Carbajal v. St. Anthony Central Hospital et al

Filing 226

ORDER granting in part 201 Motion for Issuance of subpoenas, as outlined in the attached order, by Magistrate Judge Kristen L. Mix on 7/30/2014. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(trlee, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02257-REB-KLM
DEAN CARBAJAL,
Plaintiff,
v.
ST. ANTHONY CENTRAL HOSPITAL, a corporation,
CENTURA HEALTH, a corporation,
STEPHAN M. SWAN, Physician Assistant, in his official and individual capacities,
GREGORY J. ENGLUND, Registered Nurse, in his official and individual capacities,
MARCI L. HANSUE, Registered Nurse, in her official and individual capacities,
MICHAEL O’NEILL, Police Officer for the Denver Police Department, in his official and
individual capacities,
JAY LOPEZ, Police Officer for the Denver Police Department, in his official and individual
capacities,
LARRY BLACK, Police Officer for the Denver Police Department, in his official and
individual capacities, and
APEX, a corporation,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion for Order Directing the Clerk
of Court to Stamp the Attached Subpoena Duces Tecum and Directing the United
States Marshal to Serve the Subpoena Duces Tecum [#201] (the “Motion”). Defendants
Michael O’Neill, Jay Lopez, and Larry Black (the “Denver Defendants”) filed a Response
[#213] in opposition to the Motion, and Plaintiff filed a Reply [#217]. Thus, the Motion is
ripe for resolution.
In the Motion, Plaintiff requests that the Court enter an Order permitting service of
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twenty-five subpoenas on third parties pursuant to Fed. R. Civ. P. 45 for the purpose of
obtaining numerous documents. Fed R. Civ. P. 45 governs the Court’s issuance of
subpoenas to compel production or inspection of documents from non-parties. A subpoena
may be issued by the Court, the Clerk of 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. See
United States v. Meredith, 182 F.3d 934, at *1 (10th Cir. 1999). Here, Plaintiff has already
obtained and partially completed subpoena forms and merely requests that the Clerk of
Court sign the forms and that the United States Marshal then serve the completed
subpoenas on the named recipients.
In the Response, the Denver Defendants argue on a variety of grounds that the
Court should deny Plaintiff’s request and quash the subpoenas.

