put in [a] request to be seen by Dr. Firman, their angered response for having P.A. Corey replaced by Dr. Firman was no medical treatment for approximately 2.5 months.
Id. at 3.*fn1 Plaintiff seeks $25 million in damages. Id.
The court's scheduling order, entered on November 16, 2011, required that all requests for discovery pursuant to Federal Rules of Civil Procedure 31, 33, 34 and 36 be served no later than January 9, 2012. Dckt. No. 24 at 4. The order provided a final discovery cut-off date of March 9, 2012. Id.
On February 2, 2012, defendants served subpoenas on Queen of the Valley Hospital, Sutter Solano Medical Center, Coalinga State Hospital, Napa Valley Urology, and Sutter Oncology Center, seeking plaintiff's medical records. Dckt. No. 28, Exs. 1-9. Plaintiff states that he received copies of the subpoenas on February 14, 2012. Dckt. No. 28 at 2.
Plaintiff seeks to quash the subpoenas for his medical records on two grounds. First, he contends that the subpoenas were untimely under the discovery and scheduling order because they were served after January 9, 2012. However, as defendants note, the order did not require that subpoenas under Federal Rule of Civil Procedure 45, such as those at issue here, be served by that date. The subpoenas were served prior to the final discovery deadline, and accordingly defendants did not violate the discovery and scheduling order and there is no basis to quash the subpoenas on that ground.
Second, plaintiff argues that the records are confidential and not relevant to plaintiff's claim, which he characterizes as "not being treated for two and a half months." Dckt. No. 28 at 3. While plaintiff has not specified in his complaint what law he believes the defendants have violated, the undersigned gathers from his motion for summary judgment that he alleges that defendants violated his right under the Fourteenth Amendment to the "minimal civilized measure of life's necessities" as a pre-trial jail detainee by depriving him of necessary medical care. Dckt. No. 25 at 33. This claim places plaintiff's medical records in issue. Those records are relevant to determine, among other things, what conditions plaintiff suffers from, what treatment he required, what treatment he was provided, and what he consequences he suffered from any alleged failure to treat. Accordingly, the motion to quash must be denied. Should plaintiff be concerned about defendants' use of his records, he may work with defense counsel to agree to a protective order governing the records or seek such an order from the court.
Because of the pendency of the motion to quash, defendants have not been able to obtain the documents sought through the subpoenas.Therefore, the court will modify the discovery and scheduling order to extend the discovery cut-off date to 45 days from the date of this order. The deadline for filing dispositive motions shall also be extended to 90 days from the date of this order.
III. Motion for Summary Judgment
A. Summary Judgment Standards
Summary judgment is appropriate when there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant to the determination of the issues in the case, or in which there is insufficient evidence for a jury to determine those facts in favor of the non-movant. Crawford-El v. Britton, 523 U.S. 574, 600 (1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, ...