Alspach v. Hunter et al

Filing 28

OPINION AND ORDER DENYING 25 MOTION for Subpoena for Records and Reports filed by Larry Alspach. Signed by Magistrate Judge Roger B Cosbey on 4/15/11. (jcp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

LARRY ALSPACH,

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Plaintiff,
v.
BETSY WORDEN,
Defendant.

CAUSE NO. 1:10-cv-421

OPINION AND ORDER
This matter is before the Court on the pro se Plaintiff’s Motion for Subpoena for Records
and Reports. (Docket # 25.) The Plaintiff is apparently seeking a Federal Rule of Civil
Procedure 45 subpoena duces tecum to compel a non-party, the records custodian at the Miami
County Jail, to provide him with his October 4, 2010, through October 10, 2010, medical
records. The Plaintiff’s Motion, however, is DENIED.
As a general rule, parties proceeding in forma pauperis under 28 U.S.C. § 1915, such as
the Plaintiff, are required to bear their own litigation expenses. McNeil v. Lowney, 831 F.2d
1368, 1373 (7th Cir.1987). The Plaintiff’s right to access the courts does not grant him the right
to have the defendants or the public pay for the costs of his litigation—“there is no right of
subsidized access.” Johnson v. Daley, 339 F.3d 582, 586 (7th Cir. 2003); Lewis v. Sullivan, 279
F.3d 526, 528 (7th Cir. 2002).
More specifically, a Rule 45 subpoena must not impose an “undue burden or expense” on
the person subject to the subpoena. Fed. R. Civ. P. 45(c)(1); Tuvalu v. Woodford, No. CIV

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S-04-1724 DFL KJM P, 2006 WL 3201096, at *5 (E.D. Cal. Nov. 2, 2006) (“[A] party’s ability
to use a subpoena duces tecum is circumscribed by the relevance standards of Federal Rule of
Civil Procedure 26(b)(1) and by the court’s duty to ensure that a subpoena does not impose
undue burden or expense on a person subject to that subpoena.”). The law is clear that the
Plaintiff cannot shift the cost of obtaining discovery to the Court or to non-parties. See, e.g.,
Tabron v. Grace, 6 F.3d 147, 159-60 (3d. Cir. 1993); Leadbetter v. City of Fort Wayne, No.
1:06-CV-285, 2007 WL 2323109, at *2 (N.D. Ind. Aug. 10, 2007); Smith v. Campagna, No. 94
C 7628, 1996 WL 364770, at *1 (N.D. Ill. June 26, 1996) (“[T]his court has no authority to
finance or pay for a party's discovery expenses even though the party has been granted leave to
proceed in forma pauperis under 28 U.S.C. § 1915(a).”); Gregg v. Clerk of U.S. District Ct., 160
F.R.D. 653, 654-44 (N.D. Fla. 1995); Badman v. Stark, 139 F.R.D. 601, 604-06 (M.D. Pa. 1991).
In the present case, there is no indication that the Plaintiff has made any provision for the
cost of his requested discovery and the Plaintiff does not provide an estimate of the volume of
his request. To require the Miami County Jail to prepare copies of the Plaintiff’s medical
records would seemingly, on its face, impose an impermissible shifting of litigation expenses to
a non-party and thus run counter to the true tenor of Rule 45. See Tabron, 6 F.3d at 159-60;
Leadbetter, 2007 WL 2323109, at *2; Smith, 1996 WL 364770, at *1. Consequently, “[i]t would
be a wasteful and frivolous expenditure of the Court’s and the Marshals Service’s time and
resources to issue and serve such subpoenae if [the Plaintiff] has not made provision for his share
of those costs beforehand.” Jackson v. Brinker, No. IP 91-471-C, 1992 WL 404537, at *6 (S.D.
Ind. Dec. 21, 1992).
Therefore, the Plaintiff’s Motion (Docket # 25) is DENIED. If, however, the Plaintiff

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should establish that he has the necessary funds to pay for the costs of the documents he seeks,
he may then renew his request, because at that point, the non-party will presumably no longer be
subject to the significant expense involved in complying with the subpoena.
SO ORDERED.
Enter for April 15, 2011.
/S/ Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge

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