Galan-Olavarria v. Flournoy
REPORT AND RECOMMENDATIONS that the Court DENIES Petitioner's 1 MOTION in Support of Subpoena to Obtain Electronically Stored Information. I recommend that the Court DISMISS this case and DIRECT the Clerk to CLOSE this case. The Court ORDERS a ny party seeking to object to this Report and Recommendation to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered (Objections to R&R due by 4/25/2017). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 4/11/2017. (ca)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
Scott L. Poff, Clerk
United States District Court
By staylor at 10:55 am, Apr 11, 2017
CIVIL ACTION NO.: 2:16-mc-2
WARDEN VICTOR FLOURNOY,
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This matter is before the Court on Petitioner’s Motion in Support of Subpoena. (Doc. 1.)
In addition to his Motion in Support of Subpoena, Petitioner filed a Motion to Set Expedited
Deadlines, (doc. 5), and a Motion to Compel Subpoena, (doc. 6). For the reasons set forth
below, the Court DENIES Petitioner’s Motion in Support of Subpoena. (Doc. 1.) Therefore, the
Court DISMISSES AS MOOT Petitioner’s Motion to Set Expedited Deadlines and Motion to
Compel Subpoena. (Docs. 5, 6). I recommend that the Court DISMISS this case and DIRECT
the Clerk of Court to CLOSE this case.
On April 8, 2016, Petitioner Rafael Galan-Olavarria, an inmate at the Federal
Correctional Institution in Jesup, Georgia, (“FCI Jesup”) commenced this action by filing the
instant Motion with this Court. (Doc. 1.) Therein, Petitioner requests that the Court issue a
subpoena for production of electronically stored information kept by prison authorities at FCI
Specifically, he seeks recorded conversations sustained between Petitioner and his
criminal defense attorney through the prison’s telephone system. (Id. at pp. 4–5.) Petitioner
explains that, during these recorded conversations, his former counsel admitted to rendering
ineffective assistance of counsel during petitioner’s criminal trial. (Id. at p. 2.) Petitioner
maintains that these records are necessary to show deficient performance by his counsel. Other
than the Motion in Support of Subpoena, (doc. 1), and two related Motions, Petitioner has not
made any other filings in this Court. 1
Federal courts are courts of limited jurisdiction possessing only the power strictly
authorized by the Constitution and statutes. Kokkonen v. Guardian Life Ins. Co. of Am., 511
U.S. 375, 377 (1994). The court’s jurisdiction cannot be expanded merely through judicial
decree. Id. (citations omitted). “It is to be presumed that a cause lies outside this limited
jurisdiction, and the burden of establishing the contrary rests upon the party asserting
jurisdiction.” Id. (internal citations omitted).
Petitioner does not allege any basis in his Motion for the Court to exercise jurisdiction in
this case. Petitioner states that he requires access to these telephone records to prove that his trial
counsel was ineffective.
However, Petitioner does not indicate that any action is pending
between Petitioner and his attorney, much less an action in this Court or any other federal court.
Furthermore, Petitioner has not brought any claims in this Court seeking relief of any kind other
than moving for a subpoena. Accordingly, this Court does not have jurisdiction to subpoena the
requested records. See U.S.Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S.
72, 76 (1988) (“[T]he subpoena power of a court cannot be more extensive than its
jurisdiction. . . . [I]f a district court does not have subject-matter jurisdiction over the underlying
action . . . then the process is void”); United States v. Morton Salt Co., 338 U.S. 632, 642 (1950)
In addition to his Motion in Support of Subpoena, Plaintiff filed a Motion to Set Expedited Deadlines,
(doc. 5), and a Motion to Compel Subpoena, (doc. 6), in which he requests identical relief.
(“The judicial subpoena power . . . is subject to those limitations inherent in the body that issues
them”); McCook Metals LLC v. Alcoa, Inc., 249 F.3d 330, 334 (4th Cir. 2001) (ancillary court’s
power to issue subpoenas is dependent on jurisdiction of court where underlying action is
pending); Houston Bus. Journal, Inc. v. Office of the Comptroller of the Currency, 86 F.3d 1208,
1213 (D.C. Cir. 1996) (“[T]he district court is . . . without power to issue a subpoena when the
underlying action is not even asserted to be within federal-court jurisdiction”); Sullivan v.
Dickson, 283 F.2d 725, 727 (9th Cir. 1960) (motion to inspect documents under Fed. R. Civ. P.
34 or 45(b) cannot be granted in absence of pending proceeding); In re Rum Mktg. Int’l, Ltd.,
No. 07-21466-MC, 2007 WL 2702206, at *2 (S.D. Fla. Sept. 14, 2007) (“Here, however, there is
no pending case before another federal court that has subject matter jurisdiction over the parties
and the litigation. Consequently, there is no jurisdiction purely under the provisions of Rules 26
or 45 for counsel for [one party] to issue a Rule 45 subpoena, nor any jurisdiction for counsel for
[the other party] to move to quash that subpoena.”) cf. 9A Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 2456 at 29 (2d ed. 1995) (“subpoena may issue only in
aid of a pending action”).
To the extent that Petitioner seeks these phone records for an ongoing criminal case, he
should petition the court in which that case is pending for a subpoena. While FCI Jesup is
located within this District, Rule 17(e) of the Federal Rules of Criminal Procedure provides for
service of a subpoena upon a witness at any place within the United States. In re Subpoenas
Duces Tecum, 248 F. 137, 137 (E.D. Tenn. 1916) (the authorization of subpoenas for witnesses
in criminal cases to run into any other district includes subpoenas duces tecum as well as the
ordinary subpoenas ad testificandum.). 2
This Court issues no opinion as to whether any other court should issue Petitioner’s requested
For the above stated reasons, the Court DENIES Petitioner’s Motion in Support of
Subpoena. (Doc. 1.) Therefore, the Court DISMISSES AS MOOT Petitioner’s Motion to Set
Expedited Deadlines and Motion to Compel Subpoena. (Docs. 5, 6). Moreover, Petitioner does
not request any relief in this case other than the issuance of a subpoena, and Petitioner has not
properly invoked this Court’s jurisdiction in any way. Accordingly, there is nothing further for
this Court to do in this matter. Consequently, I recommend that the Court DISMISS this case
and DIRECT the Clerk of Court to CLOSE this case.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the Complaint must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of Objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge. The Clerk of Court is DIRECTED
to serve a copy of this Report and Recommendation upon the Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 11th day of April,
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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