The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
ORDER, FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights complaint filed pursuant to 42 U.S.C. § 1983. Plaintiff's complaint raises two claims against defendant Curtis, who was a Licensed Vocational Nurse (LVN) at Mule Creek State Prison. Plaintiff alleges that defendant Curtis violated plaintiff's civil rights by being deliberately indifferent to his serious medical needs when she was without a "med-pack" during evening pill distribution such that on-site medical treatment could not be performed on plaintiff following an inmate fight. He also asserts that Curtis improperly treated plaintiff several minutes after the prisoner fight and should have referred him to the Triage Treatment and Assessment facility rather than back to his cell.
Presently pending before the court are several motions: plaintiff's motion for an extension of time to file a motion for a subpoena duces tecum; plaintiff's motion for a subpoena duces tecum; plaintiff's motion for an extension of time to file additional evidentiary material in support of his opposition to defendant's motion for summary judgment; and plaintiff's motion for reconsideration of a June 26, 2012 order. Also pending before the court is defendant's motion for summary judgment. For the following reasons, plaintiff's motion for an extension of time to file a motion for a subpoena duces tecum will be granted and his motion for a subpoena duces tecum will be denied. His motion for an extension of time to file additional evidentiary materials will be granted and the materials plaintiff submitted on August 13, 2012 (Dkt. No. 71) will be considered timely. Finally, it is recommended that defendant's motion for summary judgment be granted and that plaintiff's motion for reconsideration of the June 26, 2012 order be denied.
II. PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO FILE A MOTION FOR A SUBPOENA DUCES TECUM AND PLAINTIFF'S MOTION FOR A SUBPOENA DUCES TECUM
On December 9, 2011, defendant filed a motion for summary judgment. Plaintiff filed a response in opposition to defendant's motion for summary judgment. Thereafter, plaintiff filed a motion to compel. Defendant responded to the motion to compel and asserted that the motion was moot. It appeared that the motion to compel and defendant's responses to plaintiff's discovery requests had crossed in the mail. In his reply, plaintiff acknowledged receiving the documents from defendant but claimed that it was not moot as "[a]pparently defendant responded to several of the requests by saying that the documents sought were not in her possession or control but would have to be subpoenaed from the California Department of Corrections and Rehabilitation (CDCR)." (Dkt. 49 at p. 2.) On May 17, 2012 plaintiff's motion to compel was denied. However, he was given twenty-one days to file a motion for the court to issue a subpoena duces tecum directing the CDCR to produce documents.
Pursuant to the prisoner mailbox rule, see Houston v. Lack, 487 U.S. 266, 276 (1988), plaintiff filed a motion for an extension of time to file a motion for subpoena duces tecum on the CDCR on July 16, 2012. Plaintiff also contemporaneously filed a motion for subpoena duces tecum. In his motion for an extension of time to file a motion for subpoena duces tecum, plaintiff asserts that he tried to file his motion for a subpoena duces tecum on or about June 17, 2012 but it was returned by the Clerk on July 11, 2012 pursuant to Local Rule 250.2(c). Local Rule 250.2(c) states that: "Interrogatories, responses, and proofs of service thereof shall not be filed unless and until there is a proceeding in which the interrogatories or proof of service is at issue. When required in a proceeding, only that part of the set of interrogatories and answers that is in issue shall be filed." Defendant argues that the motion for an extension of time to file a motion for a subpoena duces tecum should be denied as untimely as should his motion for a subpoena duces tecum.
While plaintiff's motion for an extension of time to file a motion for a subpoena duces tecum was filed approximately one month after the deadline for him to file a motion for a subpoena duces tecum was due, plaintiff did at least attempt to comply within the confines of the May 17, 2012 order, albeit improperly. While his initial filing did not appear to conform to the Local Rule, he was at least attempting to act diligently. Accordingly, plaintiff's motion for an extension of time to file a motion for subpoena duces tecum will be granted and plaintiff's motion for a subpoena duces tecum will be deemed timely filed.
