Williams v. Romero et al

Filing 61

ORDER signed by Magistrate Judge Deborah Barnes on 7/2/2019 DENYING 56 Renewed Request for Subpoena. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LANCE WILLIAMS,

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No. 2:17-cv-1884 TLN DB P

Plaintiff,

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v.

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ROMERO, et al.,

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ORDER

Defendants.

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Plaintiff is a state prisoner proceeding pro se with an action under 42 U.S.C. § 1983.

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Plaintiff alleges excessive force and deliberate indifference to his medical needs when he was

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trapped by a mechanical sliding door. On March 29, 2019, plaintiff filed a request for the

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issuance of subpoenas. (ECF No. 53.) The court denied that request. (ECF No. 54.) In that

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April 12 order, the court construed plaintiff’s request for a subpoena to inspect the site at issue as

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a request that plaintiff himself be permitted to inspect the site. (Id. at 2.)

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On April 26, plaintiff filed a document in which he explained that he intends to have a

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third party perform an inspection of the site. (ECF No. 56.) The court construed plaintiff’s filing

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as a renewed motion for a subpoena to inspect premises and ordered defendants to respond.

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Defendants filed a response and plaintiff filed a reply. (ECF Nos. 58, 59.)

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Federal Rule of Civil Procedure 45 authorizes the issuance of a subpoena commanding the
person to whom it is directed to permit inspection of a premises. Fed. R. Civ. P. 45(a)(1)(A)(iii).
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A subpoena must be personally served or it is null and void. Fed. R. Civ. P. 45(c); Gillam v. A.

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Shyman, Inc., 22 F.R.D. 475 (D. Alaska 1958). Because plaintiff is not proceeding in forma

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pauperis, he has no right to have the U.S. Marshal serve a subpoena on his behalf.

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This court must consider the following matters before authorizing issuance of a proposed

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subpoena for inspection. A subpoena must comply with the relevance standards set forth in

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Federal Rule of Civil Procedure 26(b)(1) (“[p]arties may obtain discovery regarding any

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nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs

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of the case”), and considerations of burden and expense set forth in Federal Rules of Civil

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Procedure 26(b)(2)(C) and 45(d). In determining the propriety of the inspection sought, this court

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must consider “the importance of the issues at stake in the action, the amount in controversy, the

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parties’ relative access to relevant information, the parties’ resources, the importance of the

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discovery in resolving the issues, and whether the burden or expense of the proposed discovery

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outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1).

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The “Federal Rules of Civil Procedure were not intended to burden a non-party with a

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duty to suffer excessive or unusual expenses in order to comply with a subpoena . . .” Badman v.

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Stark, 139 F.R.D. 601, 605 (M.D. Pa. 1991) (requiring indigent plaintiff to demonstrate that he

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had “made provision for the costs of such discovery”) (citing Cantaline v. Raymark Industries,

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Inc., 103 F.R.D. 447, 450 (S.D. Fla. 1984)); see also United States v. Columbia Broadcasting

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System, Inc., 666 F.2d 364 (9th Cir. 1982) (court may award costs of compliance with subpoena

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to non-party). Therefore, in a request for issuance of a subpoena directed to a third party, plaintiff

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must explain clearly what he seeks and why he can only obtain this information by an inspection.

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Cf., Davis v. Ramen, No. 1:06-cv-1216 AWI-SKO PC, 2010 WL 1948560, *1 (E.D. Cal. May 11,

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2010). Non-parties are “entitled to have the benefit of this Court’s vigilance” in considering

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these factors. Badman, 139 F.R.D. at 605; Austin v. Winett, No. 1:04-cv-5104 DLB PC, 2008

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WL 5213414, *1 (E.D. Cal. Dec. 12, 2008)

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This court finds plaintiff fails to establish a need for a Rule 45 subpoena and fails to show

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how he would pay for the costs of service of the subpoena, fails to identify who would conduct

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the inspection, and fails to show how he would pay for that inspection. With respect to the
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relevance of plaintiff’s request, he argues only that he needs an inspection to show a jury how he

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received his injuries and how defendants acted with malice. However, plaintiff fails to show why

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a diagram of the mechanical door and/or a description of how it works would not be sufficient.

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Nor does plaintiff show why an inspection would be relevant to defendants’ intent.

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With respect to the costs of plaintiff’s request, he states only that he will “hire whoever he

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chooses.” He further states that the inspector could be a “friend or family” member. That

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description is too vague – plaintiff must identify who would conduct the inspection, show that

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person is qualified to do so, and show the person would be permitted to do so by the prison. He

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also adds that private investigator Ken Sheppard “may” perform the inspection pro bono.

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However, he does not indicate he has been in contact with Mr. Sheppard and that Mr. Sheppard

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would, in fact, be willing to do so.

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For these reasons, this court finds plaintiff fails to establish a basis for the issuance of a

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subpoena for the inspection of the site at issue in his complaint. Accordingly, IT IS HEREBY

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ORDERED that plaintiff’s renewed request for a subpoena (ECF No. 56) is denied.

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Dated: July 2, 2019

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DLB:9
DB/prisoner-civil rights/will1884.subp(2)

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