Yang v. Missouri Department of Corrections et al

Filing 41

MEMORANDUM AND ORDER 40 PRO SE MOTION Issuance of Subpoena filed by Plaintiff Richard Yang motion is DENIED. IT IS FURTHER ORDERED that defendants shall SHOW CAUSE by September 16, 2013, why plaintiff cannot be permitted the opportunity to obtain an affidavit or declaration fromSECC inmate Carlos Mendoza.( Show Cause Response due by 9/16/2013.). Signed by District Judge Stephen N. Limbaugh, Jr on 8/14/13. (MRS)

Yang v. Missouri Department of Corrections et al

Doc. 41

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
RICHARD YANG,
Plaintiff,
v.
MISSOURI DEPARTMENT
OF CORRECTIONS, et al.,
Defendants.

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Case No. 1:12CV92 SNLJ

MEMORANDUM AND ORDER
Plaintiff , an inmate at the Southeast Correctional Center (“SECC”), brings this 42 U.S.C.
§1983 action against the Missouri Department of Corrections and others alleging violations of
his constitutional rights pertaining to the handling of his mail and telephone usage. Currently
before the Court is plaintiff’s motion seeking the issuance of a subpoena on another inmate at
SECC. The proposed subpoena directs the inmate, Carlos Mendoza, to answer questions
pertaining to Mr. Mendoza’s own alleged experiences with SECC’s censorship of his foreign
language communications. Previously, the Court denied plaintiff’s motion “for writing question
of interrogatories/investigation of an inmate, Carlos Mendoza” (#37), because plaintiff had failed
to submit with his motion the written questions he intends to submit to the deponent, nor had he
demonstrated that he has the ability or willingness to arrange for a court reporter to appear and
conduct the deposition, as required by Rules 30 and 31.
Defendants have not responded to plaintiff’s motion seeking a subpoena. The Federal
Rules of Civil Procedure do not permit plaintiff to obtain the information he seeks through a
subpoena. Rule 45, which governs issuance of subpoenas, permits subpoenas to command
persons “to do the following at specified time and place: attend and testify; produce designated

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documents...or tangible things in that person’s possession, custody, or control; or permit the
inspection of premises.” Fed. R. Civ. P. 45(a)(1)(a)(iii). The Court’s subpoena power does not
include the power to require nonparties to answer written questions under oath and return the
written answers to the plaintiff. Ordinarily, because incarcerated pro se plaintiffs are typically
unable to pay and arrange for depositions, they rely on affidavits from witnesses. It is not clear
whether plaintiff has made an effort to obtain an affidavit from Mr. Mendoza, but the Court is
aware that it may be impossible for plaintiff to obtain an affidavit from Mr. Mendoza if they are
housed in separate wings or if one or both are segregated from the general population. Because
the defendants have custody and control over plaintiff, they will be ordered to show cause why
plaintiff should not be permitted the opportunity to obtain an affidavit from Mr. Mendoza. If the
problem is that Mr. Mendoza is unwilling or unable to provide an affidavit to plaintiff, and not
that plaintiff is physically unable to contact Mr. Mendoza, then plaintiff will have to explore
other avenues or forego obtaining testimony from him.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s Motion for Issuance of Subpoena (#40) is
DENIED.
IT IS FURTHER ORDERED that defendants shall SHOW CAUSE by September 16,
2013, why plaintiff cannot be permitted the opportunity to obtain an affidavit or declaration from
SECC inmate Carlos Mendoza.
Dated this 14th day of August, 2013.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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