Hicks v. Neal et al

Filing 49

ORDER DENYING PLAINTIFF'S MOTION TO COMPEL AND PLAINTIFF'S MOTION FOR SERVICE OF SUBPOENAS 40 43 (Illston, Susan) (Filed on 4/18/2013)

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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MICHAEL J. HICKS,
Plaintiff,

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United States District Court
For the Northern District of California

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ORDER DENYING PLAINTIFF'S
MOTION TO COMPEL AND
PLAINTIFF'S MOTION FOR
SERVICE OF SUBPOENAS

v.
LINDA NEAL; et al.,

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Defendants.
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No. C 12-2207 SI (pr)

A.

Plaintiff's Motion To Compel

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Plaintiff, Michael Hicks, has moved to compel production of documents. Defendants

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stated in their opposition that, after the motion was filed, they served their responses and

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produced the documents. Docket # 44, p. 3. Hicks did not file a reply to the opposition, or

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otherwise dispute this assertion. Hicks' motion to compel discovery therefore is DENIED.

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(Docket # 40.)

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Hicks' request for sanctions in that same motion is DENIED. Defendants' explanation

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of their delay in responding due to their confusion about the discovery requests is convincing;

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the court also has experienced some confusion about some of Hicks' filings that are not clearly

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labeled about which defendant(s) they pertain to and that arrive in several parts. For example,

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Hicks' earlier motions to quash subpoenas came in four parts (Docket #s 22, 23, 26, and 27),

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followed by a reply in two parts (Docket #s 33 and 34), followed by a supplement (Docket # 39).

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Sanctions against defendants are not warranted here.

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The parties' submissions show a potential problem that can easily be solved. Hicks stated

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that he received a document production on a compact disk (“CD”), which was confiscated at the

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prison as contraband. See Docket # 42, ¶. 1-2. It is unrealistic to expect that a prisoner will

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have ready access to a computer to view documents contained on a CD. If defendants did not

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produce a paper copy of the documents, and only produced a CD containing electronic images

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of documents, they must mail a paper copy of the documents to Hicks no later than May 3, 2013.

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B.

Plaintiff's Motion To Have Marshal Serve Subpoenas.

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In this action, Hicks sues several mental health care providers for deliberate indifference

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to his serious mental health needs. The events and omissions giving rise to Hicks' claims

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occurred in and after October 2011 at Salinas Valley State Prison. When he filed his complaint,

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Hicks also filed a motion for a preliminary inunction, which the court denied because Hicks had

United States District Court
For the Northern District of California

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"completely failed to show a likelihood of success on the merits." Docket # 7, p. 4.1

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Several months ago, Hicks objected when defendant attempted to subpoena his prison

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medical records. The court denied the motion to quash, finding the records to be discoverable:

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From the limited record before the court, it appears that issues in this case include the
nature of plaintiff's mental illness(es), the appropriate treatment(s) for the mental
illness(es), and the connection between his suicidal thoughts and particular mental
illness(es). He appears to disagree with defendants' diagnoses and course of treatment.
Plaintiff's prison medical records would include his mental health records, information
about his suicidal activities, his requests for care, and the treatment program he entered.
These are documents that are relevant to the claims and defenses in this action, and
therefore are discoverable. See Fed. R. Civ. P. 26(b). In light of the absence of a firm
starting date for the mental illness that is critical to plaintiff's claim and his claimed
ongoing problems and need for treatment, defendants may have discovery of plaintiff's
medical records for his entire stay in the prison system.

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Docket # 35, p. 3.

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Although Hicks objected to defendants' efforts to obtain his prison medical records, he

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has now changed course and apparently decided he should go fishing for even more records.

