Edwards v. Clark County et al

Filing 37

ORDER that 24 Motion for Issuance of Subpoena Duces Tecum is GRANTED in part and DENIED in part. The Clerk of Court shall issue new Summons to Defendants Hightower, Reyes, Mitchell, and Scott as set forth in this order. The Clerk shall issue a su bpoena duces tecum to Non-Party Naphcare, Inc. and deliver a copy of the Subpoena and this order to the United States Marshal for personal service on Naphcare, Inc.'s registered agent for service of process and file a return with the Court. FUR THER ORDERED that the deadline for service under Fed. R. Civ. P. 4(m) is extended sixty (60) days from the date of this Order. FURTHER ORDERED that Plaintiff's Motions 25 and 34 are DENIED as moot. Signed by Magistrate Judge Carl W. Hoffman on 12/12/14. (Copies have been distributed pursuant to the NEF - MMM)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

DISTRICT OF NEVADA

7
RONNIE EDWARDS,
8
9
10
11
12
13

)
)
Plaintiff,
)
)
vs.
)
)
LAS VEGAS METROPOLITAN POLICE
)
DEPARTMENT, et al.
)
)
Defendants.
)
)
__________________________________________)

Case No. 2:13-cv-01316-JAD-CWH
ORDER

14

This matter is before the Court on Plaintiff’s Motion for Issuance of Subpoena Duces Tecum

15

(#24), filed August 18, 2014; Defendant Las Vegas Metropolitan Police Department’s (“Metro”)

16

Response (#26), filed August 28, 2014; and Plaintiff’s Reply (#27), filed September 9, 2014. The

17

matter is also before the Court on Plaintiff’s Motion for Status Check (#25), filed August 28, 2014, and

18

Plaintiff’s Motion of Concern (#34), filed November 17, 2014.

19

Plaintiff’s application to proceed in this matter in forma pauperis (#1) was granted on January

20

14, 2014. See Order (#6). In addition, the Court screened the complaint and held Plaintiff had stated

21

a “colorable claim for deliberate indifference to Plaintiff’s safety” in violation of the Eighth

22

Amendment that should proceed against Defendants Hightower, Reyes, Mitchell, and John Doe.1 Id

23

at 5. The Court also held that Plaintiff stated a colorable claim of deliberate indifference to medical

24

needs in violation of the Eighth Amendment that should proceed against Defendants Dr. Mondora,

25

Nurse Katrina, Reyes, Scott, and several John Does. Id at 8. As such, the Clerk of Court was ordered

26
27
28

1

In permitting the case to proceed against John Doe defendants, the Court noted the general rule that the
use of “Doe” pleading to identify a defendant is disfavored. See Order (#6) at n. 3. Nevertheless, Plaintiff was
not precluded from pursuing discovery to identify unknown defendants and file an amended complaint, if
necessary. Id.

1

to issue summons for Defendants Hightower, Reyes, Mitchell, Scott, Dr. Mondora, and Nurse Katrina

2

and deliver them along with the complaint to the United States Marshal for service. The Clerk was

3

also instructed to send Plaintiff USM-285 forms to fill out and furnish to the U.S. Marshal within 30

4

days. Plaintiff was instructed to file a notice with the Court within 20 days after receiving a copy of

5

the USM-285 form from the Marshal indicating whether service had been accomplished.

6

On February 12, 2014, Plaintiff filed a notice indicating that he was unsure whether he was

7

supposed to provide a copy of the summons and complaint to the Marshal. (#9). On May 22, 2014,

8

the USM-285 returns were filed indicating that none of the six named defendants had been served.

9

(#13). Thereafter, on June 6, 2014, Plaintiff filed a notice confirming that none of the named

10

defendants had been served and a motion requesting an extension of time to effectuate service. See

11

Notice (#14) and Motion (#15).

12

On July 9, 2014, the Court entered an order granting Plaintiff’s motion to extend time to serve

13

and issuing subpoenas duces tecum. (#16). The Court noted the service requirements set forth in its

14

screening order, including the direction for service on Defendants Hightower, Reyes, Mitchell, Dr.

15

Mondora, Nurse Katrina, and Scott. After review of Plaintiff’s motion (#15) and the service return

16

(#13), the Court noted: “[I]t appears Metro refused to comply with the summonses and identify its

17

employees. Instead, it appears Metro refused service because none of the CCDC defendants was

18

identified in the wholly unspecified manner that Metro apparently prefers.” See Order (#16) at 3:4-6.

19

Consequently, the Court issued a subpoena duces tecum pursuant to Fed. R. Civ. P. 45 directed toward

20

the custodian of records at CCDC requiring that the first and last names and last known addresses of

21

all defendants be provided under seal to the United States Marshal. Id. at 4:4-14. Plaintiff was

22

provided an additional 120 days to accomplish service under Rule 4(m).