However, these

subpoenas have not been served and the Court’s ability to “quash” subpoenas before
service is dubious. See The N.Y. Times Co. v. Gonzales, 459 F.3d 160, 167 (2d Cir. 2006)
(stating that under the Federal Rules of Criminal Procedure that “[a] motion to quash is not
available if the subpoena has not been issued”) (citing 2 Charles Alan Wright et al., Federal
Practice and Procedure § 275 (4th ed. 2014)). Further, the law in this district is that a party
has no standing to seek to quash a subpoena served on a third party, except as to claims
of privilege or on a showing that a privacy issue is implicated. I’mnaedaft, Ltd. v. The
Intelligent Office Sys., No. 08-cv-01804-LTB-KLM, 2009 WL 1537975, at *4 (D. Colo. May
29, 2009); Mona Vie, Inc. v. Amway Corp., No. 08-cv-02464-WDM-KLM, 2009 WL 524938,
at *2 (D. Colo. Mar. 2, 2009); Windsor v. Martindale, 175 F.R.D. 665, 668 (D. Colo. 1997);
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Broadcort Capital Corp. v. Flagler, 149 F.R.D. 626, 628 (D. Colo. 1993). The Denver
Defendants do not argue that either privilege or their own privacy are implicated here.
Regardless, the Court has found no proscription against determining whether a
subpoena should be served at all. The Court has the “inherent power to protect anyone
from oppressive use of process.” Windsor, 175 F.R.D. at 770 (citing Gregg v. Clerk of the
U.S. Dist. Court, 160 F.R.D. 653, 654 (N.D. Fla. 1995)). A party seeking service of process
by the Court must demonstrate that “he has a clear, non-discretionary right to the issuance
of subpoenas.” Gregg, 160 F.R.D. at 654. As stated in Windsor, 175 F.R.D. at 672,
The Court is aware of the burden on . . . [third parties] when subpoenas
duces tecum are served upon them. [As discussed below, the] Court [finds]
that many of the requests for documents are inappropriate. The Court notes
that . . . requests for service by the United States Marshals Service will
require a determination by the Court as to relevance of requested materials
and the ability of the plaintiff to pay a witness fee and mileage, if appropriate
under the circumstances. Absent such a showing, the United States
Marshals Service will not be directed to serve such documents.
Thus, “[t]he initial question is what information, if any, being requested [by Plaintiff from the
third parties] has an impact on the allegations in the case.” Windsor, 175 F.R.D. at 770.
In other words, the Court first looks at whether the information sought by Plaintiff is relevant
to his claims.
Pursuant to Fed. R. Civ. P. 26(b)(1), any discovery sought must be relevant.
Relevancy is broadly construed, and a request for discovery should be considered if there
is “any possibility” that the information sought may be relevant to the claim or defense of
any party. See, e.g., Sheldon v. Vermonty, 204 F.R.D. 679, 689-90 (D. Kan. 2001).
“When the discovery sought appears relevant, the party resisting the discovery has the
burden to establish the lack of relevancy by demonstrating that the requested discovery (1)
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does not come within the scope of relevance as defined under Fed. R. Civ. P. 26(b)(1), or
(2) is of such marginal relevance that the potential harm occasioned by discovery would
outweigh the ordinary presumption in favor of broad disclosure.” Simpson v. Univ. of Colo.,
220 F.R.D. 354, 359 (D. Colo. 2004) (citations omitted); see also Cont'l Ill. Nat'l Bank &
Trust Co. of Chicago v. Caton, 136 F.R.D. 682, 685 (D. Kan. 1991) (stating that a party
resisting discovery based on relevancy grounds bears the burden of explaining how “each
discovery request is irrelevant, not reasonably calculated to lead to the discovery of
admissible evidence, or burdensome”). Further, the objecting party cannot “sustain this
burden with boilerplate claims that the requested discovery is oppressive, burdensome or
harassing.” Id. (citation omitted). However, when a request for discovery is overly broad
on its face or when relevancy is not readily apparent, the party seeking the discovery has
the burden to show the relevancy of the request. See Paradigm Alliance, Inc. v. Celeritas
Tech., LLC, No. 07-1121-MLB, 2008 WL 678700, at *2 (D. Kan. Mar. 7, 2008) (citation
omitted).
In the Amended Complaint [#60], Plaintiff in short “alleges that, after being beaten
by Denver police officers, he was transported to St. Anthony Central Hospital for treatment
and forcibly catheterized by police officers and hospital personnel. . . . Plaintiff claims
further that defendants violated his First Amendment rights by refusing to let him speak to
‘internal affairs’ and/or conditioning their agreement to let him speak to ‘internal affairs’ on
his submission to the catheterization.” Order [#133] at 3; see also Recommendation [#114]
at 5-8.

Based on these allegations, Plaintiff’s remaining claims are as follows: (1)

unreasonable search and seizure in violation of the Fourth Amendment (Claim One); (2)
unreasonable and excessive force in violation of the Fourth Amendment (Claim Two); (3)
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negligence (Claim Three); (4) retaliation for exercise of First Amendment rights (Claim
Four); (5) invasion of the right of privacy under the Fourth Amendment (Claim Five); (6)
extreme and outrageous conduct (Claim Six); and (7) conspiracy to violate civil rights under
the First and Fourth Amendments (Claim Seven).1 Order [#133] at 19 n.9. The Court has
examined each subpoena provided by Plaintiff, see Motion [#201] at 4-54, as well as the
argument presented by Plaintiff regarding the relevance of the information he seeks in each
subpoena as such information relates to these remaining causes of action. See Reply
[#217]; Decl. of Pl. [#218, #219].
One subpoena is directed to Killmer, Lane, and Newman, LLP, see Motion [#201]
at 49, and another to Rathod Mohamedbhai LLC, see id. at 51, both of which are local
Denver law firms “that often represent plaintiffs in municipal cases.” Response [#213] at
6. In short, these two subpoenas seek documents relating to misconduct by Denver law
enforcement personnel that could be used to support a Monell claim against the City and
County of Denver. Plaintiff argues that these documents are “extremely relevant to this
action, in that, each of these firms have obtained numerous internal affairs files and other
evidence, including, but not limited to, statements from citizens, prior inconsistent
statements, and habit evidence against the Police Defendants in this action, that will be
used to support a pervasive bias and prejudice held by the Police Defendants against
citizens that file complaints against the Denver Police Department or seek to expose

1

The alleged beating by Denver police officers does not form the basis of any claim in the
present lawsuit.

