Dailey v. Cascade County Correctional Facility

Filing 24

ORDER denying 23 Motion for Subpeonas. Signed by Magistrate Judge John Johnston on 3/24/2015. Mailed to Dailey. (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
ANTHONY DAILEY,

CV 14-0008-GF-BMM-JTJ

Plaintiff,
vs.

ORDER

LT. BRYCE, C.O. MILLER, UNIT
MANAGER TROMBLEY, and
WARDEN OF CASCADE COUNTY
CORRECTIONAL FACILITY,
Defendants.
Plaintiff Anthony Dailey has filed a Motion Seeking Subpoenas Duces
Tecum. (Doc. 23.) Mr. Dailey seeks discovery from defendants and an affidavit
from another inmate. The motion will be denied for several reasons. First, the
Court has not yet issued a scheduling order in this matter, and the parties cannot
begin discovery until a scheduling order is issued. L.R. 26.1(d). A scheduling
order will be issued after a decision is made on Defendants’ pending Motion for
Summary Judgment. (Doc. 12.)
Second, the Court is not inclined to issue a subpoena to the named
defendants as there are other methods of discovery that will not require Court
intervention or the expenditure of government resources. The authorization of a

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subpoena duces tecum requested by a forma pauperis litigant is subject to
limitations. Alexander v. California Dep’t of Corrections, 2010 WL 5114931
(E.D. Cal). Because personal service of a subpoena duces tecum is required under
Rule 45(b), “[d]irecting the Marshal’s Office to expend its resources personally
serving a subpoena is not taken lightly by the court.” Frazier v. Redding Police
Dep’t, 2012 WL 5868573 (E.D. Cal.) (citation omitted).
Once the Court issues a scheduling order, Mr. Dailey may issue discovery
requests, without subpoena, upon any of the named parties. See Fed.R.Civ.P.
33(a)(1) (“a party may serve on any other party no more than 25 written
interrogatories”); Fed.R.Civ.P. 34(a) (“[a] party may serve on any other party a
request” for the production of documents); Fed.R.Civ.P. 36(a)(1) (“a party may
serve on any other party a written request to admit”). Given that there are other
methods of obtaining the information sought by Mr. Dailey without Court
intervention and without expending the resources of the United States Marshal’s
Office, the request for a subpoena for documents from defendants will be denied.
Mr. Dailey also seeks a subpoena to command a non-party to produce an
affidavit. Rule 45 of the Federal Rules of Civil Procedure allows the issuance of a
subpoena to: “attend and testify; produce designated documents, electronically
stored information, or tangible things in that person’s possession, custody, or
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control; or permit the inspection of premises.” Fed.R.Civ.P. 45(a)(1)(A)(iii).
There is no provision under this rule that allows a party to subpoena a non-party to
create an affidavit, and the Court cannot subpoena an affidavit that does not exist.
See Swan v. U.S., 738 F.Supp.2d 203, 207 (D. Mass. 2010) (the Court cannot
subpoena affidavits (as opposed to the appearance of witnesses to testify at
depositions or at trial)).
Accordingly, Mr. Dailey’s Motion Seeking Subpoenas Duces Tecum (Doc.
23) is DENIED.
DATED this 24th day of March, 2015.

/s/ John Johnston
John Johnston
United States Magistrate Judge

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