Roden v. Floyd et al

Filing 101

AMENDED ORDER GRANTING As Unopposed Plaintiff's re: 92 MOTION filed by Jonathan Roden--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JONATHAN RODEN,
Plaintiff
v.

Case No. 2:16-CV-11208
District Judge Victoria A. Roberts
Magistrate Judge Anthony P. Patti

MICHELLE FLOYD,
RICHARD CADY, SHAWN
BREWER, and JAMES ROTH,
Defendants.
___________________________________/
AMENDED ORDER GRANTING AS UNOPPOSED PLAINTIFF’S
MOTION FOR SERVICE OF SUBPOENA ON NON-PARTY AGENT OF
MDOC FOR PRODUCTION OF EMAILS (DE 92)
This matter came before the Court for consideration of Plaintiff’s motion for
service of subpoenas on non-party agent of MDOC for production of emails. (DE
92.) Plaintiff seeks an order directing the U.S. Marshals Service (USMS) to
personally serve subpoenas on Julius Curling, or the current Michigan Department
of Corrections Litigation Manager. (Id.) This motion is unopposed.
Plaintiff explains that on September 7, 2018, this Court issued an order
directing the USMS to serve subpoenas on non-parties Melinda Bennett and J.
Rohrig, seeking various emails, but that “these witnesses did not mail back their
waiver of service forms.” (Id. ¶ 2; DE 66.) Plaintiff then filed a motion for order
directing the USMS to personally serve non-party witnesses and the MDOC

litigation manager. (DE 79.) This motion was granted in part as to non-party
MDOC employees Bennett and Rohrig, but denied without prejudice as to nonparty Julius Curling because Plaintiff failed to attach to his motion a copy of a
subpoena to Mr. Curling. (DE 84.)1 Plaintiff now seeks to correct that error by
attaching the subpoenas to Julius Curling as well as the subpoenas to Bennett and
Rohrig, which he requests also be served on Curling. (DE 92 ¶¶ 6-7; id. at Pg ID
1305-1308.)
Plaintiff is proceeding in forma pauperis. Consequently, pursuant to 28
U.S.C. § 1915(d), “[t]he officers of the court shall issue and serve all process, and
perform all duties in such cases. Witnesses shall attend as in other cases, and the
same remedies shall be available as are provided for by law in other cases.” 28
U.S.C. § 1915(d). This provision requires the USMS to serve an indigent party’s
subpoena duces tecum, including by personal service. See Modica v. Russell, No.
2:15-cv-00057, 2015 WL 13653879, at *2 (E.D. Cal. Sept. 18, 2015) (a plaintiff
proceeding IFP is entitled to obtain personal service of an authorized subpoena by
the USMS because Fed. R. Civ. P. 45 requires a subpoena to be personally served);
Biers v. Washington State Liquor & Cannabis Bd., No. C15-1518JLR, 2016 WL
7723977, at *1-2 (W.D. Wash. Apr. 21, 2016) (ordering personal service after

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The Court notes that the docket sheet does not reflect a return of service
regarding the subpoenas issued to Bennett and Rohrig indicating that the
subpoenas have been successfully served on them.
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service by mail was not effective). A court, however, may exercise its discretion to
screen such a subpoena request, relieving the USMS of its duty when appropriate.
See 9A C. Wright & A. Miller, Federal Practice and Procedure § 2454, pp. 244-46
n.21 (3d ed. 2010) (citations omitted).
Here, upon review of Plaintiff’s unopposed motion and the attached
subpoenas, the Court finds no circumstances warranting an exception to the U.S.
Marshals Service’s statutory duty under § 1915(d) as to the subpoenas attached to
Plaintiff’s motion. Although the discovery deadline in this case has passed, as
noted above, Plaintiff has been seeking service of these subpoenas since prior to
the discovery cut-off date. Further, the Court notes that there was a “pause” in this
litigation while the parties were pursuing settlement negotiations. Finally, the
motion is unopposed. Because the subpoenas attached to Plaintiff’s motion (at
ECF 92, Pg ID 1305-1308) do not require the attendance of any witness, the fees
for one day’s attendance and the mileage allowed by law need not be tendered.
See Fed. R. Civ. P. 45(b)(1).
Accordingly, Plaintiff’s motion is GRANTED and the Court DIRECTS the
USMS to PERSONALLY serve the subpoenas at ECF No. 92, Page IDs 13051308 at the addresses listed on the subpoenas as expeditiously as possible. The
Court alternatively DIRECTS the USMS to serve the subpoenas at ECF No. 92,
Page IDs 1305-1308 at the addresses listed on the subpoenas by standard, first
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class U.S. Mail, pursuant to Fed. R. Civ. P. 4(e)(1) and M.C.R. 2.105(I)(1). By
way of this Order, Michigan’s Department of Attorney General, who represents the
MDOC defendants in this action, is put on notice of these subpoenas. Costs of
service by the USMS are waived.
Finally, if and/or when counsel is appointed for Plaintiff, to the extent
service ordered herein is unsuccessful, Plaintiff’s counsel shall be authorized to
subpoena the documents sought in the subpoenas at ECF No. 92, Page IDs 13051308 at any time, through the conclusion of trial.
IT IS SO ORDERED.
Dated: June 10, 2019

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE

Certificate of Service
I hereby certify that a copy of the foregoing document was sent to parties of record
on June 10, 2019, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

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