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Hicks asks the court to order the Marshal to serve three subpoenas for some very old medical

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records. He wants to subpoena (1) Atascadero State Hospital for his "complete medical records"

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for his admissions in 1982 and 1995-1996; (2) the San Bernardino County Sheriff for his

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complete medical records that apparently were generated in and around 1997, as that is the date

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The court observed that "the requested injunction almost admits that the complaint lacks
merit," that the record suggested "this will be a 'difference of opinion' kind of case," and that a
mere difference of opinion does not establish deliberate indifference. Docket # 7, p. 4.
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of the abstract of judgment he attached, and (3) the Department of Mental Health for his

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"complete medical records" from his admission in August - October 1998.
A party may serve a subpoena commanding a nonparty “to produce documents,

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electronically stored information, or tangible things....” Fed. R. Civ. P. 45(a)(1)(C). The

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subpoena is subject to the relevance requirements set forth in Rule 26(b), i.e., the subpoena may

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command the production of documents which are “nonprivileged” and are “relevant to any

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party's claim or defense” or “reasonably calculated to lead to the discovery of admissible

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evidence.” Fed. R. Civ. P. 26(b)(1). The information sought need not be admissible at trial as

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long as it appears reasonably calculated to lead to the discovery of admissible evidence. Id. A

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United States District Court
For the Northern District of California

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“relevant matter” under Rule 26(b)(1) is any matter that “bears on, or that reasonably could lead

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to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund,

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Inc. v. Sanders, 437 U.S. 340, 351 (1978).

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Even when the discovery sought is within that broad range of permissible discovery, on

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motion or upon its own initiative, the court may alter the extent of use of the discovery methods

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if the court determines that "the burden or expense of the proposed discovery outweighs its likely

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benefit, considering the needs of the case, the amount in controversy, the parties' resources, the

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importance of the issues at stake in the litigation, and the importance of the proposed discovery

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in resolving the issues." Fed. R. Civ. P. 26(b)(2).

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The court can enforce a party's duty to "take reasonable steps to avoid imposing undue

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burden or expense on a person subject to the subpoena." Fed. R. Civ. P. 45(c)(1). The threat

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of monetary sanctions and the expense of conducting discovery usually keeps most litigants

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within the realm of reasonableness in discovery. But these financial disincentives don't work

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as well with pauper litigants. Monetary sanctions have little deterrent effect on a person with

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no money and the litigant's cost for serving a records-only subpoenas is virtually non-existent

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when the Marshal is employed to serve the subpoenas.

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prevent a pauper litigant from overreaching with document subpoenas, the court or Marshal

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actually incurs an expense if the Marshal must serve the subpoenas.

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In addition to there being little to

The subpoena power is a substantial delegation of authority to private parties, and those
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who invoke it have a grave responsibility to ensure it is not abused. Informing the person
served of his right to object is a good start, see Fed. R. Civ. P. 45(a)(1)(D), but it is no
substitute for the exercise of independent judgment about the subpoena's reasonableness.
Fighting a subpoena in court is not cheap, and many may be cowed into compliance with
even overbroad subpoenas, especially if they are not represented by counsel or have no
personal interest at stake.

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Theofel v. Farey Jones, 359 F.3d 1066, 1074-75 (9th Cir. 2004).
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Although the issuance of subpoenas is normally a clerical task at the court, the subpoenas
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United States District Court
For the Northern District of California

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here appear to abuse the subpoena power and compel the court to enforce the litigant's duty to
avoid imposing undue burden or expense on the intended recipients of the subpoenas. See Fed.
R. Civ. P. 45(c)(1). First, the subpoenas for medical records that are 15-30 years old appear to
be beyond the scope of permissible discovery in an action which concerns his mental health care
in 2011. Second, it is quite likely that the entities charge photocopying or access fees to provide
the records, yet it appears that Hicks has no means to pay any such charges. The court declines
to facilitate Hicks' effort to impose substantial burdens on third parties to assemble and copy
materials for him that he appears to have no means to pay for and may not even be able to access
or use. Hicks' request to have the subpoenas served is DENIED. (Docket # 43.) Hicks may file
a new request for issuance and service of subpoenas provided that he provides a particularized
explanation of why he needs the subpoenaed materials and shows that he has the means to pay
any costs associated with the subpoena. Before he files such a request, he must make inquiries
to the entities he wants to subpoena so he can learn the charges for the entities to provide the
documents he wants, and he must report that information to the court in any request for issuance
and service of subpoenas.
The briefing schedule for dispositive motions previously set remains in place. Plaintiff
is cautioned that he must send to both defense counsel a copy of each and every document he
files with the court; the court will not relay information to defense counsel for him, as he
requested in his notice of chance of address.
IT IS SO ORDERED.
Dated: April 18, 2013

_______________________
SUSAN ILLSTON
United States District Judge

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