Williams v. Ortega et al

Filing 59

ORDER Re: Plaintiff's Letter and Request for Subpoena Documents (ECF No. 57 ). Signed by Magistrate Judge Mitchell D. Dembin on 8/6/2020. (All non-registered users served via U.S. Mail Service)(jdt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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LANCE WILLIAMS,

Case No.: 18-cv-00547-LAB-MDD
Plaintiff,

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v.

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ORDER RE: PLAINTIFF’S
LETTER AND REQUEST FOR
SUBPOENA DOCUMENTS

O. ORTEGA, et al.,
Defendants.

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[ECF No. 57]

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Plaintiff Lance Williams is a state prisoner proceeding pro se and in

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forma pauperis, with a civil rights complaint pursuant to 42 U.S.C. § 1983.

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(ECF No. 39). On July 17, 2020, Plaintiff filed a letter requesting the Court

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to stamp and certify a subpoena duces tecum to be served by the United

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States Marshal on a non-party. (ECF No. 57). Plaintiff’s proposed subpoena,

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directed to the non-party Richard J. Donovan Litigation Department for the

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attention of “II Connie,” seeks information regarding to all “D.D.P. employees

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working under Dr. Zudiker” between the dates of January 1, 2018 and

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January 1, 2019.

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Service of a subpoena duces tecum is governed by Federal Rule of Civil

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Procedure 45. A pro se plaintiff who is not admitted to practice law is not

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authorized to sign and issue a subpoena. See Cramer v. Target Corp., 2010

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U.S. Dist. LEXIS 53941, at *1 (E.D. Cal. 2010). Accordingly, a pro se in
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forma pauperis (“IFP”) plaintiff "is generally entitled to obtain service of a

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subpoena duces tecum by the United States Marshal. 28 U.S.C. § 1915(d);

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See Heilman v. Lyons, 2010 U.S. Dist. LEXIS 136449, at *1 (E.D. Cal. 2010)

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(granting in part pro se IFP prisoner plaintiff's motion to authorize the U.S.

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Marshal to serve a subpoena on the CDCR).

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However, "the expenditure of public funds [on behalf of an indigent

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litigant] is proper only when authorized by Congress . . . ." Heilman v.

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Thumser, 2014 U.S. Dist. LEXIS 2208, at *2 (E.D. Cal. 2014) (citing Tedder v.

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Odel, 890 F.2d 210, 211-12 (9th Cir. 1989)). Consequently, the in forma

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pauperis statute does not authorize nor entitle the expenditure or waiver of

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public funds for service of subpoenas. Davis v. Paramo, 2017 U.S. Dist.

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LEXIS 21255, at *8 (S.D. Cal. 2017); See Tedder, 890 F.2d 210 at 211-212;

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See generally 28 U.S.C. § 1915(d).

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Subject to certain considerations, the Court may authorize the issuance

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of a subpoena on behalf of a pro se IFP litigant. The Court generally requires

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that Plaintiff’s motion “be supported by: (1) clear identification of the

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documents sought and from whom, and (2) a showing that the records are

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obtainable only through the identified third party." Lyons, 2010 U.S. Dist.

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LEXIS 136449, *3. Further considerations under the Federal Rules of Civil

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Procedure include the relevance of the information sought and the burden

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and expense on the non-party to provide the information. Smith v.

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Rodriguez, 2016 U.S. Dist. LEXIS 43991, at *11 (E.D. Cal. 2016); See Fed. R.

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Civ. P. 26, 45. Non-parties are “entitled to have the benefit of the Court’s

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vigilance” in considering these factors. Alexander v. California Dept. of

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Corrections, 2010 U.S. Dist. LEXIS 113197, at *9 (E.D. Cal. 2010) (citing

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Badman v. Stark, 139 F.R.D. 601, 605 (M.D. Pa. 1991)).

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Here, Plaintiff has not shown that the requested documents are not
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available to him and not obtainable from Defendants through discovery.

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Thus, plaintiff has not shown that he took reasonable steps to obtain the

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requested documents prior to requesting service of the subpoena from a non-

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party. Consequently, Plaintiff’s motion does not fall within the limited

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circumstances under which the Court might order the U.S. Marshal to serve

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a subpoena duces tecum. Furthermore, any documents within the

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possession, custody or control of Defendants may be obtained by Plaintiff

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through other discovery means such as a request for production of

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documents.

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IT IS SO ORDERED.

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/1, t ~ '0- ~ L

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Hon. Mitchell D. Dembin
United States Magistrate Judge

Dated: August 6, 2020

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