Gregory Kuebler v. Dr. Jaime , 645 F. App'x 548 ( 2016 )

FILED
NOT FOR PUBLICATION MAR 23 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREGORY JAMES KUEBLER, No. 14-55446
Plaintiff - Appellant, D.C. No. 5:11-cv-01983-DMG-OP
v.
MEMORANDUM*
DR. JAIME; DR. TRAN,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Submitted March 15, 2016**
Before: GOODWIN, LEAVY, and CHRISTEN, Circuit Judges.
Former California state prisoner Gregory James Kuebler appeals pro se from
the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1 14-55446
deliberate indifference to his serious medical needs. We have jurisdiction under 28
U.S.C. § 1291. We review for an abuse of discretion the district court’s rulings
concerning discovery. Preminger v. Peake, 552 F.3d 757, 768 n.10 (9th Cir.
2008). We vacate and remand.
The magistrate judge denied Kuebler’s requests for subpoenas. However,
“[t]he clerk must issue a subpoena, signed but otherwise in blank, to a party that
requests it.” Fed. R. Civ. P. 45(a)(3). Although generally “a party who fails to file
timely objections to a magistrate judge’s nondispositive order . . . forfeits [the]
right to appellate review of that order,” Simpson v. Lear Astronics Corp., 77 F.3d
1170, 1174 (9th Cir. 1996), we retain discretion to review such an order if “the
issue presented is purely one of law and either does not depend on the factual
record developed below, or the pertinent record has been fully developed,”
Bastidas v. Chappell, 791 F.3d 1155, 1161 (9th Cir. 2015) (citation and internal
quotation marks omitted). We exercise that discretion here.
Based on the record before us, we cannot conclude that the magistrate
judge’s error was harmless. See generally Tagupa v. Bd. of Directors, 633 F.2d
1309, 1312 (9th Cir. 1980) (appeal of discovery order is subject to harmless error
analysis). Accordingly, we vacate the judgment and remand for further
proceedings consistent with this disposition.
The parties shall bear their own costs on appeal.
VACATED and REMANDED.
3 14-55446