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misconduct.” Decl. of Pl. [#218] at 10.2 However, the City and County of Denver is no
longer a party to this action, and Plaintiff has no Monell claim remaining in this lawsuit.
Order [#133] at 8, 17. Further, “[w]hen, as is apparent here, a plaintiff brings an initial
action without any factual basis evincing specific misconduct by the defendants and then
bases extensive discovery requests upon conclusory allegations in the hope of finding the
necessary evidence of misconduct, that plaintiff abuses the judicial process.” Munoz v. St.
Mary-Corwin Hosp., 221 F.3d 1160, 1169 (10th Cir. 2000). The Court therefore finds that
these two subpoenas should not be served by the United States Marshals’ Service.
According to the Denver Defendants, three more subpoenas involve Plaintiff’s exgirlfriend. Response [#213] at 7. One subpoena is directed to HSBC Auto Finance and
seeks the complete case file regarding a particular 2003 Acura RSX. See Motion [#201]
at 45. A second subpoena is directed to Royal Automotive LLC and seeks the complete
case file regarding a particular 2008 Jeep Grand Cherokee. See id. at 53. A third
subpoena is directed to Gilbraltar Property Management. See id. at 11. Unlike the first
two, this third subpoena specifically references Plaintiff’s ex-girlfriend and seeks her
eviction notice and any reports concerning housing fraud or criminal activity at her
apartment complex while she was a resident there. Id. The subpoena also seeks access
to the residence for inspection. Id. Regarding the vehicles, Plaintiff argues that the
agencies “each have documents needed to isolate damages from separate action[s], to

2

Parties to civil litigation often enter into agreements to limit the use of evidence obtained
in the lawsuit to the immediate litigation only. Pursuant to such agreements, courts often enter
Protective Orders which bar the parties from using the evidence for any purpose other than the
immediate lawsuit. It is likely that the information sought by Plaintiff from the law firms would be
subject to Protective Orders. Plaintiff offers no suggestion or argument about overcoming any valid
Protective Orders which might exist.