Pursuant to Federal Rule of Civil Procedure 45(a)(2)(c), a subpoena may direct a non-party to an action to produce documents or other tangible objects for inspection. Because plaintiff is proceeding in forma pauperis, he is generally entitled to obtain service of a subpoena duces tecum by the United States Marshal. See 28 U.S.C. § 1915(d). However, the issuance of a subpoena duces tecum, particularly by the U.S. Marshal, is subject to limitations. As one court has noted:
Proper reliance on a subpoena duces tecum is limited by the relevance standards set forth in Federal Rule of Civil Procedure 26(b)(1)("[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claims or defense"); and considerations of burden and expense set forth in Federal Rules of Civil Procedure 26(b)(2) and 45(c)(1). The "Federal Rules of Civil Procedure were not intended to burden a non-party with a duty to suffer excessive or unusual expenses in order to comply with a subpoena duces tecum." Badman v. Stark, 139 F.R.D. 601, 605 (M.D. Pa. 1991) (requiring indigent plaintiff to demonstrate that he had "made provision for the costs of such discovery"), citing Cantaline v. Raymark Industries, Inc., 103 F.R.D. 447, 450 (S.D. Fla. 1984); see also United States v. Columbia Broadcasting System, Inc., 666 F.2d 364 (9th Cir. 1982) (court may award costs of compliance with subpoena to non-party). Non-parties are "entitled to have the benefit of this Court's vigilance" in considering these factors. Badman, 139 F.R.D. at 605. In addition, this court has generally required that a motion for issuance of a subpoena duces tecum be supported by: (1) clear identification of the documents sought and from whom, and (2) a showing that the records are obtainable only through the identified third party. See, e.g., Davis v. Ramen, 2010 WL 1948560, at *1 (E.D. Cal. 2010); Williams v. Adams, 2010 WL 148703, at *1 (E.D. Cal. 2010).
Heilman v. Lyons, Civ. No. 09-2721, 2010 WL 5168871, at *1 (E.D. Cal. Dec. 13, 2010). The term "relevant" is further defined by the Federal Rules of Civil Procedure as information that is "reasonably calculated to lead to the discovery of admissible evidence," and it "need not be admissible at trial. See FED. R. CIV. P. 26(b)(1). Furthermore, "[d]istrict courts have broad discretion in determining relevancy for discovery purposes." See Surfvivor Media, Inc. v. Survivor Productions, 406 F.3d 625, 635 (9th Cir. 2005).
In support of his motion for the court to issue a subpoena duces tecum on the CDCR, plaintiff states as follows:
On 5-24-12 I received this court's order and findings and recommendations dated 5-17-12 in which it states: pg. 5 ln 11-12 that I have 21 days to submit a motion for subpoena duces tecum. As stated in my request for ext. of time to submit this motion for subpoena duces tecum I made errors and I now re-submit the subpoena duces tecum and ask that this court issue it to the California Dept. of corrections and rehabilitation at Mule Creek State Prison.
I've filled out the form to the best of my abilities with all the information know to me and hope that I've done so correctly.
(Dkt. No. 64 at p. 1.) In this case, plaintiff has not made a showing that the records he seeks are only obtainable through the identified third party, the CDCR. In his reply to his motion to compel, plaintiff alluded to the fact that defendant Curtis responded to some of his requests that she was not in possession of the documents he sought. However, plaintiff does not attach defendant's responses to his discovery requests, nor does he specifically state which requests he made on defendant in which she stated that she was not in possession of the requested documents. Thus, the court cannot adequately discern whether the twenty-two document requests to the CDCR he attaches to his motion are only obtainable from the CDCR. Furthermore, at least some of his requests attached to his motion would be clearly available from Curtis. For example, plaintiff seeks documents from the CDCR related to the training defendant Curtis received prior to and during her employment regarding medical training. (See Pl.'s Mot. Subpoena Duces Tecum at p. 11.) The types of documents/information plaintiff seeks would presumably be available directly from Curtis. Accordingly, the motion for a subpoena duces tecum will be denied.
III. SUMMARY JUDGMENT STANDARD Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c).
Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting FED. R. CIV. P. 56(c)). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See FED. R. CIV. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting FED. R. CIV. P. 56(e) advisory committee's note on 1963 amendments).
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. FED. R. CIV. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to ...