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Garcia v. Juarez

United States District Court, E.D. California

June 23, 2016

ROBERTO M. GARCIA, JR., Plaintiff,
v.
MATTHEW M. JUAREZ, JR., Defendant.

         ORDER GRANTING PLAINTIFF'S REQUEST FOR RE-ISSUANCE OF SUBPOENA DUCES TECUM, AND PLACING PARTIES ON NOTICE THAT THE SUBPOENA TO AGENT M. DUNLOP, OFFICE OF INTERNAL AFFAIRS, SHALL ISSUE AFTER FIFTEEN DAYS FROM THE DATE OF SERVICE OF THIS ORDER (ECF No. 75.)

         I. BACKGROUND

         Roberto M. Garcia, Jr. ("Plaintiff") is a state prisoner proceeding with limited purpose counsel[1] with this civil rights action pursuant to 42 U.S.C. § 1983. On May 8, 2012, Plaintiff filed the Complaint commencing this action. (Doc. 1.) This case now proceeds on Plaintiff's First Amended Complaint, filed on June 14, 2013, against defendant Sergeant Matthew M. Juarez, Jr. ("Defendant") for use of excessive force in violation of the Eighth Amendment.[2](ECF No. 11.)

         On May 23, 2016, Plaintiff filed a request for re-issuance of a subpoena as to non-party Agent M. Dunlop, Office of Internal Affairs, commanding the production of documents. (ECF No. 75.)

         II. REQUEST FOR ISSUANCE OF SUBPOENA

         "A command in a subpoena to produce documents, electronically stored information, or tangible things requires the responding person to permit inspection, copying, testing, or sampling of the materials." Fed.R.Civ.P. 45(a)(1)(D). "If the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, then before it is served on the person to whom it is directed, a notice and a copy of the subpoena must be served on each party." Fed.R.Civ.P. 45(a)(4). Under Rule 26 of the Federal Rules of Civil Procedure, "[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense." Fed.R.Civ.P. 26(b). "Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id.

         Plaintiff requests re-issuance of the subpoena duces tecum that was issued on December 7, 2015, compelling non-party Agent M. Dunlop, Office of Internal Affairs, to produce documents. The U.S. Marshal was unable to serve Agent M. Dunlop with the subpoena because "the building was under construction vacant of any businesses." (ECF No. 75 at 6.)

         At the hearing on April 26, 2016, the Court advised Plaintiff to send the Court a copy of the return of service he received from the U.S. Marshal, together with a motion for reissuance of the subpoena, to enable the Court to direct the Marshal to make a further attempt to serve Agent M. Dunlop. Plaintiff has now filed a motion as instructed and provided a copy of the return of service for the Court's review.

         Plaintiff seeks copies of "all records, documents, recorded interviews and any data available concerning the investigation conducted by the Office of Internal Affairs on this matter, Inmate Appeals 602 Log: KVSP 11-00760." (ECF No. 75 at 3.) Plaintiff also requests production of the specific documents identified below:

1. Incident Commander Review Report of May 23, 2011.
2. Regional Use of Force Coordinator Report, CDCR form 3034-A (9/09).
3. Report of Executive Review Committee Use of Force/Misconduct Allegation, CDCR Form 3036-A concerning this matter.
4. Report of Executive Committee Critique and Qualitative Evaluation/Analysis.
5. Copy from the report of the investigation conducted by Internal Affairs ...

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