Edwards v. Dwyer et al

Filing 320

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that the Court will not direct the U. S. Marshal to serve the subpoenas duces tecum submitted by plaintiff, because the subpoenas do not comply with the Courts Memorandum and Order of June 23, 2011, for the reasons stated herein. IT IS FURTHER ORDERED that the Clerk of the Court shall send plaintiff one blank subpoena form, which plaintiff may fill out as required by this Memorandum and Order and returnto the Court with a Memorandum for Clerk requesting that the subpoena be served by the U.S. Marshal. IT IS FURTHER ORDERED that if plaintiff requests additional blank subpoena forms in the future, each such request must be accompanied by a Memorandum for Clerk that includes the following information for each requested subpoena: (1) the name of the person or entity plaintiffseeks to serve; (2) the specific documents plaintiff seeks; (3) how the specified documents are relevant to plaintiffs efforts to collect his judgment from defendant Cobbs; and (4) why plaintiff believes the person or entity to be subpoenaed has possession of the documents. Signed by Honorable Charles A. Shaw on 8/23/11. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

LAWRENCE MARTIN EDWARDS,
Plaintiff,
v.
CHUCK DWYER, et al.,
Defendants.

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No. 1:06-CV-1 CAS

MEMORANDUM AND ORDER
This closed prisoner civil rights matter under 42 U.S.C. § 1983 is before the Court on
plaintiff’s pro se Memorandum for Clerk, which is accompanied by two completed subpoenas duces
tecum in a civil case pursuant to Rule 45(d)(1), Federal Rules of Civil Procedure. Plaintiff’s
Memorandum for Clerk and subpoenas were submitted in response to the Court’s Memorandum and
Order of June 23, 2011, which denied plaintiff’s motion to compel. For the following reasons, the
Court will not direct the U.S. Marshal to serve the subpoenas duces tecum submitted by plaintiff,
but rather will direct the Clerk to send plaintiff a blank subpoena form, which plaintiff shall
complete in accordance with the directions in this Order.
The two completed subpoenas duces tecum plaintiff submitted are directed to (1) Missouri
Assistant Attorney General Karin A. Schute, and (2) George Lombardi, Director of the Missouri
Department of Corrections. Plaintiff’s accompanying Memorandum for Clerk states that he believes
these individuals “have in their possession information relevant to judgment debtor Tamara Cobbs”
and specifically seeks (1) Cobbs’ employment application; (2) Cobbs’ employment records; (3) “any
and all documents related to Tamara Cobbs that can be used to locate her whereabouts, including
but not limited to her marriage certificate;” and (4) Cobbs’ driver’s license number, Social Security

number, and “any documentation within its means to determine Ms. Cobbs’ whereabouts in this
action.” Pl.’s Mem. for Clerk at 1.
The Memorandum and Order of June 23, 2011 stated in part,
The Memorandum for Clerk must include the following information for each
subpoena: (1) the name of the person or entity plaintiff seeks to serve; (2) the
specific documents plaintiff seeks; (3) how the specified documents are relevant to
plaintiff’s efforts to collect his judgment from defendant Cobbs; and (4) why plaintiff
believes the person or entity to be subpoenaed has possession of the documents.
Mem. and Order of June 23, 2011 at 5. The Order also stated that the subpoena forms submitted by
plaintiff should be typewritten, if possible, or “otherwise must be legible or they will not be
considered.” Id. Finally, the Order stated that “the Court retains the discretion to refuse to issue
Rule 45 subpoenas to nonparties if plaintiff does not provide the required information in the
Memorandum for Clerk, or if the Court believes the requests are frivolous or otherwise improper.”
Id. at 6.
Plaintiff failed to comply with the Court’s Order because he did not explain why he believes
these two persons have the documents he seeks. The Court will assume that Mr. Lombardi, Director
of the Missouri Department of Corrections, may have some of the documents plaintiff seeks, because
defendant Cobbs used to be employed by the Department of Corrections.
The Court cannot make such an assumption with respect to Ms. Schute, an Assistant
Attorney General who entered her appearance in this closed case in June 2011. As plaintiff is aware,
the Missouri Attorney General’s Office never entered an appearance on behalf of defendant Cobbs
in this case, and never employed her. Plaintiff does not explain why he believes that Ms. Schute
would have possession of Cobbs’ employment application or records, her marriage license, Social
Security number, or other specified information. In the exercise of its discretion, the Court will
refuse plaintiff’s request to have the U.S. Marshal serve a Rule 45 subpoena duces tecum on Ms.

