Carbajal v. Warner et al
ORDER the Habeas Petition 313 is DENIED. The Subpoena Petition 315 is GRANTED. The Motion 317 is GRANTED. The Evidentiary Hearing set for April 16, 2012 at 1:30 p.m. is vacated and reset to June 26, 2012 at 1:30 p.m. in Courtroom C-204 befo re Magistrate Judge Kristen L. Mix. Plaintiff and Defendant Serra shall provide to each other and to the Court an updated list of exhibits each expects to submit and of witnesses each expects to call by filing such lists on the docket no later than June 19, 2012, by Magistrate Judge Kristen L. Mix on 4/12/12.(mjgsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-02862-REB-KLM
MYRL SERRA, in his individual capacity,
SHERRI PRICE, in her individual capacity,
CAROL WARNER, in her individual capacity,
DAVID ROMERO, in his individual capacity,
JOE QUINTANA, in his individual capacity,
BILL RAILEY, in his individual capacity,
CHRIS WELDON, in his individual capacity,
BEA WOLFE, in his individual capacity,
BENJAMIN SCHROEDER, in his individual capacity,
GILBERTO LUCIO, in his individual capacity,
JAMES DIXON, in his individual capacity,
ADAM BARRETT, in his individual capacity,
JOEL SMITH, in his individual capacity,
JESSE REMBERT, in his individual capacity,
JAY LOPEZ, in his individual capacity,
MICHAEL O’NEILL, in his individual capacity,
BOARD OF COUNTY COMMISSIONER OF DELTA COUNTY, a political subdivision of
the State of Colorado,
CITY AND COUNTY OF DENVER, a political subdivision of the State of Colorado,
DARIN DESEL, Police Officer for the Denver Police Department, in his individual
FRED MCKEE, Sheriff for the Delta Sheriff’s Department, in his individual capacity,
PERRY SPEELMAN, Police Officer for the Denver Police Department, in his individual
UNKNOWN REPRESENTATIVE, Representative of Patricia Kramer’s Estate, former
Deputy District Attorney for the Seventh Judicial District, in her individual capacity,
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Petition for Writ of Habeas Corpus
Ad Testificandum [Docket No. 313; Filed April 4, 2012] (the “Habeas Petition”); Plaintiff’s
Petition for Issuance of Subpoenas [Docket No. 315; Filed April 4, 2012] (the “Subpoena
Petition”); and Defendant Myrl Serra’s (“Serra”) Motion to Allow Witness to Appear by
Telephone at the April 16, 2012 Evidentiary Hearing [Docket No. 317; Filed April 5,
2012] (the “Motion”). On April 9, 2012, Defendant Serra filed an Objection to Plaintiff’s
Identification of Mario Serra as a Witness and Objection to Plaintiff’s Petition for Issuance
of Subpoenas (to Mario Serra) [#320] (the “Response”). The Court is fully advised in the
premises. For the reasons set forth below,
IT IS HEREBY ORDERED that the Habeas Petition [#313] is DENIED.
IT IS FURTHER ORDERED that the Subpoena Petition [#315] is GRANTED.
IT IS FURTHER ORDERED that the Motion [#317] is GRANTED.
Plaintiff Dean Carbajal (“Mr. Carbajal”) filed this case pro se in November of 2010.
His original seventy-two-page Complaint included his mother, Victoria Carbajal, as a
plaintiff, and named sixty-one defendants, including three Boards of County
Commissioners, four Colorado cities, three County Probation Departments, a county
sheriff’s department, three police departments, numerous police officers and other
individuals. Mr. Carbajal alleges a variety of legal wrongs stemming from his lengthy
involvement with law enforcement after a 1999 arrest in Delta County, Colorado. See
Compl. [#1] at 1-30. He is currently incarcerated at Centennial Correctional Facility.
Among the many disputes that arose almost immediately upon the filing of this action
were those relating to service of the summonses and Complaint on Defendants. Suffice
it to say that one remaining loose end from those disputes is whether Mr. Carbajal is
entitled to sanctions pursuant to Fed. R. Civ. P. 11 because Defendant Serra, the former
Delta County District Attorney who is presently incarcerated on unrelated charges, filed an
allegedly false affidavit claiming that his minor son, Mario, was improperly served with the
original summons and Complaint in this matter. By Order dated March 7, 2012, the Court
set an evidentiary hearing on this issue for April 16, 2012. [#297]
On April 4, 2012, a mere twelve days before the evidentiary hearing, Mr. Carbajal
filed his Subpoena Petition, asking the Court to authorize issuance of witness subpoenas
to the process server, Jess Jimenez, and now 10-year-old Mario Serra. See Response
[#320] at 1-2. As mentioned earlier, Mr. Carbajal is proceeding pro se, and likely does not
appreciate that service of subpoenas on witnesses cannot be effectively accomplished
within the time remaining prior to the hearing. This issue is discussed further below.
In the Habeas Petition [#313], Mr. Carbajal seeks a Court Order permitting him and
Defendant Serra, both of whom are presently incarcerated, to attend the hearing on the
Motion for Sanctions in person. See Order [#297] at 8. “Having plaintiff prisoners appear
by telephone is a necessary occurrence . . . if the magistrate judges of this Court hope to
have success in scheduling” hearings. See Spatziani v. Corrs. Corp. of Am., No. 07-cv01254-RPM-MEH, 2009 WL 586415, at *4 (D. Colo. Feb. 13, 2009), recommendation
rejected on other grounds by Spatziani v. Corrs. Corp. of Am., No. 07-cv-01254-RPM-MEH,
2009 WL 586386, at *1 (D. Colo. Mar. 6, 2009). The Court finds no compelling reason why
Mr. Carbajal and Defendant Serra should attend the hearing in person as opposed to
appearing by telephone, which each has already been granted leave to do. See Order
[#297] at 8; Minute Order [#306] at 2. Accordingly, the Habeas Petition [#313] is denied.
