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Bryant v. Gallagher

United States District Court, Ninth Circuit

July 8, 2013

KEVIN DARNELL BRYANT, Plaintiff,
v.
P. GALLAGHER, et al., Defendants.

ORDER GRANTING PLAINTIFF'S SECOND MOTION FOR ISSUANCE OF SUBPOENA DUCES TECUM AND DIRECTING SERVICE OF SUBPOENA DUCES TECUM BY UNITED STATES MARSHALS SERVICE WITHOUT PREPAYMENT OF COSTS (ECF No. 103)

BARBARA A. McAULIFFE, Magistrate Judge.

Plaintiff Kevin Darnell Bryant ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's first amended complaint, filed on July 5, 2011, against Defendant Romero for deliberate indifference to serious medical needs in violation of the Eighth Amendment; and against Defendants Gallagher and Romero for conspiracy, retaliation in violation of the Eighth Amendment and failure to protect in violation of the Eighth Amendment. On October 11, 2012, Plaintiff filed a motion for a court order or subpoena duces tecum for production of his medical records. (ECF Nos. 71, 72.) On October 17, 2013, the Court granted Plaintiff's request for the issuance of a subpoena duces tecum to Mercy Hospital in Bakersfield to produce the relevant records. (ECF No. 74.)

On January 8, 2013, Mercy Hospital responded to the subpoena and reported that they required Plaintiff's date of birth and issuance of a new subpoena to provide the requested records. (ECF No. 97.) Thereafter, on January 14, 2013, the Court issued an order requiring Plaintiff to submit his date of birth confidentially to the Court to assist Mercy Hospital in locating his records. (ECF No. 98.) In response to the Court's order, on February 6, 2013, Plaintiff filed the instant motion for the issuance of a second subpoena duces tecum to Mercy Hospital of Bakersfield. Plaintiff's motion identified his date of birth as 3-26-65.[1] (ECF No. 103.)

In keeping with its prior order, the Court will issue a subpoena duces tecum to Mercy Hospital in Bakersfield to produce the relevant records and order a limited extension of the discovery deadline for this subpoena.

Plaintiff is proceeding pro se and in forma pauperis, and while he is entitled to service of the subpoena by the United States Marshal, 28 U.S.C. § 1915(d), Plaintiff is advised that he will be required to pay any fees associated with the production of the records.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's second motion for a subpoena duces tecum, filed February 6, 2013, is GRANTED;

2. The Clerk of the Court shall forward the following documents to the United States Marshals Service for each subpoena to be served:

a. One (1) completed and issued subpoena duces tecum and attached letter to be served on each of the following:

b. One (1) completed USM-285 form; and

c. One (1) copy of this order, plus an extra copy for the Marshals Service.

3. Within TWENTY (20) DAYS from the date of this order, the Marshals Service is DIRECTED to serve the subpoenas in accordance with the provisions of Rule 45 of the Federal Rules of Civil Procedure.

4. The Marshals Service is DIRECTED to retain a copy of the subpoena in its file for future use.

5. The Marshals Service SHALL effect personal service of the subpoena duces tecum, along with a copy of this order, upon the entity named in the subpoena pursuant to Rule 45 of the Federal Rules of Civil Procedure and 28 U.S.C. § 566(c).

6. Within TEN (10) DAYS after personal service is effected, the Marshals Service SHALL file the return of service, along with the costs subsequently incurred in effecting service. Said costs shall be enumerated on the USM-285 form.

IT IS SO ORDERED.


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