Baldhosky v. Hubbard et al

Filing 95

ORDER GRANTING IN PART AND DENYING IN PART 75 Motion to Quash Subpoena, signed by Magistrate Judge Michael J. Seng on 05/05/2017. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RAYMOND BALDHOSKY ,

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Plaintiff,
v.
SUSAN HUBBARD, et al.,

CASE NO. 1:12-cv-01200-LJO-MJS (PC)
ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO QUASH
SUBPOENA
(ECF NO. 75)

Defendants.

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Plaintiff is a former state prisoner proceeding pro se in this civil rights action

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brought pursuant to 42 U.S.C. § 1983. On May 4, 2016, the Court screened Plaintiff’s

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third amended complaint and found that it stated cognizable claims against ten

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defendants: Dr. Gonzalez, Dr. Nguyen, Dr. Metts, Physician’s Assistant L. Peters,

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Physician’s Assistant T. Byers, Nurse T. Grossi, Nurse Ruff, Nurse Dunn, Nurse

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Indindes, and Nurse Amanda Kaylor. (ECF No. 31.)

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Before the Court is a motion to quash subpoena by real party in interest California

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Department of Corrections and Rehabilitation (“CDCR”). (ECF No. 75.) Plaintiff filed a

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response. (ECF Nos. 88, 89, 93.) CDCR filed a reply. (ECF No. 90.) The matter is

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submitted. Local Rule 230(l).

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I.

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Procedural History
The subpoena at issue on this motion arises out of a lengthy and cumbersome

effort to serve the Defendants in this case.

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Defendants Gonzalez, Metts, and Kaylor waived service early in this litigation.

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Duc Nguyen was served on behalf of Defendant Nguyen, but service on Mr. Nguyen was

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quashed. (ECF No. 60.) Summons for Defendants Indindes, Ruff, and Dunn were

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returned unexecuted. (ECF Nos. 45, 46, 67.) Waivers sent to Defendants Byers, Grossi,

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and Peters were not immediately returned and, for reasons that are presently unclear,

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the United States Marshals Service (“USM”) did not attempt personal service on these

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Defendants. (ECF No. 56.)

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The Court held two status conferences to attempt to resolve service issues. (ECF

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Nos. 64, 66.) In the latest of these, on January 12, 2017, counsel for Defendants

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Gonzalez, Metts, and Kaylor represented the following: Defendants Byers, Grossi, and

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Peters had received service packets and were expected to seek representation from the

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Office of the Attorney General; address information for the correct Defendant Nguyen

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had been given to USM; and CDCR was unwilling to provide information for Defendants

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Indindes, Ruff, and Dunn absent a court order. (ECF No. 66.) Accordingly, on February

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6, 2017, the Court granted Plaintiff’s oral motion for subpoena duces tecum and issued a

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subpoena directing CDCR to provide Plaintiff with certain documents regarding the

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unserved Defendants to assist with service of process. (ECF No. 71.) Defendants Byers,

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Grossi, and Peters since have appeared in the action and answered the complaint. (ECF

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No. 85.)

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II.

Discussion

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CDCR contends that the subpoena is moot as to Defendants Byers, Grossi, and

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Peters because they waived service and appeared in the action. (ECF No. 75.) Plaintiff

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agrees, “as long as this request does not waive any rights Plaintiff may have of discovery

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with CDCR and defendants.” (ECF No. 93.) As this subpoena was issued solely to obtain

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information necessary to serve the Defendants, the Court agrees that the subpoena is

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moot as to Byers, Grossi, and Peters. The subpoena will be quashed as to these

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Defendants.

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CDCR contends that the subpoena is moot as to Defendant Nguyen because

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“[t]he name and address of the registry for whom Mr. Nguyen works were previously

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provided to the U.S. Marshal for the purpose of effecting service of process .” (ECF No.

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75.) However, the docket in this case reflects no appearance from Defendant Nguyen.

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Representatives of USM have informed Court staff that waivers sent to the address

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provided by CDCR were never returned. Additionally, the address is inappropriate for

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personal service because it is a P.O. Box. In light of these circumstances, CDCR’s claim

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that the subpoena is moot strains credulity. The motion to quash will be denied.

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Nonetheless, CDCR asks that any confidential information associated with the

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subpoenas not be divulged to Plaintiff. Plaintiff states that he has no desire for the

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information, so long as the Defendants are served. Accordingly, in lieu of providing

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documents to Plaintiff, the Court will permit CDCR to submit the following information

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directly to the Court in camera: Defendant Nguyen’s full name, license number, registry

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name, registry phone number, if any, and registry address, including a physical address,

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if any. However, if Defendant Nguyen is not served or does not waive service within 60

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days of the date of this order, the Court will order the information released to Plaintiff so

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that he may conduct his own inquiries or seek further subpoenas to attempt to locate

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Defendant Nguyen for service.

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Based on the foregoing, it is HEREBY ORDERED that:
1. CDCR’s motion to quash is GRANTED IN PART AND DENIED IN PART
as set forth herein;
2. Within five (5) days of the date of this order, CDCR shall provide the

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following

information

to

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[e-mail]: Defendant Nguyen’s full name, license

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the

Court

in

camera

at

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number, registry name, registry phone number, if any, and registry

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address, including a physical address, if any.

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IT IS SO ORDERED.
Dated:

May 5, 2017

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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