Roden v. Floyd et al

Filing 84

ORDER granting in part and denying in part Plaintiff's 79 Motion Service--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.
___________________________________/
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S
MOTION FOR ORDER DIRECTING U.S. MARSHAL TO PERSONALLY
SERVE SUBPOENAS FOR PRODUCTION OF EMAILS ON NON-PARTY
WITNESSES AND MDOC LITIGATION MANAGER (DE 79)
This matter came before the Court for consideration of Plaintiff’s motion for
order directing the U.S. Marshal to personally serve subpoenas for production of
emails on non-party witnesses and MDOC litigation manager. (DE 79.) Plaintiff
seeks an order directing the U.S. Marshal Service (USMS) to personally serve
subpoenas on MDOC employees Julius Curling, Melinda Bennette [sic] and J.
Rohrig. (Id.) Plaintiff notes that: “On September 7, 2018 this Court issued an
order directing U S Marshalls [sic] Office to serve these non-party witness
subpoenas (By mailing waiver of service process). These non-party witnesses have
not mailed back any waiver of service forms.” (Id. ¶ 4.) He further notes that,

three months later, he made various efforts to communicate with lawyers at the
Michigan Attorney General’s office to inquire about the status of the subpoenas.
(Id. ¶¶ 5-6.) The motion, which was filed before the expiration of discovery, is
unopposed.
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
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).

2

Here, upon review of Plaintiff’s unopposed motion and the attached
subpoenas, the Court finds no circumstances warranting an exception to the U.S.
Marshal Service’s statutory duty under § 1915(d) as to the subpoenas issued to
non-party MDOC employees Melinda Bennett and J. Rohrig. Plaintiff has waited
long enough without satisfaction. Personal service of the subpoenas is certainly
now justified. Because these two subpoenas attached to Plaintiff’s motion (at ECF
79, Pg ID 1182-83) 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). However, Plaintiff failed to attach to his motion a copy of a
subpoena issued to Julius Curling, and the Court therefore cannot order service
pursuant to 28 U.S.C. § 1915(d).
Accordingly, Plaintiff’s motion is GRANTED in part as to non-party
MDOC employees Melinda Bennett and J. Rohrig, and the Court DIRECTS the
USMS to PERSONALLY serve ECF No. 79, Page IDs 1182 and 1183, on J.
Rohrig and Melinda Bennett at the addresses listed on the subpoenas. However,
Plaintiff failed to attach a subpoena issued to Julius Curling and the Court
accordingly DENIES without prejudice Plaintiff’s motion as to Mr. Curling.
IT IS SO ORDERED.
Dated: February 1, 2019

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE
3

Certificate of Service
I hereby certify that a copy of the foregoing document was sent to parties of record
on February 1, 2019, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

4