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Harris v. Kim

United States District Court, E.D. California

July 9, 2014

KIM, et al., Defendants.


SHEILA K. OBERTO, Magistrate Judge.

I. Background

Plaintiff Darren Harris, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on January 3, 2005. This action is proceeding against Defendants Olivarria, Lowden, Williams, and Kim for violating Plaintiff's First and Eighth Amendment rights under the United States Constitution. Jury trial is currently set for April 21, 2015.

On May 2, 2014, and May 8, 2014, Plaintiff filed motions seeking a stay of the proceedings so that he may complete discovery, sanctions, and an order compelling compliance with his subpoena duces tecum. (Docs. 134, 135.) Defendants did not file a response and the motions have been submitted upon the record without oral argument. Local Rule 230( l ).

II. Discussion

A. Stay and Sanctions

With respect to a stay, Plaintiff has not identified any legitimate legal basis supporting that form of relief and his request is denied.[1]

Furthermore, as discussed in subsection B, there is no basis for sanctions against Defendants or their counsel, as there has been no showing that Defendants or their counsel acted improperly. E.g., 28 U.S.C. § 1927; Fed.R.Civ.P. 11; Chambers v. NASCO, Inc., 501 U.S. 32, 43-45, 111 S.Ct. 2123 (1991); Roadway Express, Inc. v. Piper, 447 U.S. 752, 767, 100 S.Ct. 2455 (1980).

B. Discovery Deadline and Third Party Subpoena Duces Tecum

With respect to further discovery, modification of a scheduling order requires a showing of good cause. Fed.R.Civ.P. 16(b)(4). In this case, the deadline for the completion of all discovery was March 18, 2013. (Doc. 91.) Plaintiff timely filed a motion to compel on November 2, 2012, and on February 20, 2013, the motion was denied on procedural grounds, without prejudice to renewal within thirty days. (Docs. 103, 112.) After obtaining an extension of time, Plaintiff renewed his motion to compel on April 5, 2013, and on November 26, 2013, the Court granted the motion to compel in part and denied it in part. (Docs. 118, 121.) Plaintiff was informed in the order of November 26, 2013, and in two subsequent orders, that if he was dissatisfied with Defendants' supplemental discovery responses and the parties were unable to resolve the dispute after meeting and conferring, Plaintiff's recourse was to file a motion to compel. (Docs. 121, 124, 130.)

Despite receiving clear notice three times that if dissatisfied with the supplemental responses, his recourse was limited to filing a motion to compel, Plaintiff did not file a motion to compel, nor did he request a subpoena duces tecum from the Court based on Defendants' lack of possession, custody, or control over responsive documents. Fed.R.Civ.P. 34(a)(1), 45. Instead, aided by his receipt of a non-court authorized subpoena duces tecum from Defendants' counsel, Plaintiff attempted to seek documents from third party Jeffery Beard, Ph.D., Secretary of the California Department of Corrections and Rehabilitation.

Plaintiff now seeks an extension of time to complete discovery with respect to the documents he seeks from Dr. Beard. Plaintiff contends that based on representations made during the parties' attempts to resolve their remaining discovery dispute, good cause exists to allow him to complete discovery. Fed.R.Civ.P. 16(b)(4).

As an initial matter, the parties are reminded that they are bound by scheduling orders. A request for relief from a scheduling deadline must be presented to the Court by the party seeking the relief. A stipulation between the parties regarding a scheduling order deadline has no effect on the deadline in the absence of presentation to and approval by the Court. Thus, while Defendants counsel informed Plaintiff by letter that he was willing to stipulate to additional time to complete discovery and he filed a declaration in opposition to Plaintiff's prior motion for sanctions in which he attested that both sides were in agreement that Plaintiff should be given an extension of time, Plaintiff was obligated to file a timely request for an extension of the discovery deadline and he failed to do so. (Doc. 127, Reager Dec., ¶10; Doc. 135, p. 8.)

The issue of entitlement to a third party subpoena duces tecum was also previously addressed in this case. Fed.R.Civ.P. 45. On February 20, 2013, the Court issued its second order regarding Plaintiff's request for the issuance of a subpoena duces tecum. (Doc. 112.) In denying the request for the second time, the Court stated, "If Plaintiff wishes to make a request for the issuance of a records subpoena, he may file a motion requesting the issuance of a subpoena duces tecum that (1) identifies with specificity the documents sought and from whom, and (2) makes a showing in the motion that the records are only obtainable through that third party." ( Id., 3:18-21.) In a footnote, Plaintiff was informed, "If Defendants object to Plaintiff's document production requests, as it appears from the record they did, a motion to compel is the next required step. If the Court rules that the documents are discoverable but Defendants do not have care, custody, and control of them, Plaintiff may then seek a ...

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