Opinion
1:12-cv-00750-AWI-EPG (PC)
11-16-2015
ROBERTO M. GARCIA, JR., Plaintiff, v. MATTHEW M. JUAREZ, JR., Defendant.
ORDER GRANTING PLAINTIFF'S REQUEST FOR 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. 44.)
I. BACKGROUND
Roberto M. Garcia, Jr. ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis 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. (ECF No. 11.) The discovery deadline for this case expired on August 8, 2015, and the deadline has not been extended. (ECF No. 32.)
On May 9, 2014, the court issued an order dismissing all other claims from this action, based on Plaintiff's failure to state a claim. (ECF No. 19.) --------
On July 16, 2015, Plaintiff filed a request for issuance of a subpoena against a non-party commanding the production of documents. (ECF No. 44.)
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 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." (Doc. 44 at 4:9-13.) Plaintiff provides evidence that he submitted Appeal KVSP 11-00760 on June 3, 2011 as a Staff Complaint against Sergeant M. Juarez for use of excessive force against Plaintiff in the incident which is now the subject of this case. (ECF No. 44, Exhs. B-D.) On or about July 15, 2011, the Appeal was partially granted at the Second Level of review and forwarded for investigation to the Office of Internal Affairs. (I d. at 2:25-3:1, Exh. C.) Plaintiff sent a letter to Agent M. Dunlop, Office of Internal Affairs, dated December 10, 2014, requesting copies of reports related to the investigation conducted by Internal Agent M. Dunlop, and Plaintiff received a response but no copies were provided. (Id. at 3, Exh. A, B.)
Plaintiff's request for issuance of a subpoena, to the extent he seeks information about the excessive force incident on May 23, 2011, appears reasonably calculated to lead to the discovery of admissible evidence. Thus, the Court shall grant Plaintiff's request. Plaintiff is proceeding pro se and in forma pauperis, and is entitled to service of the subpoena by the United States Marshal. 28 U.S.C. § 1915(d). Pursuant to Federal Rule of Civil Procedure 45(b)(1), this order provides the requisite notice to the parties that the Court will, after fifteen days from the date of service of this order, issue the subpoena and direct the United States Marshal to effect personal service.
III. CONCLUSION
Accordingly, it is HEREBY ORDERED that:
1. Plaintiff's request for the issuance of a subpoena, filed July 16, 2015, is GRANTED; andIT IS SO ORDERED.
2. Pursuant to Rule 45(b)(1), the parties are placed on notice that a subpoena duces tecum to Agent M. Dunlop, Office of Internal Affairs, shall be issued after fifteen (15) days from the date of service of this order.
Dated: November 16 , 2015
/s/ _________
UNITED STATES MAGISTRATE JUDGE