Dasenbrock v. Kings County et al

Filing 222

ORDER GRANTING Plaintiff's 199 Motion for Subpoena Duces Tecum; ORDER AND NOTICE AUTHORIZING Issuance of Subpoena Duces Tecum Directing Production of Documents by CSATF Director of Nursing; ORDER DIRECTING Clerk's Office to Serve Copy of Subpoena with Order signed by Magistrate Judge Gary S. Austin on 3/6/2017. (Attachments: # 1 Attachment 1, # 2 Unissued Subpoena)(Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ROBIN DASENBROCK, 12 Plaintiff, 13 14 vs. 1:11-cv-01884-DAD-GSA-PC ORDER GRANTING PLAINTIFF=S MOTION FOR SUBPOENA DUCES TECUM (ECF No. 199.) A. ENENMOH, et al., 15 Defendants. 16 17 18 ORDER AND NOTICE AUTHORIZING ISSUANCE OF SUBPOENA DUCES TECUM DIRECTING PRODUCTION OF DOCUMENTS BY C.S.AT.F. DIRECTOR OF NURSING ORDER DIRECTING CLERK’S OFFICE TO SERVE COPY OF SUBPOENA WITH ORDER 19 20 21 22 I. BACKGROUND 23 Robin Dasenbrock (“Plaintiff”) is a state prisoner proceeding pro se with this civil 24 rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this 25 action on November 14, 2011. (ECF No. 1.) This case now proceeds with Plaintiff’s Second 26 Amended Complaint filed on September 8, 2015, against defendants Dr. A. Enenmoh, 27 Correctional Officer Perez, Nurse Page, and Nurse Adair on Plaintiff’s claims of violation of 28 the Eighth Amendment and negligence. (ECF No. 140.) 1 1 On September 6, 2016, Plaintiff filed a motion requesting issuance of a subpoena duces 2 tecum. (ECF No. 199.) Defendants have not filed an opposition. 3 II. MOTION FOR ISSUANCE OF SUBPOENA DUCES TECUM 4 Plaintiff requests issuance of a subpoena duces tecum commanding third party Office of 5 the Director of Nursing at the California Substance Abuse Treatment Facility (“C.S.A.T.F.”) to 6 produce documents that defendant Adair did not produce pursuant to Plaintiff’s request for 7 production of documents. Plaintiff declares, “On Aug. 5, 2016 Defendant Adair responded to 8 my Production of Document request by sending no documents, stating she was no longer 9 affiliated with Corcoran Prison, and does not have access to any such records – and that the 10 requested documents were not in her possession, custody or control.” (Dasenbrock Decl., ECF 11 No. 199 at 3¶3.) Plaintiff provides a copy of defendant Adair’s August 5, 2016 responses. 12 (ECF No. 199 at 8-17.) 13 Plaintiff declares that he had this same problem obtaining documents from defendant 14 Page, and since both defendants are nurses, he believes the ODN has the documents he 15 requested from defendant Adair. (Dasenbrock Decl. at 3 ¶4.) Plaintiff also declares that the 16 Director of Nursing did provide these same documents concerning defendant Page after the 17 court issued a subpoena, (ECF No. 157), and he anticipates that the Director of Nursing will 18 provide the documents requested concerning defendant Adair if the court issues a subpoena 19 again. (Id.) 20 III. DISCUSSION 21 Plaintiff has demonstrated that he made a request to defendant Adair for production of 22 documents and is unable to obtain the documents from her, and it appears from Plaintiff’s 23 account of his experience with defendant Page that the records he seeks are only obtainable 24 through the Director of Nursing. 25 documents he seeks from the Director of Nursing, C.S.A.T.F., which are the same documents 26 Plaintiff requested from defendant Adair in Plaintiff’s request for production of documents. 27 (See ECF No. 199, Attachments.) Fed. R. Civ. P. 34(a), 45. 28 2 Plaintiff has identified the 1 The court’s order of June 24, 2016, granted Plaintiff and defendant Adair leave to file 2 motions to compel if necessary. (ECF No. 182.) In this instance, it would be futile for Plaintiff 3 to file a motion to compel as defendant Adair has responded that she is not in possession, 4 custody, or control of any of the documents requested by Plaintiff. Therefore, the Court finds it 5 in the interest of justice to authorize the issuance of a subpoena duces tecum commanding the 6 C.S.A.T.F. Director of Nursing to produce those documents identified by Plaintiff, if any exist. 7 Pursuant to Federal Rule of Civil Procedure 45(a)(4), this order serves as notice to the 8 parties that the United States Marshal will be directed to initiate service of the subpoena 9 following the passage of ten days from the date of service of this order, and a copy of the subpoena 10 shall be provided with this order. 11 IV. CONCLUSION 12 For the reasons set forth above, IT IS HEREBY ORDERED that: 13 1. 14 15 Plaintiff=s motion for the issuance of a subpoena duces tecum, filed on September 6, 2016, is GRANTED; 2. The Court authorizes the issuance of a subpoena duces tecum directing the 16 C.S.A.T.F. Director of Nursing to produce those documents requested by 17 Plaintiff listed in Attachment 1 to this Order; 18 3. Pursuant to Rule 45(a)(4), the parties are placed on notice that the subpoena 19 duces tecum will be issued after the passage of ten (10) days from the date of 20 service of this order; and 21 4. The Clerk’s Office shall serve a copy of the subpoena with this order. 22 23 24 25 IT IS SO ORDERED. Dated: March 6, 2017 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 26 27 28 3

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