Frazier v. Redding Police Department et al

Filing 88

ORDER signed by Magistrate Judge Allison Claire on 1/08/13 ordering the U.S. Marshal provide personal service of plaintiff's subpoena duces tecum upon the Shasta County Public Defender's Office within 14 days. A copy of this order is to b e served upon the U.S. Marshal's office along with plaintiff's subpoena duces tecum directed to the Shasta County Public Defender's Office. Plaintiff's request for service of the remaining 3 subpoenas duces tecum upon non-parties without pre-payment of the Marshal's costs of service is denied. The clerk of the court is to return the 3 unserved subpoenas to plaintiff with this order. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MATTHEW LUCAS FRAZIER,

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Plaintiff,

No. 2:11-cv-1351 AC P

vs.
REDDING POLICE DEPT., et al.,
Defendants.

ORDER
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis pursuant to

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42 U.S.C. § 1983. Plaintiff alleges defendants Redding Police Department and Officers Rhoads

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and Zufall used excessive force in arresting him on September 26, 2010.

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By order filed on November 19, 2012, plaintiff was provided additional blank

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subpoena duces tecum forms to serve non-parties because the ones provided previously by the

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Clerk’s office had evidently not been signed by the Clerk of the Court in conformance with Fed.

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R. Civ. P. 45(a)(3). See Doc. No. 75. Plaintiff has now submitted four subpoena duces tecum

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forms directed to the following non-parties: the Shasta County Sheriff’s Department; the Shasta

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County Public Defender’s office; the Redding Parole Unit; and Shascom 911.

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What plaintiff has not done, however, is to provide the fees required to serve his

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subpoenas, which he has been repeatedly cautioned to do. Tedder v. Odel, 890 F.2d 210, 211-12

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(9th Cir. 1989) (fees/costs associated with subpoenas not waived based on plaintiff’s in forma

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pauperis status). Plaintiff was also, however, informed that in limited circumstances a court

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might authorize personal service of a subpoena duces tecum by the U.S. Marshal on behalf of a

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pro se prisoner litigant proceeding in forma pauperis. See Doc. No. 75, p. 13. The court must

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weigh “the relevance of the information sought as well as the burden and expense to the

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non-party in providing the requested information. Fed. R. Civ. P. 26, 45.” Alexander v. CDCR,

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2010 WL 5114931 * 3 (E.D. Cal. Dec. 9, 2010); see also, Heilman v. Lyons, 2010 WL 5168871

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*1 (E.D. Cal. Dec. 13, 2010) (internal citations omitted). Service may be directed only if

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plaintiff provides “clear identification of the documents sought and a showing that the records

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are obtainable only through the identified third party.” Id.

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In the subpoena directed to the non-party Shasta County Sheriff’s Department,

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plaintiff provides specific information identifying himself and seeks all records of his intake

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process at Shasta County Jail “from 9/26/10 to the present,” including any video recording, as

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well as all medical requests, medical evaluations, medical records and “pictur[e]s of incident of

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Frazier 6/3/11 and all medical evaluation and treatment, and records of staff that worked through

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the said date.” To the extent that plaintiff seeks records of his intake on September 26, 2010 at

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Shasta County Jail, medical requests, evaluations, records and photographs, if any, regarding his

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physical condition immediately following the incident at issue, the materials sought could be

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highly relevant to plaintiff’s claims of excessive force. However, there does not appear to be any

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basis for seeking records up to the present date, or for example, on June 3, 2011. Plaintiff has

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not explained the relevance of such material.

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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); see also, United States v.

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Columbia Broadcasting System, Inc., 666 F.2d 364 (9th Cir.1982)
(court may award costs of compliance with subpoena to
non-party). Non-parties are “entitled to have the benefit of this
Court’s vigilance” in considering these factors. Badman, 139
F.R.D. at 605.

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Alexander v. CDCR, 2010 WL 5114931 * 3.

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“It is possible for a subpoena duces tecum to be unreasonable or oppressive, even

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though the evidence sought to be procured is proved to be thereafter relevant at the trial.”

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Badman, 139 F.R.D. at 605. For these reasons, the court will not direct the Marshal to serve this

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subpoena absent plaintiff’s payment of costs for personal service.

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As to plaintiff’s subpoena directed to the Shasta County Public Defender’s Office,

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plaintiff seeks “all electronically stored information of case # F-10-6928” (presumably the

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number of plaintiff’s state criminal case relating to his September 26, 2010 arrest). He wants

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access to “photos of the incident on September 26, 2010” and “[a]ll recordings of tapes [sic] of

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that case, hospital and parole hearing.” He also seeks to command production of recordings of

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“dis[patch] call of 911 calls and radio between officers, and any and all documents ...

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subpoenaed in that case.” While plaintiff’s requests for “any and all documents” the public

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defender subpoenaed in his criminal case is arguably overbroad, plaintiff’s focus is on recordings

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and photographs concerning the September 26, 2010 incident at issue in this case. Such

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materials are indisputably central to the litigation of the claim. The court will direct the U.S.

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Marshal to serve this subpoena on the Shasta County Public Defender’s Office.

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As to the remaining subpoenas directed to non-parties Redding Parole Unit and

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Shascom 911, for the reasons already set forth in the court’s order, filed on November 19, 2012,

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these subpoenas will not be served unless plaintiff provides payment for the costs of personal

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service.

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Accordingly, IT IS ORDERED that:

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1. The U.S. Marshal provide personal service of plaintiff’s subpoena duces tecum

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upon the Shasta County Public Defender’s Office within fourteen (14) days;

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2. A copy of this order is to be served upon the U.S. Marshal’s office, along with
plaintiff’s subpoena duces tecum directed to the Shasta County Public Defender’s Office;

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3. Plaintiff’s request for service of the remaining three subpoenas duces tecum
upon non-parties without pre-payment of the Marshal’s costs of service is denied;

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4. The Clerk of the Court is to return the three unserved subpoenas to plaintiff

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with this order.

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DATED: January 8, 2013.

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ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE

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fraz1351.ord8

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