Kunkel v. Dill et al

Filing 101

ORDER PARTIALLY GRANTING 85 Motion for Issuance of Subpoena Duces Tecum and DIRECTING Service of Subpoena Duces Tecum by United States Marshals service without prepayment of costs, signed by Magistrate Judge Sandra M. Snyder on 05/11/2011.Issuance of Subpoena Duces Tecum to Distribute Data Program System Unit for the in and out log is DENIED; Issuance to Corcoran District Hospital, Colonial Medical Group, CHW Central California Mercy Hospital and U.C. Davis Medical Center is GRANTED and should be sent to USM Sacramento for service along with attached letter, (1) USM 285 Form and (1) copy of this order plus a copy for Marshals Service. (Martin, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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PATRICK KUNKEL,

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CASE NO. 1:09-cv-00686-LJO-SMS PC
Plaintiff,

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v.

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N. DILL, et al.,

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Defendants.

ORDER PARTIALLY GRANTING
PLAINTIFF’S MOTION FOR ISSUANCE OF
SUBPOENAS DUCES TECUM AND
DIRECTING SERVICE OF SUBPOENA
DUCES TECUM BY UNITED STATES
MARSHALS SERVICE WITHOUT
PREPAYMENT OF COSTS
/ (ECF No. 85)

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On February 2, 2011, Plaintiff filed a motion seeking the issuance of five subpoenas duces

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tecum. (ECF No. 85.) Plaintiff is proceeding pro se and in forma pauperis, and is entitled to service

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of the subpoena by the United States Marshal. 28 U.S.C. § 1915(d). The documents sought by four

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of the subpoenas pertain the medial treatment of Plaintiff’s knee and ankle which are at issue in this

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action and the motion shall be granted for these subpoenas.

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The fifth subpoena requests the in and out log book of the building which contains the names

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of every staff member who was on duty during the time period requested. Plaintiff requests these

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records to prove when medical staff saw him and to retrieve the names of witnesses. Plaintiff alleges

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that he had surgery on November 14, 2007, and when he returned to Kern Valley State Prison he was

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denied medical care because no medical staff were on duty. He was seen on November 15, 2007,

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and told that he would not receive pain medication until the following day. On November 16, 2007,

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Plaintiff was seen by Defendant Araich. The Court fails to see how the records requested, the in and

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out log book from November 12, 2007 through November 17, 2007, will lead to the discovery of
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admissible evidence. Fed. R. Civ. P. 26(b)(1). Plaintiff’s medical records will contain the names

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of medical personnel who treated him and Plaintiff has failed to identify how the subject matter of

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the testimony any of the witnesses he is seeking would be relevant. Therefore Plaintiff’s request for

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a subpoena duces tecum for the in and out log book will be denied without prejudice.

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Accordingly, it is HEREBY ORDERED that:
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Plaintiff’s motion for the issuance of subpoenas duces tecum, filed February 2, 2011,

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is PARTIALLY GRANTED as follows;

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a.

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The motion for issuance of a subpoena duces tecum to Distribute Data
Program System Unit for the in and out log is DENIED;

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b.

The motion for the issuance of a subpoena duces tecum to Corcoran District

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Hospital, Colonial Medical Group, CHW Central California Mercy Hospital,

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and U. C. Davis Medical Center are GRANTED;

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2.

The Clerk of the Court shall forward the following documents to the United States

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Marshals Service for each subpoena to be served:

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a.

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One (1) completed and issued subpoena duces tecum and attached letter to be
served on each of the following:

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CORCORAN DISTRICT HOSPITAL
1310 HANNA AVENUE
CORCORAN, CALIFORNIA 93212

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COLONIAL MEDICAL GROUP
(PACIFIC ORTHO MEDICAL GROUP)
1801 16TH STREET, SUITE B
BAKERSFIELD, CALIFORNIA 93301

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CHW CENTRAL CALIFORNIA MERCY HOSPITAL
2215 TRUXTON AVENUE
BAKERSFIELD, CALIFORNIA 93301

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U. C. DAVIS MEDICAL CENTER
2315 STOCKTON BLVD.
SACRAMENTO, CALIFORNIA 95817

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b.

One (1) completed USM-285 form; and

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One (1) copy of this order, plus an extra copy for the Marshals Service.

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3.

Within TWENTY (20) DAYS from the date of this order, the Marshals Service is

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DIRECTED to serve the subpoenas in accordance with the provisions of Rule 45 of

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the Federal Rules of Civil Procedure.

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4.

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The Marshals Service is DIRECTED to retain a copy of the subpoena in its file for
future use.

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5.

The Marshals Service SHALL effect personal service of the subpoena duces tecum,

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along with a copy of this order, upon the entity named in the subpoena pursuant to

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Rule 45 of the Federal Rules of Civil Procedure and 28 U.S.C. § 566(c).

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6.

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Within TEN (10) DAYS after personal service is effected, the Marshals Service
SHALL file the return of service, along with the costs subsequently incurred in

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effecting service. Said costs shall be enumerated on the USM-285 form.

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IT IS SO ORDERED.

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Dated:
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May 11, 2011

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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