23

In response to the Rule 45 subpoena, Defendants, through counsel, filed an emergency motion

24

to quash the subpoena. (#20). The Court set the motion for hearing, which went forward as scheduled

25

on August 11, 2014. During the course of the hearing, the parties agreed that the Rule 45 subpoena

26

was no longer necessary. Counsel for Las Vegas Metropolitan Police Department indicated that a

27

renewed request by Plaintiff for a Rule 45 subpoena, at least as to the Metro defendants, was not

28

necessary as Defendants are not trying to evade service. Ultimately, the parties agreed that quashing
2

1

the subpoena was appropriate and that Plaintiff would simply file additional information upon which

2

Metro would be able to adequately identify the Metro Defendants and accept service.

3

Shortly after the hearing, on August 18, 2014, Plaintiff filed the motion currently under

4

consideration. By way of the motion, Plaintiff requests the issuance of two subpoenas duces tecum.

5

Plaintiff has attached several exhibits which provide additional identifying information regarding

6

Defendants Hightower, Reyes, Mitchell, and Scott that he hopes will aid Metro identify the officers.

7

Also, acknowledging that Defendants Mondora and Simeon were employed by a contracted third-party

8

at the time of the alleged incidents, Plaintiff requests a subpoena duces tecum be issued to the

9

registered agent of Naphcare, Inc.

10

In response, Metro indicates that it does not oppose the issuance of the requested subpoena as

11

to the Metro officers, but expresses its belief that the issuance of summons with the name of the Metro

12

officer and their identifying number should be sufficient to permit Metro to accept service on behalf

13

of the individual officers.

14
15

DISCUSSION
1. Metro Defendants

16

Plaintiff requests that the Court issues a subpoena duces tecum to the Custodian of Records at

17

Clark County Detention Center requiring production of the names and addresses of the Metro

18

Defendants Hightower, Reyes, Mitchell, and Scott. The undersigned agrees with defense counsel that

19

a Rule 45 subpoena does not appear necessary as to these defendants. As acknowledged by Metro’s

20

counsel, the information contained in the exhibits attached to Plaintiff’s motion should be sufficient

21

to permit Metro to identify and, if appropriate, accept service on behalf of the named officers.

22

Consequently, the Court will instruct the Clerk to issue new summons for Defendants Hightower,

23

Reyes, Mitchell, and Scott as follows:

24
25
26

Officer Hightower, B13600H
330 S. Casino Center Blvd.
Las Vegas, NV 89101

27

Officer Reyes, 7766
330 S. Casino Center Blvd
Las Vegas, NV 89101

28

Officer Mitchell, 5069
3

1

330 S. Casino Center Blvd.
Las Vegas, NV 89101

2
3

Officer Scott, 8124
330 S. Casino Center Blvd.
Las Vegas, NV 89101

4
The numbers located next to the officers name represent identification numbers provided by the
5
individual officers on the grievance forms attached as exhibits to Plaintiff’s motion (#24). Due to the
6
significant delay in this case and the representation by counsel for Las Vegas Metropolitan Police
7
Department in both its response to Plaintiff’s motion (#26) and during the August 11, 2014 hearing,
8
the Court will order that copies of this order, Plaintiff’s motion (#127), the newly issued summons, and
9
the complaint be provided to the appropriate representative of Las Vegas Metropolitan Department by
10
Metro’s counsel. Las Vegas Metropolitan Police Department shall have twenty-one (21) days from
11
the date of this order to inform the Court whether it will accept service on behalf of the identified
12
defendants. Should Las Vegas Metropolitan Police Department determine that it is unable to accept
13
service on any of these defendants, the Court will set a further hearing.
14
2. Naphcare, Inc. Defendants
15
Defendants Mondora and Katrina appear to be employees of third-party service provider
16
Naphcare, Inc., who is well known to the Court. Plaintiff’s request for a Rule 45 subpoena to the
17
registered agent of Naphcare, Inc. is well taken. The authorization of a subpoena duces tecum
18
requested by an in forma pauperis litigant is subject to limitations. Alexander v. California Dep’t of
19
Corrections, 2010 WL 5114931 (E.D. Cal). Because personal service of a subpoena duces tecum is
20
required under Rule 45(b), “[d]irecting the Marshal’s Office to expend its resources personally serving
21
a subpoena is not taken lightly by the court.” See Frazier v. Redding Police Dep’t, 2012 WL 5868573
22
(E.D. Cal.) (citation omitted). “Limitations include the relevance of the information sought as well as
23
the burden and expense to the non-party providing the requested information.” Id. Normally, a motion
24
for issuance of subpoena duces tecum should clearly identify the documents sought and show that the
25
records are only obtainable through the identified non-party. Id. Non-parties are “entitled to have the
26
benefit of [the] Court’s vigilance” in ensuring the non-party does not suffer excessive or unusual
27
expenses in complying with a subpoena duces tecum. Id.
28
4

1

The information Plaintiff needs in order to effectuate service on Defendants Mondora and

