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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBIN DASENBROCK,

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Plaintiff,

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vs.

1:11-cv-01884-DAD-GSA-PC
ORDER GRANTING PLAINTIFF=S
MOTION FOR SUBPOENA DUCES
TECUM
(ECF No. 199.)

A. ENENMOH, et al.,

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Defendants.

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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

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I.

BACKGROUND

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Robin Dasenbrock (“Plaintiff”) is a state prisoner proceeding pro se with this civil

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rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this

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action on November 14, 2011. (ECF No. 1.) This case now proceeds with Plaintiff’s Second

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Amended Complaint filed on September 8, 2015, against defendants Dr. A. Enenmoh,

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Correctional Officer Perez, Nurse Page, and Nurse Adair on Plaintiff’s claims of violation of

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the Eighth Amendment and negligence. (ECF No. 140.)
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On September 6, 2016, Plaintiff filed a motion requesting issuance of a subpoena duces

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tecum. (ECF No. 199.) Defendants have not filed an opposition.

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II.

MOTION FOR ISSUANCE OF SUBPOENA DUCES TECUM

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Plaintiff requests issuance of a subpoena duces tecum commanding third party Office of

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the Director of Nursing at the California Substance Abuse Treatment Facility (“C.S.A.T.F.”) to

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produce documents that defendant Adair did not produce pursuant to Plaintiff’s request for

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production of documents. Plaintiff declares, “On Aug. 5, 2016 Defendant Adair responded to

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my Production of Document request by sending no documents, stating she was no longer

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affiliated with Corcoran Prison, and does not have access to any such records – and that the

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requested documents were not in her possession, custody or control.” (Dasenbrock Decl., ECF

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No. 199 at 3¶3.) Plaintiff provides a copy of defendant Adair’s August 5, 2016 responses.

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(ECF No. 199 at 8-17.)

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Plaintiff declares that he had this same problem obtaining documents from defendant

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Page, and since both defendants are nurses, he believes the ODN has the documents he

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requested from defendant Adair. (Dasenbrock Decl. at 3 ¶4.) Plaintiff also declares that the

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Director of Nursing did provide these same documents concerning defendant Page after the

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court issued a subpoena, (ECF No. 157), and he anticipates that the Director of Nursing will

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provide the documents requested concerning defendant Adair if the court issues a subpoena

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again. (Id.)

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III.

DISCUSSION

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Plaintiff has demonstrated that he made a request to defendant Adair for production of

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documents and is unable to obtain the documents from her, and it appears from Plaintiff’s

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account of his experience with defendant Page that the records he seeks are only obtainable

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through the Director of Nursing.

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documents he seeks from the Director of Nursing, C.S.A.T.F., which are the same documents

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Plaintiff requested from defendant Adair in Plaintiff’s request for production of documents.

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(See ECF No. 199, Attachments.)

Fed. R. Civ. P. 34(a), 45.

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Plaintiff has identified the

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The court’s order of June 24, 2016, granted Plaintiff and defendant Adair leave to file

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motions to compel if necessary. (ECF No. 182.) In this instance, it would be futile for Plaintiff

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to file a motion to compel as defendant Adair has responded that she is not in possession,

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custody, or control of any of the documents requested by Plaintiff. Therefore, the Court finds it

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in the interest of justice to authorize the issuance of a subpoena duces tecum commanding the

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C.S.A.T.F. Director of Nursing to produce those documents identified by Plaintiff, if any exist.

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Pursuant to Federal Rule of Civil Procedure 45(a)(4), this order serves as notice to the

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parties that the United States Marshal will be directed to initiate service of the subpoena

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following the passage of ten days from the date of service of this order, and a copy of the subpoena

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shall be provided with this order.

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IV.

CONCLUSION

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For the reasons set forth above, IT IS HEREBY ORDERED that:

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1.

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Plaintiff=s motion for the issuance of a subpoena duces tecum, filed on
September 6, 2016, is GRANTED;

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The Court authorizes the issuance of a subpoena duces tecum directing the

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C.S.A.T.F. Director of Nursing to produce those documents requested by

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Plaintiff listed in Attachment 1 to this Order;

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3.

Pursuant to Rule 45(a)(4), the parties are placed on notice that the subpoena

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duces tecum will be issued after the passage of ten (10) days from the date of

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service of this order; and

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4.

The Clerk’s Office shall serve a copy of the subpoena with this order.

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IT IS SO ORDERED.
Dated:

March 6, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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