Thomas v. Guffey, et al

Filing 63

ORDER signed by Magistrate Judge Kendall J. Newman on 03/13/15 granting 59 Motion for court assistance in serving subpoenas. The clerk of the court is directed to issue 1 blank subpoena to plaintiff. Within 21 days of the date of this order, pl aintiff shall send the completed subpoena to the United States Marshal's Office, 501 I Street, Sacramento, California 95814; within that time, plaintiff shall also file a notice with the court indicating that he sent the subpoena to the United States Marshal. The clerk of the court is directed to serve a copy of this order on the U.S. Marshal. (cc: USM priority) (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JASON LATRELL THOMAS,

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Plaintiff,

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No. 2: 14-cv-0066 JAM KJN P

v.

ORDER

GUFFY, et al.,

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Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. Pending before the court is plaintiff’s March 2, 2015 motion for court

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assistance in serving a subpoena. (ECF No. 59) For the reasons stated herein, plaintiff’s motion

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for assistance in serving the subpoena is granted.
Plaintiff requests that the court serve his subpoena on the Office of Internal Affairs in

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Sacramento. This subpoena, attached to plaintiff’s motion, requests production of,

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...officers statements per Internal Affairs reports and interviews of
all witnesses as well as final disposition of staff complaint 602 log
No. CSP-Sac T-13-0911 against CSP-Sacramento Officer R.
Guffee, Link Lopez and Ruiz.

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(ECF No. 59 at 6.)

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The internal affairs reports are the documents plaintiff sought from defendants in a motion

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to compel, discussed in a separate order. The undersigned found that defendants did not have

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these documents in their possession, custody or control.

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In his separately filed motion to modify the scheduling order (ECF No. 40), plaintiff

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stated that he served a subpoena on the Warden of California State Prison-Sacramento (“CSP-

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Sac”) requesting the Internal Affairs reports and interviews. In the motion to modify the

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scheduling order, plaintiff requested an extension of time to file a motion to compel regarding the

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response to that subpoena by the CSP-Sac Warden. In the order addressing the motion to modify

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the scheduling order, the undersigned reasonably inferred that the CSP-Sac Warden did not have

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these documents, as plaintiff had filed the pending motion indicating that he was now seeking

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them from the Office of Internal Affairs.

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The discovery deadline was October 24, 2014. (ECF No. 24.) However, the undersigned

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finds good cause to modify the scheduling order to allow plaintiff to serve the subpoena described

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above on the Office of Internal Affairs. Fed. R. Civ. P. 16(b). As discussed in the order

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addressing plaintiff’s motion to modify the scheduling order, plaintiff has been diligent in seeking

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the documents sought in the subpoena. Accordingly, the undersigned turns to plaintiff’s request

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for court assistance in serving this subpoena.

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Federal Rule of Civil Procedure 45 governs subpoenas issued to third parties. A subpoena

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is required to procure testimony or documents from one who is not a party to the action or

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controlled by a party to the action. Fed. R. Civ. P. 45. The subpoena must be served by a non-

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party who is at least eighteen years old. Fed. R. Civ. P. 45(b)(1). Service of a subpoena must be

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made by personally delivering a copy of the subpoena to the person being served and there is no

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substitute service. See Prescott v. County of Stanislaus, 2012 WL 10617, *3 (E.D. Cal. Jan .3,

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2012) (stating that “[p]ersonal service of a deposition subpoena is required by Fed.R.Civ.P.

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45(b)(1),” that “[a] majority of courts interpret ‘delivering’ to require personal service,” and

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noting that while “the Ninth Circuit has not issued a published opinion on this topic, more than a

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decade ago, in Chima v. United States Dep’t of Defense, 23 Fed. Appx. 721 at *6–7 (9th Cir.

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Dec. 14, 2001), the court issued an unpublished decision affirming trial court’s refusal to compel
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compliance with subpoena that was served by mail”) (citing San Francisco BART Dist. v.

