Moody v. Unknown

Filing 73

ORDER denying plaintiff's 72 motion to serve a subpoena; Defendants Finander and Ball, as employees of CDCR, are to respond to Plaintiffs request for a subpoena on or before October 15, 2010; Signed by Magistrate Judge Bernard G. Skomal on 10/1/10. (All non-registered users served via U.S. Mail Service)(kaj)

-BGS Moody v. Finander

Doc. 73

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff has improperly put his signature on the line for the "issuing officer's signature and title." Under Rule 45(c)(3), "the clerk must issue a subpoena, signed but otherwise in blank, to a party who requests it." "That party must complete it before service." Id. "An attorney may also issue and sign a subpoena as an officer of: (A) a court in which the attorney is authorized to practice; or (B) a court for a district where a deposition is to be taken or production is to be made, if the attorney is authorized to practice in the court where the action is pending." Id. Plaintiff is neither the clerk of court nor an attorney. Therefore, he may not sign a subpoena as an issuing officer. -109cv892-LAB
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
FLOYD STEVESON MOODY, vs. Plaintiff, CASE NO. 09-CV-0892-LAB (BGS) ORDER: (1) DENYING PLAINTIFF'S MOTION TO SERVE A SUBPOENA & (2) DIRECTING DEFENDANTS TO RESPOND

PAULETTE FINANDER, Chief Medical Officer, et al., Defendants.

On September 7, 2010, Plaintiff Floyd Steveson Moody, an incarcerated individual proceeding pro se in this action, filed a motion for request to serve a subpoena pursuant to Fed. R. Civ. Pro. 45. (Doc. No. 72.) Plaintiff seeks to serve the subpoena on a non-party, the custodian of medical records at the Pleasant Valley State Prison, to obtain his medical records. (Id.) Plaintiff has attached to his motion a subpoena form issued from the Southern District of California.1 After a review of Plaintiff's motion, it appears that Plaintiff seeks the issuance of a

Dockets.Justia.com

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subpoena out of the wrong district. Pursuant to Federal Rule of Civil Procedure 45(a)(2)(C), "a subpoena must issue . . . for production or inspection, if separate from a subpoena commanding a person's attendance, from the court for the district where the production or inspection is to be made." Plaintiff identifies the place of inspection on the subpoena form as Pleasant Valley State Prison. (Doc. No. 72 at 7.) Pleasant Valley State Prison is located in Coalinga, California. (Id. at 2.) Coalinga is located in Fresno County, California, which is part of the Eastern District of California. 28 U.S.C. §84(b). Therefore, if Plaintiff wishes to serve a subpoena upon the custodian of medical records at Pleasant Valley State Prison, he must request a subpoena from the Eastern District of California. Accordingly, the Court denies Plaintiff's request for a subpoena pursuant to Rule 45 as it appears this Court is not the proper issuing court. Although Plaintiff's motion seeks a subpoena to obtain the medical records from a nonparty, Plaintiff indicates that he has requested these documents from Defendants, who have objected to Plaintiff's request by stating that Plaintiff can obtain these records "through the institution."2 (Doc. No. 72 at 3.) Plaintiff is seeking records that are likely to be in the possession, custody and/or control of Defendants, as he seeks his Pleasant Valley State Prison unit health record3 (Volumes I and II) in this §1983 action based upon inadequate medical care. As the Eastern District of California has stated, "it is highly unlikely that Defendants do not have possession, custody, or control of these documents, assuming that the documents exist somewhere within the California Department of Corrections and Rehabilitation."4 Carter v. Dawson, 2010 WL 1796798 *2 (E.D. Cal. May 4, 2010). "A party may be ordered to produce a document in the possession of a non-party entity if that party has a legal right to obtain the
15 C.C.R. §3370(c) provides that an inmate "may review their own case records file and unit health records." Plaintiff states that he has attempted to review his health records by requesting to review them through the prison procedures, but was told that the "records could not be found." "Unit health records means a patient's health record that includes all records of care and treatment rendered to an inmate-patient." 15 C.C.R. §3370(a). Plaintiff's health record should be at Pleasant Valley State Prison, as Title 15 of the California Code of Regulations, section 3355(b) requires that, "[t]he health record of each new arrival shall be reviewed to determine the need for previously prescribed medications or continuing treatment for unusual or chronic health problems." -209cv892-LAB
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document or has control over the entity who is in possession of the document." Soto v. City of Concord, 162 F.R.D. 603, 619 (N.D.Cal.1995) (citing Buckley v. Vidal, 50 F.R.D. 271, 274 (S.D.N.Y.1970)). Although the California Department of Corrections and Rehabilitation ("CDCR") is not a party to this action, Defendants Paulette Finander and K. Ball, who are employed by CDCR as Chief Medical Officers, "can generally obtain documents such as the ones at issue here by simply requesting them from CDCR." Carter, 2010 WL 1796798 *2; see also Johnson v. Vord, 2008 WL 3892106 *2 (E.D. Cal. Aug. 21, 2008) (requesting defense counsel contact the prison litigation office to facilitate a review of Plaintiff's medical file for him). As such, Defendants Finander and Ball, as employees of CDCR, are to respond to Plaintiff's request for a subpoena on or before October 15, 2010. Defendants shall set forth facts that persuasively demonstrate why they do not have access to these documents. If Defendants do have access, Defendants shall address any reasons why they object to supplying Plaintiff with the documents in response to his request or why they object to facilitating a review of the records for Plaintiff, as resolving this matter informally would avoid unnecessary expenditure of resources. IT IS SO ORDERED. DATED: October 1, 2010 BERNARD G. SKOMAL United States Magistrate Judge

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09cv892-LAB