Roden v. Floyd et al

Filing 66

ORDER granting in part and denying in part 60 Motion for Service of Subpoena on Non-Party Witnesses for Production of E-mails --Signed by Magistrate Judge Anthony P. Patti. (MWil)

Case 2:16-cv-11208-VAR-APP ECF No. 66 filed 09/07/18

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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, and
RICHARD CADY,
Defendants.
___________________________________/
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S
MOTION FOR SERVICE OF SUBPOENA ON NON-PARTY WITNESSES
FOR PRODUCTION OF E-MAILS (DE 60)
This matter is before the Court for consideration of Plaintiff Jonathan
Roden’s motion for service of subpoena on non-party witnesses for production of
e-mails (DE 60). For the reasons that follow, Plaintiff’s Motion is GRANTED IN
PART AND DENIED IN PART.
A.

Background

Plaintiff, a state prisoner proceeding without the assistance of counsel, filed
his complaint and application to proceed in forma pauperis in the Western District
of Michigan on April 4, 2016. (DE 1.) The Court granted his application on the
same day and transferred the case to this District. (DEs 3, 4.) Plaintiff asserted
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claims for retaliation under the First and Fourteenth Amendments to the United
States Constitution against three defendants, Michelle Floyd, Richard Cady and
Beverly Haynes-Love, alleging that they transferred him from G. Robert Cotton
Correctional Facility (JCF) to a more restrictive correctional facility and removed
him from Jackson College classes because of grievances he filed regarding the
education program and treatment of students. (DE 1.)
On March 15, 2018, the Court entered an Opinion and Order, adopting my
Report and Recommendation, and granting in part and denying in part Defendants’
motion for summary judgment. (DEs 52, 57.) Plaintiff’s claims against Defendant
Haynes-Love were dismissed with prejudice, and his claims against Defendants
Floyd and Cady are to proceed to trial. (Id.)
On May 7, 2018, Plaintiff filed his motion to amend the complaint, in which
he sought to add two defendants, Shawn Brewer, Warden at JCF, and James Roth,
Inspector at JCF, and to add an additional cause of action against all Defendants
for “violation of the United States Constitution Eighth and Fourteenth
Amendments and Michigan common law by civil conspiracy through concerted
actions, manufacturing a false sexual harassment allegation.” (DE 59.) The Court
granted this motion on September 5, 2018, and directed the United States Marshals
Service (USMS) to serve the Amended Complaint on Shawn Brewer and James
Roth. (DE 65.)
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B.

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Instant Motion

On May 7, 2018, Plaintiff filed the instant motion for service of subpoena on
non-party witnesses for production of e-mails, seeking an order directing the
USMS to serve subpoenas attached to his motion on, at that time, three non-party
Michigan Department of Corrections (MDOC) employees, Melinda Bennett, J.
Rohrig, and Shawn Brewer. (DE 60.) This motion is unopposed. For the reasons
that follow, Plaintiff’s unopposed motion for service of subpoena on non-party
witnesses for production of emails (DE 60) is GRANTED IN PART AND
DENIED IN PART.
C.

Discussion

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. 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).

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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 non-party MDOC
employees Melinda Bennett and J. Rohrig. Because these subpoenas 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 as to non-party MDOC employees
Melinda Bennett and J. Rohrig, and the Court DIRECTS the USMS to serve ECF
No. 60, Page IDs 1076 and 1079, on J. Rohrig and Melinda Bennett at the
addresses listed on the subpoenas.
However, Shawn Brewer is now a named defendant in Plaintiff’s Amended
Complaint. (See DE 59 Page ID 1047-1058.) As a general rule, subpoenas issued
under Fed. R. Civ. P. 45 are not meant to serve as discovery tools among parties.
Marvin v. Capital One, No. 1:15-cv-1310, 2016 WL 8468059, at *1 (W.D. Mich.
Aug. 16, 2016) (collecting cases). Thus, Plaintiff should be able to serve a
document request on Shawn Brewer pursuant to Fed. R. Civ. P. 34, once he has
been served and has entered an appearance in this matter. See Roofers Local 149
Security Benefit Trust Fund v. Milbrand Roofing Group, Inc., No. 05-CV-60218,
2007 WL 2421479, at *1 (E.D. Mich. Aug. 22, 2007) (“[A] party cannot use a
subpoena under Rule 45 as a substitute to Rule 34 for the production of documents
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and things from another party to the litigation.”). Accordingly, Plaintiff’s motion
is DENIED with respect to Defendant Shawn Brewer.
IT IS SO ORDERED.
Dated: September 7, 2018

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 September 7, 2018, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti
[phone]

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