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ensure that [there] is no confusion or spillover effect concerning damages from separate
actions.” Decl. of Pl. [#219] at 2. Regarding the residence, Plaintiff argues that these
documents are needed “to properly establish [his] privilege to this residence” because
Defendants “are seeking to manufacture a defense using this alleged felonious conduct as
a basis for their extraction of urine without consent, and use of force.” However, Plaintiff
has failed to establish the relevance of any of this requested discovery to the alleged acts
of violence, negligence, and retaliation that occurred at St. Anthony’s hospital on August
28, 2010. The Court is mystified as to how the vehicles, alleged facts regarding Plaintiff’s
former girlfriend’s eviction or criminal activity at her former residence could be even
remotely related to the events at issue here. Further, discovery limitations are appropriate
“when it can be shown that the [discovery] is being conducted in bad faith or in such a
manner as to annoy, embarrass or oppress the person subject to the inquiry.” Hickman v.
Taylor, 329 U.S. 495, 507-08 (1947). In the absence of a connection to the litigation, the
Court finds that these subpoenas seek information to annoy and/or embarrass Plaintiff’s
former girlfriend, and hence are improper. The Court therefore finds that these three
subpoenas should not be served by the United States Marshals’ Service.
Another subpoena is directed to North Suburban Medical Center, Motion [#201] at
47. As he did with HSBC Auto Finance and with Royal Automotive LLC, Plaintiff argues
that North Suburban Medical Center has “documents needed to isolate damages from
separate action[s], to ensure that [there] is no confusion or spill over effect concerning
damages from separate actions.” Decl. of Pl. [#219] at 2. Plaintiff also states that this
entity “has medical files that [he] was not previously aware of that may need to be
disclose[d] to the Defendants.” Id. However, Plaintiff has neither explained the meaning
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of nor established the relevance of “damages from separate actions.” Further, the only
other reason provided by Plaintiff is that certain medical files may need to be provided to
Defendants. To the extent such is the case and that such medical files are not in Plaintiff’s
possession, Defendants may seek to obtain this information through their own discovery.
See Carbajal v. Warner, No. 10-cv-02862-REB-KLM, 2013 WL 1129429, at *8 (D. Colo.
Mar. 18, 2013) (stating that “Plaintiff is [only] required to produce any documents in his
‘possession, custody, or control.’” (quoting Fed. R. Civ. P. 34(a)(1))). Moreover, if Plaintiff
is concerned about providing information about his past medical history in this litigation, he
may provide information about his treatment at North Suburban Medical Center from
memory. If he cannot remember his treatment there, he may say so. Defendants may
then take additional discovery on the subject if necessary. The Court therefore finds that
this subpoena should not be served by the United States Marshals’ Service.
Two more subpoenas request medical information from the University of Colorado
Health and Science Urology Department, see Motion [#201] at 5, and the Denver Health
Medical Center, see id. at 23. Plaintiff states that the former “has medical reports and
research that will [be] needed to establish the legitimacy of catheterization as a medical
procedure to obtain information concerning a person[’]s toxicity or other [ailments].” Decl.
of Pl. [#218] at 13. He also states that “the discovery of other peer reviews and reports will
disclose any other reports of medical catheterization of combative patients, which, is
needed to support that this conduct was seriously egregious and deviates from [society’s]
norms.” Id. He makes a similar statement regarding his requests to Denver Health Medical
Center, except that he adds that he believes that some of the medical defendants may
have been employed there and that records of complaints of misconduct may provide
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impeachment evidence. Id. at 13; [#219] at 2. However, there are no allegations in the
Amended Complaint [#60] regarding these entities, and there is no suggestion here that
either has any information relating to the facts of Plaintiff’s present case regarding the
events of August 28, 2010 at St. Anthony’s Hospital. See Munoz, 221 F.3d at 1169
(proscribing fishing expeditions seeking unidentified misconduct). To the extent that
Plaintiff is interested in obtaining information and/or opinions to present to the trier of fact
about (1) the effects of catheterization on “combative” patients and/or (2) whether
catheterization can be used to establish a person’s “toxicity,” physical condition or the
presence of illness, the proper procedure for obtaining such information is not to subpoena
confidential medical records and other data from non-parties. The Federal Rules of Civil
Procedure and the Federal Rules of Evidence permit cross-examination of physicians
whose testimony is offered by Defendants in this regard, and further permit Plaintiff to
obtain and offer his own expert’s testimony in this regard. See, e.g., Fed. R. Civ. P.
26(a)(2); Fed. R. Evid. 702. The Court therefore finds that these two subpoenas should not
be served by the United States Marshals’ Service.
Plaintiff also requests documents relating to his own underlying criminal charges and
convictions from the following entities: Denver Public Defender’s Office, see Motion [#201]
at 13, Denver District Attorney’s Office, id. at 15, Colorado Bureau of Investigation, id. at
17, Sprint Telecommunications, id. at 21, James Albee (“Albee”) of the Metro Intelligence
Agency, id. at 25, Denver Police Department, id. at 27, Denver City Attorney’s Office, id.
at 29, the law firm of Faegre Baker Daniels LLP id. at 31, Jefferson County Probation Office
for the First Judicial District, id. at 33, Jefferson County District Court, id. at 35, Jefferson
County Public Defender’s Office, id. at 37, Arvada Police Department, id. at 39, Jefferson
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County District Attorney’s Office, id. at 41, and Denver District Court, id. at 43. From Sprint
Telecommunications, Plaintiff seeks in part any records of pin traces requested by the
Denver Police Department in its attempt to locate and arrest Plaintiff. Id. at 21. According
to the Denver Defendants, Mr. Albee of the Metro Intelligence Agency “was Plaintiff’s courtappointed investigator in over 36 of Plaintiff’s criminal cases.” Response [#213] at 5.
Plaintiff seeks Mr. Albee’s files in connection with some of these cases. Motion [#201] at
25. From Faegre Baker Daniels, LLP, Plaintiff seeks a deposition transcript and other
documents relating to one of his underlying criminal cases. Id. at 31. From the remaining
entities, Plaintiff generally seeks all legal and investigatory files relating to the criminal
charges brought against him over the course of many years in several judicial districts. Id.
at 13, 15, 17, 27, 29, 33, 35, 37, 39, 41, 43. Plaintiff states that the information is for the
purpose of establishing unconstitutional conduct by various persons who are not part of this
lawsuit and regarding events that are not related to this lawsuit. See, e.g., Decl. of Pl.
[#218] at 8. He also states that he expects opposing counsel will attempt to impeach him
at trial using his past criminal record, and he asserts that obtaining these records will help
him combat such impeachment. See, e.g., id. at 1. However, Plaintiff does not connect
his requests from any of these entities to any of the causes of action remaining in this
lawsuit. “Although pretrial discovery is broad, it is not limitless, and discovery should not
be allowed where the resulting benefit would be negligible.” Garcia v. Berkshire Life Ins.
Co. of Am., No. 04-cv-01619-LTB-BNB, 2007 WL 3407376, at *3 (D. Colo. Nov. 13, 2007)
(internal quotation marks omitted).

