Long v. Corizon Health, Inc. et al.

Filing 33

ORDER DISCHARGING 31 ORDER TO SHOW CAUSE ; ORDER GRANTING 30 PLAINTIFF'S Motion for a Subpoena, signed by Magistrate Judge Jennifer L. Thurston on 02/17/2021. ( Case Management Deadline: 20-Day Deadline) (Copy of this order mailed to : Matthew M. Grigg as ordered and Subpoena, Amended Complaint 9 , USM 285 Form and (2) copies of this order forwarded to USM-FRS)(Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 14 15 ORDER DISCHARING ORDER TO SHOW CAUSE; AND Plaintiff, 12 13 CASE NO. 1:17-cv-0898-NONE-JLT (PC) PHILLIP J. LONG, v. ORDER GRANTING PLAINTIFF’S MOTION FOR A SUBPOENA JANE DOE, (Docs. 30, 31) Defendant. 16 17 This action proceeds against a single defendant, Jane Doe, on an Eighth Amendment 18 medical indifference claim. (Docs. 11, 12.) Jane Doe is a nurse with the company Corizon Health, 19 Inc., which contracts with the Fresno County Jail to provide medical services to the jail inmates. 20 Plaintiff has twice sought Jane Doe’s identity by serving a subpoena on Corizon Health. In response 21 to his first subpoena, counsel for Corizon Health responded that the subpoena was too vague. The 22 Court then issued an amended subpoena for Plaintiff on April 16, 2020, who provided further 23 details to assist in identifying Jane Doe. (Doc. 26.) Plaintiff recently submitted a filing indicating 24 that counsel for Corizon Health has not responded to the amended subpoena. 25 On January 26, 2021, the Court ordered counsel for Corizon Health to show cause for the 26 failure to respond to a subpoena. (Doc. 31.) Counsel answered to the order, stating that he 27 responded to the subpoena informing plaintiff that he does not have any records within his 28 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 possession, custody, or control that reflect who treated him on July 8, 2016. (Doc. 32.) In light of this response, the order to show cause will be discharged. Plaintiff has filed another motion for a subpoena directed to the California Department of Corrections and Rehabilitation to identify Jane Doe. The Court’s authorization of a subpoena duces tecum requested by an in forma pauperis plaintiff is subject to limitations. Because personal service of a subpoena duces tecum is required, Federal Rule of Civil Procedure 45(b), “[d]irecting the Marshal's Office to expend its resources personally serving a subpoena is not taken lightly by the court,” Austin v. Winett, 2008 WL 5213414, *1 (E.D. Cal. 2008); 28 U.S.C. § 1915(d). Limitations include the relevance of the information sought as well as the burden and expense to the non-party in providing the requested information. Fed. R. Civ. P. 26, 45. A motion for issuance of a subpoena duces tecum should be supported by clear identification of the documents sought and a showing that the records are obtainable only through the identified third party. See, e.g., Davis v. Ramen, 2010 WL 1948560, *1 (E.D. Cal. 2010); Williams v. Adams, 2010 WL 148703, *1 (E.D. Cal. 2010). The “Federal Rules of Civil Procedure were not intended to burden a non-party with a duty to suffer excessive or unusual expenses in order to comply with a subpoena duces tecum.” Badman v. Stark, 139 F.R.D. 601, 605 (M.D. Pa. 1991). Non-parties are “entitled to have the benefit of this Court's vigilance” in considering these factors. Id. Plaintiff motion and the allegations in the pleading are sufficiently specific as to the information sought: a female nurse who worked at the North Annex Jail division of the Fresno County Jail on July 8, 2016, between the hours of 2:00 p.m. and 5:00 p.m. The identity of this individual is critical in order for plaintiff to proceed with this action. The motion, however, is improperly directed to the CDCR, the State of California’s prison system, which is unaffiliated with the Fresno County Sheriff’s Office, a division of Fresno County. The Court will therefore construe plaintiff’s motion as seeking a subpoena to be served on the Fresno County Jail. Accordingly, the Court ORDERS as follows: 1. The order to show cause (Doc. 31) is DISCHARGED, and the Clerk of Court is directed to serve a copy of this order on the following: 28 2 1 2 MATTHEW M. GRIGG Law Offices of Matthew M. Grigg 1700 N. Broadway, Ste. 360 Walnut Creek, CA 94596 3 2. Plaintiff’s motion for subpoena (Doc. 30) is GRANTED; 4 3. The Clerk of Court shall forward the following documents to the United States 5 6 7 8 9 Marshal (USM): a. One completed and issued subpoena duces tecum to be served on: Litigation Coordinator Fresno County Jail North Annex Jail 1265 M Street Fresno, CA 93721 10 b. One copy of the second amended complaint (Doc. 9); 11 c. One completed USM–285 form; and 12 d. Two copies of this order, one to accompany the subpoena and one for the 13 14 15 USM; 4. In completing the subpoena, the Clerk of Court shall list, as described here, the documents requested: 16 Documents identifying the name of Jane Doe, a female nurse who 17 worked at the North Annex Jail in Fresno, California on July 8, 2016. 18 On that date, plaintiff was housed in Bed # 39 in the D Pod on the 19 fourth floor of the North Annex Jail, his injury occurred in the gym 20 facility on the fourth floor at approximately 2 p.m., and the female 21 nurse would have treated plaintiff between 2 p.m. and 5 p.m. 22 5. Within twenty days from the date of this order, the USM is DIRECTED to serve the 23 subpoena in accordance with the provisions of Rule 45 of the Federal Rules of Civil 24 Procedure; 25 26 6. The USM shall effect personal service of the subpoena duces tecum, along with a copy of this order and a copy of the second amended complaint, upon the individual/entity 27 28 3 named in the subpoena pursuant to Rule 45 of the Federal Rules of Civil Procedure 1 and 28 U.S.C. § 566(c); 2 3 7. Within ten days after personal service is effected, the USM shall file the return of service, along with the costs subsequently incurred in effecting service, and said costs 4 shall be enumerated on the USM–285 form; and 5 6 8. Within thirty days after service is effected, the Fresno County Jail Litigation Coordinator is directed to serve the responsive documents on plaintiff: Phillip J. Long BJ-2973 Ironwood State Prison (“ISP-2) P.O. Box 2199 Blythe, CA 92226-2199 7 8 9 10 9. Within fourteen days upon receipt of the documents identifying Jane Doe, plaintiff is 11 directed to submit a notice with the Court, upon which he will then be directed to 12 submit documents necessary to effectuate service. 13 14 15 16 IT IS SO ORDERED. Dated: February 17, 2021 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 4

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