(PC) Ireland v. White ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROD WILLIAM IRELAND, Case No. 2:19-cv-01104-KJM-JDP (PC) 12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTIONS FOR A FORM SUBPOENA AND 13 v. TO MODIFY THE SCHEDULING ORDER 14 SOLANO COUNTY, et al., ECF Nos. 34, 36, 37 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding without counsel, has filed two motions requesting 18 that he be provided a subpoena form. ECF Nos. 34 & 36. He explains that he needs a subpoena 19 form so that he can obtain his medical records from third party California Forensic Medical 20 Group, Inc. ECF No. 36. 21 Federal Rule of Civil Procedure 45(a)(3) provides that “[t]he clerk must issue a subpoena, 22 signed but otherwise in blank, to a party who requests it.” However, before a subpoena is issued, 23 the court must ensure that the party serving the subpoena has taken reasonable steps to avoid 24 imposing an undue burden or expense on the person or entity to be served with the subpoena. 25 Fed. R. Civ. P. 45(d)(1); see Austin v. Winett, 1:04-cv-05104-DLB PC, 2008 WL 5213414, at *2 26 (E.D. Cal. Dec. 11, 2008) (“Directing the Marshal’s Office to expend its resources personally 27 serving a subpoena is not taken lightly by the court.”). 28 1 I will grant plaintiff’s motions and direct the Clerk of Court to send him a signed, but 2 otherwise blank, subpoena form. Plaintiff is warned, however, that I will not direct the U.S. 3 Marshall to serve a subpoena unless he first shows that the documents he seeks are not readily 4 available to him or cannot be more easily obtained from defendants through a properly served 5 request for production. See Fed. R. Civ. P. 34. If plaintiff can make that showing, he must then 6 submit a completed subpoena form describing the items to be produced with reasonable 7 particularity and designating a reasonable time, place, and manner for production. He must also 8 explain the relevance of the information sought and, if known, describe the burden and expense to 9 the non-party in providing the requested information. 10 Plaintiff has also filed a motion to modify the scheduling order to extend the deadline for 11 completion of discovery. ECF No. 37. He explains that the ongoing pandemic has limited his 12 access to the law library, which has hindered his ability to prepare requests for discovery. Id. at 13 1-2. Defendants oppose plaintiff’s motion, arguing that plaintiff has demonstrated an ability to 14 adequately prepare and serve written discovery requests. ECF No. 39. They state that he has 15 already served interrogatories, requests for admissions, and requests for productions of 16 documents. Id. at 2. 17 A court may modify its scheduling order only upon a showing of good cause. Fed. R. 18 Civ. P. 16(b)(4). In determining whether good cause exists, courts primarily consider the moving 19 party’s diligence. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992). 20 Thus, the “court may modify the pretrial schedule if it cannot reasonably be met despite the 21 diligence of the party seeking the extension.” Id. Although plaintiff may have already served 22 some discovery requests, that does not necessarily mean that he has been able to obtain all 23 discovery needed to litigate this case. Indeed, it appears that plaintiff still needs to subpoena or 24 otherwise obtain his medical records, which are likely relevant to his claim that defendants should 25 not have housed him with other inmates because of his mental health issues. See ECF No. 13-1 at 26 14-15. I will grant plaintiff’s motion to modify the scheduling order and provide a brief extension 27 of the deadlines to allow the parties to complete discovery. 28 1 Accordingly, it is hereby ORDERED that: 2 1. Plaintiffs motions for a blank subpoena form, ECF Nos. 34 & 36, are granted. 3 2. The Clerk of the Court is directed to provide plaintiff with a signed but otherwise 4 blank subpoena duces tecum form with this order. See Fed. R. Civ. P. 45(a)(3). 5 3. If plaintiff wants the U.S. Marshal to serve the subpoena, he shall, within twenty-one 6 days of this order, complete and return the provided subpoena. The subpoena shall identify 7 with particularity the materials it commands to be produced and designate a reasonable time, 8 place, and manner for production. 9 4, Plaintiff's motion to modify the scheduling order, ECF No. 37, is granted, and the 10 scheduling order, ECF No. 31, is modified as follows: 11 a. The deadline for completion of discovery is extended to December 23, 2021. 12 | Any motion to compel must be filed by that date. All requests for discovery pursuant to Fed. R. 13 | Civ. P. 31, 33, 34, or 36 shall be served not later than November 5, 2021. 14 b. The deadline for filing dispositive motions is extended to February 4, 2022. 15 16 IT IS SO ORDERED. 17 ( 1 Sy — Dated: _ September 29, 2021 18 JEREMY D. PETERSON 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28