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Spencer, 2006 WL 2734284 (N.D. Cal. Sept. 25, 2006); Alexander v. Cal. Dep't of Corr., 2011

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WL 1047647 (E.D. Cal. Mar. 16, 2011) (personal service required under Rule 45(b)(1)); and

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Collagen Nutraceuticals, Inc. v. Neocell Corp., 2010 WL 3719101 (S.D. Cal. Sept. 17, 2010)

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(“Rule 45 mandates personal service for subpoenas.”).

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In essence, plaintiff requests that the court direct the U.S. Marshal to serve his subpoena

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for him. The court must “issue and serve all process and perform all such duties” for a plaintiff

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proceeding in forma pauperis. 28 U.S.C.1915(d). Plaintiff, proceeding in forma pauperis, thus “is

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generally entitled to obtain service of a subpoena duces tecum by the United States Marshal. 28

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U.S.C.1915(d).” Heilman v. Lyons, 2010 WL 5168871, *1 (E.D. Cal. Dec.13, 2010); but see,

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Garcia v. Grimm, 2012 WL 216565, * 4 (S.D. Cal. Jan. 23, 2012) (citing Tedder v. Odel, 890

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F.2d 210, 211, 212 (9th Cir. 1989) (“Plaintiff, however, is responsible for paying all fees and

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costs associated with the subpoenas ....fees are not waived based on Plaintiff’s in forma pauperis

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status”).

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Because Federal Rule of Civil Procedure 45(b) requires personal service of a subpoena,

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“‘[d]irecting the Marshal’s Office to expend its resources personally serving a subpoena is not

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taken lightly by the court,’ Austin v. Winett, 2008 WL 5213414, *1 (E.D. Cal. 2008); 28 U.S.C. §

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1915(d).” Alexander v. California Dept. of Corr., 2010 WL 5114931, *3 (E.D. Cal. Dec. 9,

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2010).

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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); see also, United States v.
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. Alexander v. California Dept. of Corrections, 2010 WL
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5114931 * 3 (E.D. Cal. 2010).
Id.; Lopez v. Schwarzenegger, 2012 WL 78377 (E.D. Cal. Jan. 10, 2012) (same).
The information sought by plaintiff in the subpoena is relevant to this action. These

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documents are not obtainable from defendants. Accordingly, plaintiff’s motion for court

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assistance in serving the subpoena is granted.
However, the subpoena that plaintiff has submitted is defective inasmuch as it is not

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signed by the Clerk of the Court. Federal Rule of Civil Procedure 45(a)(3) requires that “[t]he

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clerk must issue a subpoena, signed but otherwise in blank, to a party who requests it. That party

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must complete it before service.” Therefore, at the outset, a new subpoena, blank but signed by

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the Clerk of the Court, must issue to plaintiff. Accordingly, the undersigned herein directs the

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Clerk of the Court to issue a blank subpoena to plaintiff. Plaintiff shall then complete the

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subpoena and return it to the United States Marshal’s Office.

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The undersigned also finds that the subpoena submitted by plaintiff does not describe the

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documents sought regarding the internal affairs investigation in sufficient detail. In the subpoena

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submitted to the United States Marshal’s Office, plaintiff shall describe the investigatory

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documents regarding the Internal Affairs investigation in more detail so that the Office of Internal

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Affairs is able to identify the documents sought. In addition to describing the documents as

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relating to the internal affairs investigation, plaintiff shall identify the date of the incident

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investigated ( i.e. March 4, 2013) and the persons involved (i.e., defendants Guffey, Link-Lopez

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and Ruiz).

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for court assistance in serving subpoenas (ECF No. 59) is granted;

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2. The Clerk of the Court is directed to issue one blank subpoena to plaintiff;

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3. Within twenty-one days of the date of this order, plaintiff shall send the completed

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subpoena to the United States Marshal’s Office, 501 I Street, Sacramento, California, 95814;

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within that time, plaintiff shall also file a notice with the court indicating that he sent the

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subpoena to the United States Marshal;

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4. The Clerk of the Court is directed to serve a copy of this order on the United States

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Marshal.

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Dated: March 13, 2015

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