Heilman v. Cook et al

Filing 126

ORDER Denying 110 Plaintiff's Motion to Compel Identity of Staff on Subpoenaed Documents. Signed by Magistrate Judge Mitchell D. Dembin on 11/15/16. (cap)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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Plaintiff,

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Case No.: 14cv1412-JLS-MDD

THOMAS JOHN HEILMAN,

ORDER ON PLAINTIFF’S
MOTION TO COMPEL
IDENTITY OF STAFF ON
SUBPOENAED DOCUMENTS

v.
J. COOK, et al.,
Defendants.

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[ECF No. 110]

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On September 16, 2016, Plaintiff filed a motion to “compel the

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‘CDCR’s’ Warden representative at RJ Donovan prison D. Paramo, and

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represented by Lisa L. Freund, Dep. Atty. Gen to positively identify the

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illegible identities and signatures of the Nursing Supervisors” assigned

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to the Correctional Treatment Center (C.T.C.) at R. J. Donovan

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Correctional Facility on May 9, 2013 and May 10, 2013. (ECF No. 110).

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In his motion, Plaintiff explains that he received a C.T.C. medical staff

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on-duty log book for the relevant dates, but that many of the signatures

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are illegible and some signatures that should be listed are missing. (Id.

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at 3). Plaintiff argues that the identities of the nursing supervisors who
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14cv1412-JLS-MDD

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were on duty during the alleged deliberate indifference are material,

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because the supervisors are witnesses to whether the nurses reported

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Plaintiff’s medical complaints and his claim that his injuries were

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caused by correctional staff. (Id.). Plaintiff acknowledges in his motion

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that the parties he is seeking to compel to act—the CDCR (California

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Department of Corrections and Rehabilitation) and Warden Paramo—

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are not parties to this action. But Plaintiff argues—without providing

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citation to an order on the record—that this Court previously issued an

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order providing similar relief requiring identification by “Defendants

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and/or Non-party D. Paramo” of Defendant Nainggolan from a log book

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in Heilman v. Silva, Case No. 13cv2984-JLS-MDD. (Id. at 4).

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On October 12, 2016, Defendants filed an opposition. (ECF No.

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116). Defendants explain that Plaintiff’s motion fails to mention that

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he already sought this same information in his September 2, 2016,

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motion to compel (ECF No. 101). In ruling on Plaintiff’s prior motion,

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this Court ordered Warden Paramo to produce any “existing document

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that legibly identifies the complete names and positions of the on-duty

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Nursing Supervisors at the C.T.C. on May 9, 2013, to May 13, 2013, if

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any such document already exists.” (Id. citing ECF No. 104 (Order)).

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Defendants explain that they complied with that Order and produced

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all responsive extant documents. (Id.). In her meet and confer letter

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with Plaintiff, Defendants’ counsel contends that Rule 45 only

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commands production of existing documents; Rule 45 does not require

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the responding party to create a document (e.g., listing Nursing

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Supervisors’ names) that does not already exist. (ECF No. 110 at 11).

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Defendants urge that this repetitive motion be denied as moot.

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As this Court previously explained in the September 7, 2016,

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Order, Rule 45 requires a nonparty responding to a valid subpoena to

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produce documents “as they are kept in the ordinary course of

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business;” it does not require them to create new documents or lists.

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FED. R. CIV. P. 45. Warden Paramo and the CDCR are not parties to

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this action, and have explained that the information Plaintiff seeks to

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compel is not in any existing documents. The Court cannot compel

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these nonparties to produce documents that do not exist nor to create a

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new document containing the information Plaintiff seeks.

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Plaintiff’s argument that this Court ordered Warden Paramo to

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provide the same relief in the other action (Heilman v. Silva, Case No.

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13cv2984) is unavailing. The Court reviewed that docket and found no

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such order. Even if the Court had so ordered, the result in that case

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would not dictate the same result here. Warden Paramo is a named

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defendant in that case but is a nonparty here. The bounds of Rule 45

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limit this Court’s power to compel information from Warden Paramo in

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this case due to his status as a nonparty.

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Plaintiff’s motion to compel is DENIED.

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IT IS SO ORDERED.

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Dated: November 15, 2016

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