Townsend v. Rhodes et al

Filing 47

ORDER GRANTING Plaintiff's 46 Motion for Subpoena. Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RICHARD TOWNSEND,
Plaintiff,
Case No. 4:14-CV-10411
Judge Terrence G. Berg
Magistrate Judge Anthony P. Patti

v.

KAREN RHODES,
VICKI CARLSON,
LINDA HAASE,
MARCIA O’CONNELL and
JOHN DOES 1-4,
Defendants.
___________________________________/
ORDER GRANTING PLAINTIFF’S APRIL 13, 2015 MOTION FOR
SUBPOENA (DE 46)
A.

Background
Richard Townsend (#181420) is currently incarcerated at the Michigan

Department of Corrections (MDOC) Lakeland Correctional Facility (LCF) in
Coldwater, Michigan. DE 9; see also www.michigan.gov/corrections, “Offender
Search.” On January 27, 2014, while incarcerated at the G. Robert Cotton
Correctional Facility (JCF) in Jackson, Michigan, Plaintiff filed the instant lawsuit

against Defendants Rhodes, Carlson, Haase and O’Connell and John Does #1-#4.
DE 1 ¶¶ 25-28.1
The named defendants have appeared. DEs 23, 24 & 27. Plaintiff identified
the John Doe defendants on April 9, 2015: (1) Brett Ruessell, M.D.; (2) Heather
Taylor, R.N.; (3) Shawn Letarte, M.D.; and (4) Leigh Stroll, R.N. DE 43.
However, these four (4) previously unnamed defendants were voluntarily
dismissed without prejudice on April 13, 2015. DE 45.
B.

Pending Dispositive Motion
MDOC Defendants Carlson, Haase and O’Connell filed a motion for

summary judgment (DE 28) on October 27, 2014. On February 6, 2015, Plaintiff
filed a response (DE 33).
Relatedly, on April 9, 2015, Plaintiff filed a motion (DE 42) to correct a
clerical error in his complaint (DE 1), which the Court intends to address along
with the dispositive motion.
C.

Discussion of the Instant Motion
Currently before the Court is Plaintiff’s April 13, 2015 motion (DE 46) for

subpoena, whereby Plaintiff seeks “to examine[ and] inspect his complete medical
records in the possession of the Defendant and the Department of Corrections.”

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 This

case was originally assigned to Judge Berg and Magistrate Judge Komives.
DE 1. Judge Berg referred the case to Magistrate Judge Komives for pretrial
matters. DE 5. On January 13, 2015, the case was reassigned from Magistrate
Judge Komives to me. 
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DE 46 at 2. According to Plaintiff, he is indigent and “cannot afford to obtain a
complete copy of his medical, dental and optometry records to substantiate his
claims.” DE 46 at 1 ¶ 2. It also appears that Plaintiff seeks production of certain
MDOC policies and procedures. DE 46 at 1-2 ¶¶ 4, 5.
Plaintiff’s April 13, 2015 motion (DE 46) is granted. As an initial matter, it
was proper for Plaintiff to cite Fed. R. Civ. P. 45, because Plaintiff seeks
information from non-party MDOC. While Carlson, Haase and O’Connell are
MDOC defendants, as opposed to contract employees, the MDOC itself is not a
party to this case.
A party may seek information from a non-party by way of subpoena (Fed. R.
Civ. P. 45). However, “[t]he clerk must issue a subpoena, signed but otherwise in
blank, to a party who requests it. That party must complete it before service. An
attorney also may issue and sign a subpoena if the attorney is authorized to practice
in the issuing court.” Fed. R. Civ. P. 45(a)(3). Thus, “a pro se litigant is not
authorized to issue his own subpoena.” White v. Johnson, No. 12–cv–623–JPG,
2012 WL 2884829, 4 (S.D. Ill. July 13, 2012); see also Pearson v. Trinity Yachts,
Inc., No. 10-2813, 2011 WL 1884730, 1 (E.D. La. May 18, 2011) (“Although an
attorney, as an officer of the court, may sign a subpoena without obtaining the
Clerk's signature, Fed.R.Civ.P. 45(a)(3) does not permit a pro se plaintiff to do
so.”); Fletcher v. Brown County, No. 05-5024, 2007 WL 2248097, 2 (D. Neb. Aug.
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2, 2007) (“While an attorney as an officer of the court may also issue and sign a
subpoena, see Fed.R.Civ.P. 45(a)(3), Fletcher, as a pro se party, is not authorized
to do so.”).
The Court interprets Plaintiff’s April 13, 2015 motion (DE 46) as a request
that the Clerk of the Court issue a subpoena. “The clerk must issue a subpoena,
signed but otherwise in blank, to a party who requests it.” Fed. R. Civ. P. 45(a)(3).
Accordingly, the undersigned will require the Clerk of this Court to issue and sign
a Form AO 88B (“Subpoena to Produce Documents, Information, or Objects or to
Permit Inspection of Premises in a Civil Action”) and to send it to Plaintiff. It will
then be Plaintiff’s responsibility to complete the form (see Fed. R. Civ. P. 45(a)(3))
and ensure that it is properly served (see Fed. R. Civ. P. 45(b)).2

2

 Plaintiff

is reminded that, in pursuing this case, he must comply with the
appropriate court rules, including the Federal Rules of Civil Procedure and the
Local Rules of the E.D. Michigan. During the discovery phase, Fed. Rules Civ. P.
26-37 are particularly relevant, as are the E.D. Mich. LRs regarding motion
practice (E.D. Mich. LR 7.1) and discovery (E.D. Mich. LRs 26.1 – 37.2). For
example, aside from certain information the parties are required to disclose (see
Fed. R. Civ. P. 26(a)), there is a rule governing depositions by oral examination
(Fed. R. Civ. P. 30). Also, there are rules which govern the exchange of
information between parties by way of interrogatories (Fed. R. Civ. P. 33),
requests for the production of documents (Fed. R. Civ. P. 34) or requests for
admission (Fed. R. Civ. P. 36).
Also, the E.D. Mich. LRs discuss seeking concurrence with respect to a
motion. See E.D. Mich. LR 7.1(a) (“Seeking Concurrence in Motions and
Requests.”) or E.D. Mich. LR 37.1 (“Motion to Compel Discovery”). See also
E.D. Mich. LR 37.2 (“Form of Discovery Motions”). If Plaintiff carefully follows
the discovery procedures spelled out in Fed. R. Civ. P. 26-37 and E.D. Mich. LRs
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D.

Order
Upon consideration, Plaintiff’s April 13, 2015 motion for subpoena (DE 46)

is GRANTED. The Clerk of the Court SHALL issue and sign a Form AO 88B
(“Subpoena to Produce Documents, Information, or Objects or to Permit
Inspection of Premises in a Civil Action”) and send it to Plaintiff. Plaintiff will be
required to complete the form and ensure that it is properly served upon the
intended recipient.
IT IS SO ORDERED.

Dated: April 20, 2015

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

26.1 – 37.2, and seeks concurrence when required, it may well prove unnecessary
to involve the Court in further discovery matters. 
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