Alspach v. Hunter et al

Filing 33

OPINION AND ORDER GRANTING 31 MOTION for Records and Reports filed by Larry Alspach. The Clerk is DIRECTED to provide pltf a copy of this Order and signed but otherwise blank subpoena for service as outlined; GRANTING pltf's 32 MOTION for Extension of Time to File Response to 21 MOTION for Summary Judgment to/including 7/15/11. Signed by Magistrate Judge Roger B Cosbey on 5/19/11. (jcp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
LARRY ALSPACH,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
BETSY WORDEN,
Defendant.

Case No. 1:10-cv-421

OPINION AND ORDER
Before the Court in this 42 U.S.C. § 1983 case advancing an Eighth Amendment claim is
pro se Plaintiff’s Motion for Records and Reports (Docket # 31) and Motion for Extension of
Time (Docket # 32). For the following reasons, Plaintiff’s motions will be GRANTED.
This is Plaintiff’s second request to subpoena the records custodian at the Miami County
Jail, a non-party, to provide him with his medical records. (See Docket # 25.) His first request,
which sought his medical records from October 4, 2010, to October 10, 2010, was denied because
Plaintiff, who is proceeding in forma pauperis under 28 U.S.C. § 1915, did not provide an
estimate of the volume of his request and there was no indication that he had made any provision
for the cost of his requested discovery. (Docket # 28.) Of course, “this 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).” Smith v. Campagna, No. 94 C 7628, 1996
WL 364770, at *1 (N.D. Ill. June 26, 1996).
In the instant motion, Plaintiff has narrowed his records request to the period of October 4,
2010, to October 7, 2010, and represents that he will pay for the copies obtained. As a result, the
“burden and expense” on the Miami County Jail would likely be de minimus. See Fed. R. Civ. P.

45(c)(1) (“A party . . . responsible for issuing and servicing a subpoena must take reasonable
steps to avoid imposing undue burden or expense on a person subject to the subpoena.”). Plaintiff
explains that he needs these records to respond to Defendant Betsy Worden’s pending motion for
summary judgment, to verify that he contacted Worden on October 4, 2010, concerning his
medical treatment and that she ordered him to be placed in isolation.
Accordingly, Plaintiff’s Motion for Records and Reports (Docket # 31) is GRANTED.
The Clerk is DIRECTED to provide Plaintiff, together with a copy of this Order, with a signed
but otherwise blank subpoena consistent with AO-88B (Subpoena to Produce Documents), and
Plaintiff is to complete the subpoena before effecting service. Fed. R. Civ. P. 45(a)(3). Plaintiff
may achieve service by sending the completed subpoena to the records custodian at the Miami
County Jail by certified mail. Fed. R. Civ. P. 45(b); see Doe v. Hersemann, 155 F.R.D. 630, 630
(N.D. Ind. 1994) (stating that when a mail carrier is a non-party more than eighteen years old,
certified mail may assure the delivery foreseen by Federal Rule of Civil Procedure 45(b)(1)); see
also Laun v. Laun, No. 1:06-CV-246, 2007 WL 178607, at *1 n.1 (N.D. Ind. Jan. 19, 2007).
Additionally, in order to allow sufficient time for Plaintiff to serve the subpoena and for
the records custodian at Miami County Jail to respond, Plaintiff’s motion for extension of time
(Docket # 32) to respond to Worden’s motion for summary judgment is also GRANTED.
Plaintiff shall have up to and including July 15, 2011, to file his response to Worden’s summary
judgment motion.
SO ORDERED.
Entered this 19th day of May, 2011.
/S/ Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge