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Perry Robert Avila v. Matthew Cate

January 31, 2013

PERRY ROBERT AVILA,
PLAINTIFF,
v.
MATTHEW CATE, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER (1) GRANTING PLAINTIFF'S MOTION TO COMPEL AND REQUIRING DOCUMENT PRODUCTION, (2) REQUIRING PLAINTIFF, CDCR, AND CCI TO MEET AND CONFER REGARDING DOCUMENT DISPUTE, (3) REQUIRING STATUS REPORTS WITHIN SIXTY DAYS IF DOCUMENT DISPUTE CANNOT BE RESOLVED, AND (4) REQUIRING CDCR AND CCI TO SHOW CAUSE WHY THEY SHOULD NOT BE HELD IN CONTEMPT FOR FAILING TO COMPLY WITH THE SUBPOENA DUCES TECUM (Doc. 51)

Document Production Deadline: 30 days Meet and Confer Deadline: 30 days Status Report Deadline: 60 days OSC Response Deadline: 30 days

I. Procedural History

Plaintiff Perry Robert Avila, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on May 26, 2009. This action is proceeding against Defendants Meadors, Sullivan, Jones, Gonzalez, and Peterson for violation of the Equal Protection Clause of the Fourteenth Amendment. (Docs. 1, 8.)

The discovery phase of this litigation commenced on May 3, 2010, and it is now closed with the exception of Plaintiff's four requests for the production of documents, which have been the subject of multiple motions to compel. (Docs. 16, 49.) Defendants' motion for summary judgment, filed on March 7, 2011, remains unopposed, pending resolution of the outstanding discovery disputes. (Doc. 22.)

On March 24, 2011, the Court granted Plaintiff's motion to compel the production of documents (PODs) in part and ordered Defendants to serve supplemental responses to PODs 1-4, subject to the time and relevancy limitations discussed in the order. (Doc. 25.) On October 18, 2011, the Court denied Plaintiff's subsequent motion to compel responses to PODs 1-4, finding that although Plaintiff was entitled to production, Defendants did not have the documents in their possession, custody or control and the documents should be obtained via subpoenas duces tecum. (Doc. 37.) Pursuant to Federal Rule of Civil Procedure 45(b)(1), the Court notified the parties that the subpoenas would issue fifteen days after service of the order.

On November 29, 2011, the Court ordered the United States Marshal to serve subpoenas duces tecum on the California Department of Corrections and Rehabilitation (CDCR) and the Custodian of Records at California Correctional Institution (CCI). (Doc. 38.) The documents were to be produced to Plaintiff for inspection and copying on February 1, 2012. The subpoena directed to CCI was returned executed, and on February 7, 2012, the Court ordered Plaintiff to file a status report regarding his ability to oppose Defendants' pending motion for summary judgment. (Docs. 39, 41.)

On February 27, 2012, Plaintiff filed a status report and a motion seeking the imposition of sanctions against Defendants under Federal Rule of Civil Procedure 37(b)(2) and to modify the scheduling order, and on March 2, 2012, Plaintiff filed a supplement to his status report and motion. (Docs. 42, 43.) On July 19, 2012, the Court denied Plaintiff's motion for sanctions against Defendants and to modify the scheduling order, and granted Plaintiff thirty days within which to file a motion to compel CDCR and CCI to produce documents. (Doc. 49.)

On August 28, 2012, after obtaining an extension of time, Plaintiff filed a motion seeking to compel CDCR and CCI to comply fully with the subpoena duces tecum and requesting that the Court hold CDCR and CCI in contempt. Fed. R. Civ. P. 45(c)(2)(B), (e). (Doc. 51.) CDCR and CCI filed an opposition on September 12, 2012, and after obtaining several extensions of time, Plaintiff filed a reply on November 2, 2012. (Docs. 53, 56.) Plaintiff's motion has been submitted upon the record and the Court orders as follows. Local Rule230(l).

II. Discussion

A. Rule 45

Pursuant to Federal Rule of Civil Procedure 45(a)(1)(D), a subpoena commanding the production of documents requires the responding party to permit inspection or copying of the materials. Following service of a subpoena duces tecum, the responding party may serve objections "before the earlier of the time specified for compliance or 14 days after the subpoena is served," and if an objection is made, the serving party may move for an order compelling production or inspection.*fn1 Fed. R. Civ. P. 45(c)(2)(B). The responding party may be held in contempt for failing to obey the subpoena without adequate excuse. Fed. R. Civ. P. 45(e).

B. Timing of Events

On November 29, 2011, the United States Marshal was directed to serve CDCR and CCI with the subpoenas duces tecum within twenty days, and on December 21, 2011, the Marshal returned CCI's subpoena with a notice of ...


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