Davis v. Paramo et al

Filing 118

ORDER Denying 111 Plaintiff's Motion to Compel Compliance With Subpoena as Moot. Signed by Magistrate Judge Jan M. Adler on 04/13/2018. (All non-registered users served via U.S. Mail Service)(ajs)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No.: 16CV689 WQH (JMA) DOYLE WAYNE DAVIS, CDCR #34318, Plaintiff, v. DANIEL PARAMO, Warden, et al., ORDER DENYING PLAINTIFF’S MOTION TO COMPEL COMPLIANCE WITH SUBPOENA AS MOOT [ECF No. 111] Defendants. On December 27, 2017, the Court issued an order granting in part Plaintiff’s motion for an order to issue subpoenas duces tecum. (ECF No. 95.) The Court directed the Clerk of Court to issue six (6) signed, but otherwise blank, subpoena duces tecum forms and to send six (6) U.S. Marshal Forms 285 in order to permit Plaintiff to subpoena medical records from the following medical providers: (1) Sharp Chula Vista Medical Center; (2) Alvarado Medical Center (“Alvarado”); (3) Tri-City Medical Center (“Tri-City”); (4) Oscar A. Matthews, M.D. at Tri-City Medical Center (“Dr. Matthews”); (5) Mohammad Pashmforoush, M.D. at Tri-City Medical Center and (6) Mohammad Pashmforoush, M.D. (collectively “Dr. Pashmforoush”). (Id.) The Court ordered that although Plaintiff, proceeding pro se and in forma pauperis, was entitled to have the U.S. Marshal effect 1 16CV689 WQH (JMA) 1 service of the subpoenas (see 28 U.S.C. § 1915(d)), Plaintiff was not entitled to a 2 waiver of any fees or expenses required by the subpoena recipients to comply 3 with the subpoenas duces tecum. (Id.) 4 On March 7, 2018 nunc pro tunc March 6, 2018, Plaintiff filed a motion to 5 compel compliance with subpoenas duces tecum, in which he advised that only 6 Sharp Chula Vista Medical Center had provided records in response to his 7 subpoenas. (ECF No. 111.) On March 12, 2018, the Court issued an order 8 setting a briefing schedule on Plaintiff’s motion. (ECF No. 112.) Nonparty Dr. 9 Pashmforoush filed a response to the motion. (ECF No. 113.) The other medical 10 providers (Alvarado, Tri-City, and Dr. Matthews) did not file responses. During a 11 Case Management Conference held on March 29, 2018, Plaintiff advised that he 12 had received records from Alvarado in response to his subpoena after filing his 13 motion to compel compliance. 14 15 The Court finds as follows: 1. 16 Mohammad Pashmforoush, M.D. Dr. Pashmforoush produced records in response to Plaintiff’s subpoena 17 subsequent to the filing of Plaintiff’s motion to compel. See Pashmforoush 18 Resp., ECF No. 113 at 3; Arnold Decl., ECF No. 113-1, ¶ 4. Accordingly, 19 Plaintiff’s motion to compel compliance as to Dr. Pashmforoush is DENIED as 20 moot. The Court declines to find Dr. Pashmforoush in contempt and declines to 21 issue any sanctions against him or his counsel. 22 2. 23 Tri-City Medical Center, and Oscar A. Matthews, M.D. In considering the instant motion, it came to the Court’s attention that 24 although its March 12, 2018 briefing order was intended to be provided to Tri- 25 City, Dr. Matthews, and Alvarado, due to clerical error, it was not. As such, none 26 of these providers received the order and thus none filed a response to the 27 motion. It also came to the Court’s attention, while confirming the addresses 28 upon which to send a revised briefing order, that the addresses provided by 2 16CV689 WQH (JMA) 1 Plaintiff on his Form 285 forms as to Tri-City and Dr. Matthews, were incorrect. 2 Plaintiff’s subpoena issued to Tri-City was served upon Vicki Ogilvie with the Risk 3 Management Department, at 4002 Vista Way, Suite 301 in Oceanside, California, 4 the address provided by Plaintiff, rather than upon the correct location, the 5 Medical Records Department located at 4002 Vista Way in Oceanside, 6 California. Plaintiff also listed 4002 Vista Way, Suite 301 as the address upon 7 which to serve Dr. Matthews; service was instead effectuated at 2095 W. Vista 8 Way in Vista, California. (ECF No. 106.) It is incumbent upon the party serving a 9 subpoena to complete the subpoena correctly before service. See Fed. R. Civ. 10 P. 45(a)(3); Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990) (providing that 11 the plaintiff must provide the necessary information to effectuate service when 12 relying on the Marshal for service). 13 Notwithstanding that Plaintiff did not provide the correct address upon 14 which to serve the custodian of records at Tri-City, the Court was informed by Tri- 15 City’s General Counsel, on behalf of its Medical Records Department, that 16 Plaintiff’s subpoena had been located and that medical records responsive to 17 Plaintiff’s subpoena will be provided forthwith. Tri-City also informed that records 18 relating to Plaintiff’s treatment with Dr. Matthews would be included in its 19 production. 20 Accordingly, Plaintiff’s motion to compel compliance as to Tri-City and Dr. 21 Matthews is DENIED as moot. 22 3. Alvarado Medical Center 23 Plaintiff has advised that Alvarado has produced records in response to the 24 subpoena. Accordingly, Plaintiff’s motion to compel compliance as to Alvarado is 25 DENIED as moot. 26 4. 27 28 Conclusion For the foregoing reasons, Plaintiff’s motion to compel compliance with subpoena is DENIED as moot. 3 16CV689 WQH (JMA) 1 Plaintiff is reminded that, as discussed during the Case Management 2 Conference held on March 29, 2018, copies of any documents he receives via 3 subpoena must be provided to Defendants. 4 5 IT IS SO ORDERED. Dated: April 13, 2018 6 7 8 9 10 11 12 13 14 15 cc: Jennifer Arnold Deputy Attorney General Office of the Attorney General P.O. Box 85266 San Diego, CA 92186-5266 jennifer.arnold@doj.ca.gov 16 17 18 19 20 21 22 23 24 25 26 27 28 4 16CV689 WQH (JMA)

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