IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
December 7, 2012
MARCUS LEWIS CLEWIS, PLAINTIFF,
CALIFORNIA PRISON HEALTH CARE SERVICES, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Allison Claire United States Magistrate Judge
Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. By this order, the court will address plaintiff's motion for the court to have a subpoena served on his behalf by the U.S. Marshal upon non-party University of California Davis Medical Center (UCDMC). The motion was filed on July 30, 2012 (Doc. No. 61); defendant Mercy Hospital of Folsom (MHF) filed an opposition on August 10, 2012 (Doc. No. 63). By his request, plaintiff seeks a copy of each x-ray taken at UCDMC of plaintiff's left wrist fracture on May 27th and May 28th, 2008, which he states he needs to show that the fracture he suffered was severe enough to have warranted emergency treatment which he alleges defendant MHF failed to assure he was provided. See Doc. No. 61.
In opposition, defendant MHF correctly observes that discovery was
closed as of June 15, 2012. See Doc. No. 63, citing the court's
Discovery and Scheduling Order, filed on March 5, 2012 (Doc. No.59).
Plaintiff indicates that, on June 3, 2012, he sent a letter and signed
authorization for the release of his medical information to UCDMC for
release of copies of the x-rays to himself but did not receive a
response. Doc. No. 61, p. 2. As defendant MHF observes, however,
plaintiff does not show why he failed to seek to have the x-rays from
UCDMC subpoenaed until more than a month after the close of discovery.
Nor does plaintiff even provide a completed subpoena which he wishes
to be served. Even application of the mailbox rule,*fn1
by which the motion can be deemed to have been filed on July
22, 2012, does not render the motion timely. The motion will be
denied; however, the denial is without prejudice. Should this matter
proceed to trial following adjudication of defendant MHF's pending
summary judgment motion, plaintiff may renew his request to have a
subpoena for his medical records served upon UCDMC.
Accordingly, IT IS HEREBY ORDERED that plaintiff's untimely motion for the court to order service of a subpoena upon a non-party, filed on July 30, 2012 (Doc. No. 61), is denied without prejudice to plaintiff's renewal of the request as set forth above.