The Court therefore finds that these fourteen

subpoenas should not be served by the United States Marshals’ Service.
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Plaintiff also uses one subpoena to request records jointly from the Denver
Detention Center and from the Denver Sheriff’s Department. See Motion [#201] at 19.
Plaintiff seeks his “complete administrative, detainee, intake screening/booking, and
medical and mental health file from 2006 to 2012, including all notes, pleadings, emails,
and correspondence with law enforcement and the District Attorney’s office.” Id. To the
extent that Plaintiff seeks his medical records from both before and after the incident, they
may be relevant to this action. See Carbajal, 2013 WL 1129429, at *4 (“Plaintiff has put
his physical health at issue, making his physical health records relevant. . . . Because
Plaintiff may have had preexisting conditions and/or been treated for his alleged injuries
beyond his initial treatments at St. Anthony’s Central Hospital on August 28, 2010 . . . , the
Court finds that more than [that day’s] worth of records are relevant.”). However, to the
extent he seeks any other records, he has failed to explain the relevance of those records
to the causes of action remaining in this lawsuit. Moreover, service of a single subpoena
seeking records from more than one entity is inefficient. Thus, the Court will allow revised
versions of this subpoena to be served by the United States Marshals’ Service. One
revised subpoena shall be served on the Denver Detention Center and another revised
subpoena shall be served on the Denver Sheriff’s Department. Both shall request copies
of Plaintiff’s medical records from 2006 to 2012, if any, in the possession of the named
entity. Copies of the revised subpoenas are attached as Exhibits A and B.
Plaintiff also requests records from the Department of Regulatory Agencies
(“DORA”), see Motion [#201] at 7, and from Denver Health Ambulance or Paramedic
Division and Denver Health Medical Center, id. at 9. From the former, Plaintiff requests the
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complete file kept by DORA regarding the complaint he made about his catheterization and
any investigation the agency conducted thereafter.

He also requests many other

documents, including case files of other persons who claim they were catheterized without
their consent. To the extent that Plaintiff seeks the case file regarding his own complaint
to the agency, the Court finds that this may be relevant. However, all other documents
requested by Plaintiff are simply irrelevant to his causes of action. Thus, the Court will
allow a revised version of this subpoena to be served by the United States Marshals’
Service. The subpoena shall request from DORA copies of all records relating to Plaintiff’s
complaint about catheterization, including investigative records, if any. A copy of the
revised subpoena is attached as Exhibit C. Regarding Denver Health Ambulance or
Paramedic Division and Denver Health Medical Center, Plaintiff merely requests “the
dispatch and complete incident report for the pickup and transportation” of Plaintiff in
connection with this incident. The Court finds that this information may be relevant to
Plaintiff’s claims, and thus the Court will allow revised versions of this subpoena to be
served by the United States Marshals’ Service. Copies of the revised subpoenas are
attached as Exhibits D and E.
On many of the subpoenas provided by Plaintiff, he asserts that an electronic copy
of these documents may be produced to him in lieu of hard copies. Given Plaintiff’s
incarcerated status, the revised subpoenas shall require production to him by mail of either
hard copies or electronic copies of the documents on a compact disc.3 Accordingly,

3

Nothing in this Order shall be construed as preventing any entity served with a subpoena
from asserting any objection to compliance.

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IT IS HEREBY ORDERED that the Motion [#201] is GRANTED in part, as outlined
above.
Dated: July 30, 2014

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