In the Motion [#317], Defendant Serra seeks leave to permit one of his witnesses,
Gwen Serra (“Mrs. Serra”), to appear by telephone. Defendant Serra asserts that Mrs.
Serra, who is his mother, was “at the residence at the time Plaintiff alleges personal service
was obtained” on Defendant Serra and will testify as to her observations on that day. See
Motion [#317] at 2. Defendant Serra further asserts that Mrs. Serra is 79 years old, is in
poor health, and lives approximately 300 miles away from the courthouse. See id. He
provides a letter from John Lambert, M.D., who states that Mrs. Serra is “chronically ill” and
“nearly homebound because of her medical conditions,” which “are disabling to her and
would make traveling to Denver both difficult and hazardous to her health.” Ex. to Motion
[#317-1]. In consideration of Mrs. Serra’s medical condition, the Motion [#317] is granted.
See, e.g., Harvey v. United States, No. CIVA04CV00188WYDCBS, 2005 WL 3164236, at
*15 (D. Colo. Nov. 28, 2005) (repeatedly allowing pro se litigant to appear at hearings and
other court proceedings by telephone due to his medical condition).
In the Subpoena Petition [#315], Mr. Carbajal requests that the Court enter an Order
permitting service of subpoenas pursuant to Fed. R. Civ. P. 45 on two witnesses he would
like to call at the hearing on his Motion for Sanctions: Mario Serra and Mr. Jimenez. Fed
R. Civ. P. 45 governs the Court’s issuance of subpoenas to compel witnesses to attend and
give testimony at hearings or trials. A subpoena may be issued by the Court, the Clerk of
the Court, or an attorney as an officer of the Court for witnesses and documents found
within its jurisdiction. See Fed. R. Civ. P. 45(a)(2), (3); U.S. Catholic Conference v.
Abortion Rights Mobilization, Inc., 487 U.S. 72 (1988). Thus, a pro se litigant who is not
a licensed attorney may not issue subpoenas on his own and must seek them from the
Court. See United States v. Meredith, 182 F.3d 934, at *1 (10th Cir. 1999) (unpublished).
Pursuant to Fed. R. Civ. P. 45(a)(3), the Clerk of Court “must issue a subpoena,
signed but otherwise in blank, to a party who requests it.” (Emphasis added). Although the
Court may quash a subpoena after service, the Court apparently has no discretion to deny
issuance of subpoenas on request. Thus, the Subpoena Petition [#315] is granted. The
subpoenas to be served on Mr. Jimenez and Mario Serra are for the limited purpose of
requiring their appearance at the Evidentiary Hearing on Plaintiff’s Motion for Sanctions and
to provide testimony with respect to the circumstances surrounding the attempted service
of summons and Complaint on Defendant Serra on March 10, 2011.1 Due to Plaintiff’s
status as an incarcerated individual,
IT IS FURTHER ORDERED that the United States Marshal shall serve Mr. Jimenez
and Mario Serra each with a Subpoena to Appear and Testify at a Hearing or Trial in a Civil
Action, along with a copy of this Order. All costs of service shall be advanced by the United
Mr. Carbajal is warned that, pursuant to Fed. R. Civ. P. 45(c)(1), “[a] party or attorney
responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing
undue burden or expense on a person subject to the subpoena. The issuing court must enforce
this duty and may impose an appropriate sanction . . . on a party or attorney who fails to comply.”
Defendant Serra has already indicated that he opposes the issuance of a subpoena to compel the
attendance of Mario Serra, in part on the basis that Mario Serra is a ten-year-old minor living in
western Colorado, approximately six hours by car from the courthouse in Denver; that his father,
Defendant Serra, is presently incarcerated and has no means of transporting Mario to Denver; and
that the information sought from Mario is available from other sources. See Response [#320]. The
Court thus anticipates that Defendant Serra may file a motion to quash a subpoena served on Mario
Serra. Any motion to quash the subpoenas served in connection with the Evidentiary Hearing must
be promptly filed to allow consideration prior to the hearing. Untimely filing of such motions to
quash will result in their denial.
As explained above, Mr. Carbajal waited until April 4, 2012 to file his Subpoena
Petition, despite being notified in an Order dated March 7, 2012 that a hearing was set for
April 16, 2012. Fed. R. Civ. P. 45(c)(3)(A)(i) requires that a subpoena must be served
within a “reasonable” time before the hearing. Given the current date, there is insufficient
time to ensure proper service of the subpoenas on Mr. Jimenez and Mario Serra prior to
the Evidentiary Hearing. Accordingly,
IT IS FURTHER ORDERED, sua sponte, that the Evidentiary Hearing set for April
16, 2012 at 1:30 p.m. is vacated and reset to June 26, 2012 at 1:30 p.m. in Courtroom
C-204 of the Byron G. Rogers United States Courthouse, 1929 Stout Street, Denver,
Colorado. Plaintiff and his case manager and Defendant Serra and his case manager shall
contact the court at (303) 335-2770 on the above date and time in order to participate.
IT IS FURTHER ORDERED that Plaintiff and Defendant Serra shall provide to each
other and to the Court an updated list of exhibits each expects to submit and of witnesses
each expects to call by filing such lists on the docket no later than June 19, 2012.
IT IS FURTHER ORDERED that the Clerk of the Court shall electronically mail a
copy of this Order to the legal assistant for the Department of Corrections at the following
address: email@example.com and shall mail a courtesy copy of this Order
to the case manager for Plaintiff at his facility.
Dated: April 12, 2012
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