Baldhosky v. Hubbard et al

Filing 71

ORDER GRANTING Oral Motion for Issuance of Subpoena Duces Tecum 66 ; ORDER DIRECTING Personal Service of Subpoena Duces Tecum by United States Marshals Service without Prepayment of Costs on California Department of Corrections and Rehabilitation, Office of the Secretary, signed by Magistrate Judge Michael J. Seng on 02/03/2017.(Case Management Deadline: 20-Day Deadline) (Martin-Gill, S)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 RAYMOND BALDHOSKY , 10 Plaintiff, 11 12 v. SUSAN HUBBARD, et al., 13 Defendants. 14 15 16 CASE NO. 1:12-cv-01200-LJO-MJS (PC) ORDER GRANTING ORAL MOTION FOR ISSUANCE OF SUBPOENA DUCES TECUM (ECF No. 66) ORDER DIRECTING PERSONAL SERVICE OF SUBPOENA DUCES TECUM BY UNITED STATES MARSHALS SERVICE WITHOUT PREPAYMENT OF COSTS 17 18 19 20 21 22 I. Procedural History Plaintiff is a former state prisoner proceeding pro se in this civil rights action brought pursuant to 42 U.S.C. § 1983. On May 4, 2016, the Court screened Plaintiff’s third amended complaint and found that it stated cognizable claims against ten 23 defendants: Dr. Gonzalez, Dr. Nguyen, Dr. Metts, Physician’s Assistant L. Peters, 24 Physician’s Assistant T. Byers, Nurse T. Grossi, Nurse Ruff, Nurse Indindes, and Nurse 25 26 27 Amanda Kaylor. (ECF No. 31.) Defendants Gonzalez, Metts, and Kaylor waived service and filed a motion to dismiss. Duc Nguyen was served on behalf of Defendant Nguyen, but service on Mr. 28 1 1 Nguyen was quashed. (ECF No. 60.) The remaining summons were returned 2 unexecuted. 3 The Court has held two status conferences to attempt to resolve service issues. 4 (ECF Nos. 64, 66.) Therein and subsequent thereto, counsel for Defendants Gonzalez, 5 Metts, and Kaylor represented that Defendants Byers, Grossi, and Peters had executed 6 service waivers and were expected to seek representation from the Office of the 7 Attorney General. To date, however, these waivers have not been filed with the Court 8 and these Defendants have not appeared in the action. 9 Defense counsel also indicated that the United States Marshals Service and 10 California Correctional Healthcare Services were coordinating to re-attempt service on 11 Dr. Thomas Nguyen. Again, however, no waiver from Dr. Nguyen has been filed with the 12 Court and he has not appeared in the action. 13 Defendants Indindes, Ruff, and Dunn are no longer employed by the California 14 Department of Corrections and Rehabilitation (“CDCR”) and their full names and 15 whereabouts are unknown to Plaintiff. Defense counsel has indicated that CDCR is 16 unable to provide information regarding Defendants Indindes, Ruff, and Dunn to the 17 Court or Marshals Service absent a court order or subpoena. When asked whether 18 CDCR would comply with a court order in this case where it is not a Defendant, counsel 19 was unable to respond affirmatively. Accordingly, it appears that the only option for 20 Plaintiff to proceed with service on these Defendants is by obtaining further information 21 by way of subpoena. 22 II. Legal Standard 23 The court's authorization of a subpoena duces tecum requested by an in forma 24 pauperis plaintiff is subject to limitations. Because personal service of a subpoena duces 25 tecum is required, Federal Rule of Civil Procedure 45(b), “[d]irecting the Marshal's Office 26 to expend its resources personally serving a subpoena is not taken lightly by the court,” 27 Austin v. Winett, 2008 WL 5213414, *1 (E.D.Cal.2008); 28 U.S.C. § 1915(d). Limitations 28 2 1 include the relevance of the information sought as well as the burden and expense to the 2 non-party in providing the requested information. Fed. R. Civ. P. 26, 45. A motion for 3 issuance of a subpoena duces tecum should be supported by clear identification of the 4 documents sought and a showing that the records are obtainable only through the 5 identified third party. See, e.g., Davis v. Ramen, 2010 WL 1948560, *1 (E.D.Cal.2010); 6 Williams v. Adams, 2010 WL 148703, *1 (E.D.Cal.2010). The “Federal Rules of Civil 7 Procedure were not intended to burden a non-party with a duty to suffer excessive or 8 unusual expenses in order to comply with a subpoena duces tecum.” Badman v. Stark, 9 139 F.R.D. 601, 605 (M.D.Pa.1991). Non-parties are “entitled to have the benefit of this 10 Court's vigilance” in considering these factors. Id. 11 III. Discussion 12 The Court concludes that Plaintiff is entitled to obtain documents from CDCR 13 containing the following information regarding Defendants Byers, Peters, Grossi, 14 Nguyen, Indindes, Ruff, and Dunn, in order to identify, locate, and serve them: first and 15 last names, dates of birth, last known addresses, last known phone numbers, and 16 license numbers (if applicable). To the extent this information is maintained by a registry 17 or contracting agency and is not available to CDCR, Plaintiff is entitled to documents 18 containing the name and contact information for the registry or contracting agency. The 19 information is highly relevant, otherwise unavailable to Plaintiff, and imposes little, if any 20 burden on the responding party. 21 Defendants Gonzalez, Kaylor, and Metts were given notice of the possibility that 22 subpoenas would issue seeking this identifying information for unserved Defendants. 23 (See ECF Nos. 59, 64, 66.) The Court concludes that no further notice is necessary. See 24 Fed. R. Civ. P. 45(a)(4). 25 III. 26 27 Conclusion and Order Based on the foregoing, it is HEREBY ORDERED thatPlaintiff’s oral motion for subpoena duces tecum is GRANTED consistent with this order: 28 3 1 1. The issuance of subpoenas duces tecum directing the Secretary of the 2 California Department of Corrections and Rehabilitation to produce responsive 3 documents to the request as set forth above is hereby authorized; 4 2. The Clerk of Court shall forward the following documents to the United States 5 Marshal (USM): 6 a. One (1) completed and issued subpoena duces tecum to be served on: California Department of Corrections and Rehabilitation Office of the Secretary 1515 S Street Sacramento, CA 95811 7 8 9 b. One (1) completed USM-285 form; and 10 c. Two (2) copies of this order, one to accompany the subpoena and one 11 12 for the USM; 3. Within twenty (20) days from the date of this order, the USM is DIRECTED to 13 serve the subpoenas in accordance with the provisions of Rule 45 of the 14 15 Federal Rules of Civil Procedure; 4. The USM shall effect personal service of the subpoena duces tecum, along 16 with a copy of this order, upon the individual/entity named in the subpoena 17 pursuant to Rule 45 of the Federal Rules of Civil Procedure and 28 U.S.C. 18 19 §566(c); and 5. Within ten (10) days after personal service is effected, the USM shall file the 20 return of service, along with the costs subsequently incurred in effecting 21 service, and said costs shall be enumerated on the USM-285 form. 22 23 IT IS SO ORDERED. 24 25 Dated: February 3, 2017 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 26 27 28 4

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