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Schute, because the request appears to be frivolous and an unreasonable or abusive use of the
Court’s process.
With respect to the subpoena duces tecum directed to Mr. Lombardi, the Court will require
plaintiff to resubmit the subpoena in a more concise and readable manner. The Court previously
directed the Clerk to send plaintiff four blank subpoena forms, to allow plaintiff to direct subpoenas
to as many as four persons or entities. Instead, plaintiff used two subpoena forms for each
subpoenaed person, and included irrelevant and immaterial information on both. Plaintiff should
only use one subpoena form for each person or entity to be subpoenaed.
In preparing a new subpoena duces tecum directed to Mr. Lombardi, in the section of the
subpoena form that states, “YOU ARE COMMANDED to produce and permit inspection and
copying of the following documents or objects at the place, date, and time specified below (list
documents or objects):” plaintiff should only list the documents or objects he seeks to obtain from
Mr. Lombardi. Plaintiff should leave out all information about how he obtained the judgment
against Cobbs, the amount of the judgment, the fact that Cobbs assaulted plaintiff, that plaintiff
seeks to garnish Cobbs’ wages, etc.
If plaintiff needs additional room to include information in this section of the subpoena form,
he should attach a blank page to the subpoena form, write “see attached” on the subpoena form, and
write the additional information on the attached blank page. If possible, plaintiff should type the
subpoena form, or carefully hand write the information in a print size large enough to be easily read.
The hand-written printing on the current subpoenas is too small to be easily read and is not clearly
legible.
The Court will direct the Clerk to send plaintiff a blank subpoena form. Plaintiff may fill
out the subpoena form as directed in this Order and return it to the Court along with a Memorandum

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for Clerk requesting that the subpoena be served. Plaintiff should not sign the subpoena, as it will
be signed by the Clerk after it is returned to and reviewed by the Court.
If plaintiff requests additional blank subpoena forms in the future, each such request must
be accompanied by a Memorandum for Clerk that includes the following information for each
requested subpoena: (1) the name of the person or entity plaintiff seeks to serve; (2) the specific
documents plaintiff seeks; (3) how the specified documents are relevant to plaintiff’s efforts to
collect his judgment from defendant Cobbs; and (4) why plaintiff believes the person or entity to be
subpoenaed has possession of the documents.
As stated in the Memorandum and Order of June 23, 2011,
This information is required based on the Court’s “discretionary power to
refuse to subpoena witnesses and to prevent abuse of its process in both civil and
criminal proceedings.” Manning v. Lockhart, 623 F.2d 536, 539 (8th Cir. 1980) (per
curiam). This power may be exercised to protect the resources of the Court and the
U.S. Marshals Service, and to prevent harassment and undue expense of nonparties.
See, e.g., Lloyd v. McKendree, 749 F.2d 705, 707 (11th Cir. 1985).
“Courts exercising inherent supervisory power over in forma pauperis
subpoenas generally consider factors such as the relevance and materiality of the
information requested and the necessity of the particular testimony or documents to
proving the indigent’s case.” Stockdale v. Stockdale, 2009 WL 4030758, at *1 (E.D.
Mo. Nov. 18, 2009); see Tuvalu v. Woodford, 2006 WL 3201096, at *5 (E.D. Cal.
Nov. 2, 2006) (“[A] party’s ability to use a subpoena duces tecum is circumscribed
by the relevance standards of Federal Rule of Civil Procedure 26(b)(1)[.]”); Jackson
v. Brinker, 1992 WL 404537, at *7 (S.D. Ind. Dec. 21, 1992) (court may refuse
indigent party’s request to have U.S. Marshal serve Rule 45 subpoena duces tecum
that is “frivolous, requests immaterial or unnecessary information, is unduly
burdensome, would be reasonably certain to result in the indigent’s responsibility for
significant compliance costs for which he cannot provide, or is otherwise
unreasonable or abusive of the court’s process[.]”)
Mem. and Order of June 23, 2011 at 5-6.

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Accordingly,
IT IS HEREBY ORDERED that the Court will not direct the U. S. Marshal to serve the
subpoenas duces tecum submitted by plaintiff, because the subpoenas do not comply with the
Court’s Memorandum and Order of June 23, 2011, for the reasons stated herein.
IT IS FURTHER ORDERED that the Clerk of the Court shall send plaintiff one blank
subpoena form, which plaintiff may fill out as required by this Memorandum and Order and return
to the Court with a Memorandum for Clerk requesting that the subpoena be served by the U.S.
Marshal.
IT IS FURTHER ORDERED that if plaintiff requests additional blank subpoena forms in
the future, each such request must be accompanied by a Memorandum for Clerk that includes the
following information for each requested subpoena: (1) the name of the person or entity plaintiff
seeks to serve; (2) the specific documents plaintiff seeks; (3) how the specified documents are
relevant to plaintiff’s efforts to collect his judgment from defendant Cobbs; and (4) why plaintiff
believes the person or entity to be subpoenaed has possession of the documents.

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CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 23rd

day of August, 2011.

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