Woodall v. State of California et al

Filing 103

ORDER Granting Plaintiff's Motion to Compel 96 and Requiring Non-Party Acting Warden of Corcoran State Prison to Serve Further Response, signed by Magistrate Judge Dennis L. Beck on 11/2/11. Response Due Within Twenty-One Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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NICK WOODALL,

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CASE NO. 1:08-CV-01948-LJO-DLB PC
Plaintiff,

ORDER GRANTING PLAINTIFF’S MOTION
TO COMPEL AND REQUIRING NONPARTY ACTING WARDEN OF
CORCORAN STATE PRISON TO SERVE
FURTHER RESPONSE (DOC. 96)

v.

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STATE OF CALIFORNIA, et al.,

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Defendants.

RESPONSE DUE WITHIN TWENTY-ONE
DAYS

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/
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Plaintiff Nick Woodall (“Plaintiff”) is a prisoner in the custody of the California

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Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding

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against Defendant A. Raygoza for deliberate indifference in violation of the Eighth Amendment.1

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On March 30, 2011, the Court directed service of Plaintiff’s subpoena duces tecum by the United

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States Marshal on then warden Raul Lopez of California State Prison at Corcoran (“CSP-Cor”).2

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On April 25, 2011, the subpoena was returned executed. Pending before the Court is

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Plaintiff’s motion to compel, filed July 29, 2011. Doc. 96. Plaintiff contends that he did not

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receive any of the documents requested in his subpoena duces tecum. Plaintiff requests that the

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Defendants Olive, Sexton, Gonzalez, and Lawson were dismissed from the action on
September 9, 2011. Docs. 97, 99.
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Raul Lopez was acting warden at the time the order was issued.
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Court hold Mr. Lopez in contempt and impose sanctions pursuant to Rule 45 of the Federal Rules

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of Civil Procedure.

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A review of the Court’s records indicates that the acting warden submitted documents

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requested in the subpoena duces tecum to the Court. The Court, however, did not request these

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documents. On September 9, 2011, the Court ordered the acting warden to file a response to

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Plaintiff’s motion to compel. Doc. 98.

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On September 23, 2011, the acting warden responded, stating that the documents were

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sent to the Court, and not to the Plaintiff, inadvertently. Doc. 100. The acting warden attached a

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copy of the produced documents to his response. Id. On October 3, 2011, Plaintiff filed his reply

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to the acting warden’s response. Doc. 101. Plaintiff contends that the acting warden still has not

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fully complied with the Court’s subpoena duces tecum as seventeen of the twenty-six requested

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documents were not produced. Pl.’s Reply 2-5. Plaintiff requests sanctions be imposed on

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acting warden Lopez for contempt of court. Id. at 5-6.

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A review of the attached documents indicates that the acting warden did not fully comply

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with the subpoena duces tecum.3 “The issuing court may hold in contempt a person who, having

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been served, fails without adequate excuse to obey the subpoena.” Fed. R. Civ. P. 45(e). The

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Court declines to issue a sanction for non-compliance with the subpoena duces tecum until after

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the issuance of an order commanding compliance. See Pennwalt Corp. v. Durand-Wayland, Inc.,

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708 F.2d 492, 494 (9th Cir. 1983) (finding corporation subject to subpoena could not be

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sanctioned in absence of enforcement order). The Court will thus by this order require the acting

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warden to comply with the subpoena duces tecum or provide an objection or adequate excuse as

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Documents that do not appear to have been produced include a complete crime/incident
report (CDC form 837) from Investigative Services Unit when investigating and searching
Plaintiff’s cell, or the in-service training signature sheet regarding Operational Procedure 241. It
is unclear to what extent the acting warden did not produce documents. Based on the submitted
documents, the acting warden produced: the emergency room register for September 12 and 13 of
2007; the incident logs for September 12 and 13 from the first and second watch; post orders for
the Facility III A Facility Sergeant; some daily logs for September 12 and 13 by unknown
authors; and custody sign-in/out sheets for September 13 watch 1 and 2. Contrary to Plaintiff’s
contention that the sign-in/out sheets did not include ISU staff, the sign-in/out sheets appears to
include the entire Facility 3A, IGI, and ISU staff for September 13.
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to why he cannot. If the acting warden fails to comply, he may be subject to a subsequent finding

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of contempt.

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Accordingly, it is HEREBY ORDERED that

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Plaintiff’s motion to compel, filed July 29, 2011, is GRANTED;

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2.

Acting warden R. Lopez is to serve on Plaintiff additional responses to Plaintiff’s

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subpoena duces tecum within twenty-one (21) days from the date of service of

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this order, as stated herein;

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3.

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Failure to comply with the subpoena or to provide adequate excuse for failing to
obey may result in the acting warden being held in contempt.

IT IS SO ORDERED.
Dated:
3b142a

November 2, 2011

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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