Opinion
1:21-cv-00392-JLT-EPG
01-31-2023
LUIS MANUEL GARCES, Plaintiff, v. M. GAMBOA, et al., Defendants.
ORDER DIRECTING SERVICE OF SUBPOENA BY THE UNITED STATES MARSHALS SERVICE WITHOUT PREPAYMENT OF COSTS (ECF No. 104).
ORDER DIRECTING CLERK TO ATTACH COPY OF SUBPOENA TO THIS ORDER
Plaintiff Luis Manuel Garces (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this action pursuant to 42 U.S.C. § 1983. This case proceeds, in part, on Plaintiff's claims against Defendants Gamboa, Babb, and Sanders for procedural due process in violation of the Fourteenth Amendment based on Plaintiff's allegations that those defendants altered and fabricated evidence, which was used as probable cause to prosecute Plaintiff for assault on a peace officer. (See ECF No. 79, p. 10). The state criminal case resulted in a directed verdict in Plaintiff's favor. (Id.)
This action also proceeds on Plaintiff's claims against Defendants Hernandez, Hubbard, Huerta, Cathey, Wolf, and Allison for excessive force in violation of the Eighth Amendment and against Defendants Hernandez, Hubbard, Gill, Ibarra, Camacho, Argon, Ramadan, and Boyd for deliberate indifference to serious medical needs in violation of the Eighth Amendment. (See ECF Nos. 79, 80).
On January 4, 2023, the Court authorized Plaintiff to issue a subpoena duces tecum so that Plaintiff could seek trial transcripts and photographic evidence used during the state criminal case from Plaintiff's defense attorney, Ms. Melina Benninghoff. (ECF No. 96). Plaintiff has now completed and returned the subpoena and USM-285 form. (ECF No. 104).
For the reasons discussed in the Court's previous order (ECF No. 96), Plaintiff's completed subpoena sufficiently identifies the documents sought and the person in custody or possession of those documents.
Accordingly, IT IS ORDERED that:
1. Any response and/or responsive documents shall be produced to Plaintiff at his current address within twenty-one (21) days upon service of the subpoena: Luis Manuel Garces, V47652, Kern Valley State Prison C-2-115 LW, P.O. Box 6000, Delano, CA 93216.
2. The Clerk of Court shall forward the following documents to the United States Marshals Service:
a. One (1) completed and issued subpoena duces tecum;
b. One (1) completed USM-285 form; and
c. Two (2) copies of this order, one to accompany the subpoena and one for the United States Marshals Service.
3. The Clerk of Court is directed to attach a copy of the completed subpoena duces tecum to this order.
4. Within TWENTY (20) DAYS from the date of this order, the United States Marshals Service SHALL effect personal service of the subpoena, along with a copy of this order, upon Melina Benninghoff pursuant to Rue 45 of the Federal Rules of Civil Procedure and 28 U.S.C. § 566(c).
5. The United States Marshals Service is DIRECTED to retain a copy of the subpoena in its file for future use.
6. Within TEN (10) DAYS after personal service is effected, the United States Marshals Service SHALL file the return of service.
IT IS SO ORDERED.