Willis v. Weeks

Filing 55

ORDER signed by Magistrate Judge Dale A. Drozd on 7/5/2011 DENYING 28 Motion to Quash. (Zignago, K.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT WILLIS,

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Plaintiff,

No. CIV S-09-0342 MCE DAD P

Defendant.

ORDER

vs.
R. WEEKS,

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/
Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42
U.S.C. § 1983. Pending before the court is plaintiff’s motion to quash.
In his motion, plaintiff asks the court to quash a civil subpoena issued by defense

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counsel commanding Litigation Coordinator Andrew Pitoniack at California Men’s Colony to

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produce for inspection and copying “Any and all of Plaintiff Robert Willis’ mental and

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psychiatric records from September 2002 to the present.” Plaintiff argues that his mental and

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psychiatric records are privileged. He also argues that Mr. Pitoniack is not a party to this action,

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and that the subpoena in question would require Litigation Coordinator Pitoniack to travel more

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than 100 miles.

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In opposition to plaintiff’s motion, defense counsel argues that plaintiff has put

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his mental health at issue in this action by claiming that he suffers from mental and emotional
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distress and needs to take psycho-tropic medications as a result of the defendant’s alleged

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conduct. Defense counsel also argues that plaintiff has put his mental health at issue by relying

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on that condition to justify his late-filing of this action.

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The court must quash or modify a subpoena that requires the disclosure of

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privileged or other protected matter, or subjects a person to undue burden. See Fed. R. Civ. P.

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45(c)(3)(A). Here, the undersigned finds that plaintiff’s mental health history is relevant and that

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plaintiff has waived his right to assert privilege by putting his mental health at issue in this civil

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action. As an initial matter, plaintiff claims that defendant Weeks’ conduct on September 21,

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2002, has caused him post-traumatic stress disorder and forced him to undergo mental health

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treatment and take psycho-tropic medications. Plaintiff’s allegations in this regard go to the heart

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of any potential damages he may recover if successful in this action.

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Moreover, the court previously denied defendant’s motion to dismiss on statute of

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limitations grounds because the court determined that plaintiff had presented sufficient evidence

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that he was “incapable of caring for his property or transacting business from 1996 to at least July

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1, 2008” as a result of one of his mental health conditions. The court denied defendant’s motion

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to dismiss on statute of limitations grounds without prejudice to the defendant reasserting the

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statute of limitations defense in a motion for summary judgment. In plaintiff’s recently-filed

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motion for summary judgment, he argues that his complaint is timely and that he is entitled to

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equitable tolling of the statute of limitations because of his mental health status. In support of his

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argument, plaintiff relies on portions of his prison mental health records. It would be improper

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for the court to allow plaintiff to have the benefit of his mental health records without giving

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defense counsel access to the same.

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Finally, to the extent that plaintiff has asserted an objection to the subpoena on the

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grounds that the requested production is unduly burdensome, he lacks standing to do so because

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he is not the party bearing the burden of production. To date, Litigation Coordinator Pitoniack

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has not filed any objections based upon the burden of the production called for by the subpoena.
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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion to quash (Doc.

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No. 28) is denied.

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DATED: July 5, 2011.

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DAD:9
will0342.quash

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