Rhodes v. California Department of Corrections and Rehabilitation

Filing 50

ORDER RE: "Notice For Discovery" and Issuance of Subpoena re 47 49 . Plaintiff's request that the Acting Chief Medical Officer at Centinela State Prison be compelled to respond to written interrogatories is denied. Within 21 day s of this order Plaintiff shall complete the subpoena duces tecum form and return it to the United States Marshal for service. Signed by Magistrate Judge David H. Bartick on 8/8/2013. [Court Order dated 2/28/2013, ECF 3 and 'signed but otherwise blank' subpoena duces tecum form mailed with a copy of this order]. (All non-registered users served via U.S. Mail Service)(jao)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GRANT CHARLES RHODES,
CDCR # V-60392,

Civil No.
Plaintiff,

v.
CATHERINE LYNCH, SRN II,
Defendant.

12-cv-0075-JLS (DHB)

ORDER RE: “NOTICE FOR
DISCOVERY” AND ISSUANCE
OF SUBPOENA DUCES
SUBPOENA
[ECF Nos. 47, 49]

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On August 7, 2013, Plaintiff Grant Charles Rhodes, a state prisoner proceeding pro

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se, filed (1) a “Notice for Discovery” seeking to compel the Acting Chief Medical Officer

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at Centinela State Prison to produce answers to documents; and (2) a subpoena duces

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tecum in which he sets forth requests for production of various documents by the Acting

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Chief Medical Officer at Centinela State Prison. (ECF No. 49.)

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First, to the extent Plaintiff’s “Notice of Discovery” and subpoena seek to compel

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the Acting Chief Medical Officer to provide responses to written interrogatories,

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Plaintiff’s request is DENIED. Interrogatories may only be served on parties to the

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action. FED. R. CIV. P. 33(a)(1).

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Second, the Court notes that filing a subpoena is not the proper way to go about

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requesting documents from non-parties. Rule 45 of the Federal Rules of Civil Procedure

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requires service of a subpoena be made by delivering a copy of the subpoena to the

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named person, not to the Court. FED. R. CIV. P. 45(b)(1). However, the Court will
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12cv75-JLS (DHB)

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liberally construe Plaintiff’s pro se filing of a subpoena as a request for the Court to issue

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a subpoena duces tecum to gather documents from a non-party.

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In accordance with Rule 45(a)(3) of the Federal Rules of Civil Procedure, “[t]he

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

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party must complete it before service.” FED. R. CIV. P. 45(a)(3). The Court will direct

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the Clerk of Court to mail to Plaintiff, with this order, one signed but otherwise blank

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subpoena duces tecum form (AO-88B “Subpoena to Produce Documents, Information

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or Objects”) which should be completed by Plaintiff. Plaintiff’s in forma pauperis status

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allows him assistance in the service of a completed records subpoena by the United States

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Marshal. See 28 U.S.C. § 1915(d). Plaintiff is advised that he must comply with Rule

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45 of the Federal Rules of Civil Procedure, which governs the issuance of non-party

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subpoenas.

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Accordingly, IT IS HEREBY ORDERED:

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1.

Prison be compelled to respond to written interrogatories is DENIED.

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Plaintiff’s request that the Acting Chief Medical Officer at Centinela State

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The Clerk of Court is directed to mail to Plaintiff the following:

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a.

A copy of this order;

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b.

A copy of the Court’s February 28, 2012 order granting IFP status
(ECF No. 3); and

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c.

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88B “Subpoena to Produce Documents, Information or Objects”);

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One signed but otherwise blank subpoena duces tecum form (AO-

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Within 21 days of this order Plaintiff shall complete the subpoena duces
tecum form and return it to the United States Marshal for service.

IT IS SO ORDERED.
DATED: August 8, 2013

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DAVID H. BARTICK
United States Magistrate Judge

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12cv75-JLS (DHB)