(PC) Givens v. California Department of Corrections and Rehabilitation et al

Filing 76

ORDER signed by Magistrate Judge Kendall J. Newman on 09/15/22 DENYING 75 plaintiff's Request. Plaintiff's September 9, 2022 email to court personnel is DISREGARDED. (Plummer, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

FRANCOIS P. GIVENS,

12
13
14
15

Plaintiff,

No. 2:19-cv-0017 TLN KJN P
ORDER

v.
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et al.,

16

Defendants.

17
18

Plaintiff is a former state prisoner, proceeding pro se and in forma pauperis. On

19

September 12, 2022, plaintiff filed a request to subpoena certain documents from personnel

20

records of nonparty Dr. Harry Newman from nonparty Dr. Bick, Director of Health Care Services

21

for the California Correctional Health Care Services System. As discussed below, plaintiff’s

22

request is denied.

23

Initially, the undersigned notes that on September 9, 2022, plaintiff emailed court

24

personnel asking to withdraw the request for subpoena. However, on August 25, 2022, plaintiff’s

25

motion to participate in electronic case filing was denied. Plaintiff is advised that he may not

26

circumvent the requirement to file documents in paper form in this action by emailing court

27

personnel. Any communication pertinent to this action must be filed in this case so such

28

communications are a matter of record, and provide opposing parties notice of the
1

1

communication. Because opposing counsel did not receive notice of plaintiff’s email, the

2

undersigned cannot consider the email in addressing plaintiff’s request. In the future, plaintiff

3

shall refrain from emailing court personnel, and the court will not respond to any future emails.

4

Applicable Law

5

Pursuant to Federal Rule of Civil Procedure 45(a)(2), a subpoena duces tecum may direct

6

a non-party to an action to produce documents or other tangible objects for inspection. A

7

subpoena must be personally served or it is null and void. Fed. R. Civ. P. 45(c); Gillam v. A.

8

Shyman, Inc., 22 F.R.D. 475 (D. Alaska 1958). Because plaintiff is proceeding in forma

9

pauperis, he is entitled to obtain personal service of an authorized subpoena duces tecum by the

10

United States Marshal. 28 U.S.C. § 1915(d). However, this court must consider the following

11

limitations before directing the United States Marshal to personally serve a prisoner’s proposed

12

subpoena duces tecum.

13

A subpoena duces tecum is subject to the relevance standards set forth in Federal Rule of

14

Civil Procedure 26(b)(1) (“[p]arties may obtain discovery regarding any nonprivileged matter that

15

is relevant to any party’s claim or defense”), and the considerations of burden and expense set

16

forth in Federal Rules of Civil Procedure 26(b)(2) and 45(c)(1). The “Federal Rules of Civil

17

Procedure were not intended to burden a non-party with a duty to suffer excessive or unusual

18

expenses in order to comply with a subpoena duces tecum.” Badman v. Stark, 139 F.R.D. 601,

19

605 (M.D. Pa. 1991) (requiring indigent plaintiff to demonstrate that he had “made provision for

20

the costs of such discovery”) (citing Cantaline v. Raymark Industries, Inc., 103 F.R.D. 447, 450

21

(S.D. Fla.1984)); see also United States v. Columbia Broadcasting System, Inc., 666 F.2d 364

22

(9th Cir.1982) (court may award costs of compliance with subpoena to non-party). Non-parties

23

are “entitled to have the benefit of this Court’s vigilance” in considering these factors. Badman,

24

139 F.R.D. at 605. In addition, a motion authorizing service of a subpoena duces tecum must be

25

supported by: (1) clear identification of the documents sought and from whom, and (2) a showing

26

that the records are obtainable only through the identified third party. See, e.g., Davis v. Ramen,

27

2010 WL 1948560, *1 (E.D. Cal. 2010); Williams v. Adams, 2010 WL 148703, *1 (E.D. Cal.

28

2010).
2

1
2

Discussion
On July 26, 2022, decedent Dr. Harry Newman was dismissed from this action with

3

prejudice; because Dr. Newman died prior to the filing of this action, it was determined that he is

4

not a party to this action. (ECF Nos. 50, 65.) Because Dr. Newman is not a party, plaintiff fails

5

to demonstrate the records sought are relevant herein, and thus the burden on nonparty Dr. Bick is

6

unjustified. Plaintiff’s request is denied.

7

Accordingly, IT IS HEREBY ORDERED that:

8

1. Plaintiff’s September 9, 2022 email to court personnel is disregarded; and

9

2. Plaintiff’s request (ECF No. 75) is denied.

10

Dated: September 15, 2022

11
12
13
14

/give0017.sdt

15
16
17
18
19
20
21
22
23
24
25
26
27
28
3