2

Katrina is in possession of non-party Naphcare, Inc. Thus, the Court will approve issuance of a

3

subpoena duces tecum to be served on the registered agent of Naphcare, Inc. by the United States

4

Marshal. Service must be personally made on Naphcare, Inc.’s registered agent, whose address shall

5

be listed on the subpoena as follows:

6
7

Naphcare, Inc.
C/O Registered Agents Legal Services, LTD.
112 N. Curry St.
Carson City, NV 89073

8
Upon receipt, Naphcare, Inc. shall have twenty-one (21) days to provide the last known address and
9
telephone number of Defendant Mondora and Katrina as identified in Plaintiff’s complaint to the Court
10
under seal. Failure to comply may result in significant sanctions, including a recommendation that
11
Naphcare, Inc. and its officers be held in contempt.
12
3. Rule 4(m)
13
On July 9, 2014, the Court entered an order granting Plaintiff an additional 120 days to
14
effectuate, making the deadline to accomplish service under Rule 4(m) by Thursday, November 6,
15
2014. Obviously that date has passed and, through no fault of Plaintiff, service has still not been
16
completed. Federal Rule of Civil Procedure 4(m), which states: “If a defendant is not served within
17
120 days after the complaint is filed, the court–on motion or on its own after notice to the
18
plaintiff–must dismiss the action without prejudice against that defendant or order that service be made
19
within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the
20
time for service for an appropriate period. Fed. R. Civ. P. 4(m). Courts have broad discretion to
21
extend time for service under Rule 4(m). Efaw v. Williams, 473 F.3d 1038, 1041(9th Cir. 2003). The
22
120-day time period for service contained in Rule 4(m) “operates not as an outer limit subject to
23
reduction, but as an irreducible allowance.” Henderson v. United States, 517 U.S. 654, 661 (1996).
24
“On its face, Rule 4(m) does not tie the hands of the district court after the 120-day period has expired.
25
Rather, Rule 4(m) explicitly permits a district court to grant an extension of time to serve the complaint
26
after that 120-day period.” Mann v. American Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003).
27
Moreover, the Advisory Committee Notes to Rule 4(m) state that the rule “explicitly provides that the
28
5

1

court shall allow additional time if there is good cause for the plaintiff’s failure to effect service in the

2

prescribed 120 days, and authorizes the court to relieve a plaintiff of the consequences of an application

3

of [Rule 4(m)] even if there is no good cause shown.” See Fed. R. Civ. P. 4(m), Advisory Committee

4

Notes, 1993 Amendments. Generally, “good cause” is equated with diligence. See Wright & Miller,

5

Federal Practice and Procedure: Civil 3d § 1337.

6

Though not stated with precision, the Court construes Plaintiff’s motion (#24) to include a

7

request for an extension of time to effectuate service under Rule 4(m). Plaintiff has been diligent in

8

his efforts and, therefore, the Court will grant an additional 60 days to accomplish service measured

9

from the date of this order.

10

Based on the foregoing and good cause appearing,

11

IT IS HEREBY ORDERED that Plaintiff’s Motion for Issuance of Subpoena Duces Tecum

12

(#24) is granted in part and denied in part.

13

IT IS FURTHER ORDERED that the Clerk of Court shall issue new Summons to Defendants

14

Hightower, Reyes, Mitchell, and Scott as set forth in this order. A copy of the new Summons,

15

Complaint, Plaintiff’s Motion (#24), and this order shall be delivered to counsel for Las Vegas

16

Metropolitan Police Department as identified on the docket.

17

IT IS FURTHER ORDERED that Counsel for Las Vegas Metropolitan Police Department

18

shall deliver a copy of the new Summons, Complaint, Plaintiff’s Motion (#24), and this order to Las

19

Vegas Metropolitan Police Department who, in turn, shall have twenty-one (21) days from the date of

20

this order to inform the Court whether it will accept service on behalf of the identified defendants.

21

IT IS FURTHER ORDERED that the Clerk of Court shall issue a subpoena duces tecum to

22

Non-Party Naphcare, Inc. and deliver a copy of the Subpoena and this order to the United States

23

Marshal for personal service on Naphcare, Inc.’s registered agent for service of process and file a return

24

with the Court.

25

provide the last known address and telephone number of Defendant Mondora and Katrina as identified

26

in Plaintiff’s complaint to the Court under seal. Failure to comply may result in sanctions, up to and

27

including a recommendation that Naphcare, Inc. and/or its officers be held in contempt.

28

Naphcare, Inc. shall have twenty-one (21) days from receipt of the subpoena to

IT IS FURTHER ORDERED that the deadline for service under Fed. R. Civ. P. 4(m) is
6

1

extended sixty (60) days from the date of this Order.

2

IT IS FURTHER ORDERED that Plaintiff’s Motions (#25) and (#34) are denied as moot.

3

DATED: December 12, 2014.

4
5
6

______________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7