McDonald v. Olivas et al

Filing 104

ORDER denying Plaintiff's 96 Motion to Address Matters Related to Blank Subpoenas. Signed by Magistrate Judge William G. Cobb on 9/17/2014. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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REGINALD MCDONALD,

3:13-cv-00240-MMD-WGC

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Plaintiff,

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v.

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ORDER

OLIVAS, et. al.,

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Defendants.
Before the court is Plaintiff's Motion to Address Matters Related to Blank Subpoenas.
(Doc. # 96.)1

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On July 14, 2014, the court issued an order regarding Plaintiff's various requests for the

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issuance of subpoenas. (Doc. # 71.) The court directed the Clerk's Office to issue Plaintiff eleven

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blank subpoenas so that service could be effectuated by the United States Marshal's Office, and

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advised Plaintiff he needed to fill the subpoenas out and return them to the court within thirty

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days, and if the subpoena required the attendance and testimony of a witness (for an oral

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deposition under Federal Rule of Civil Procedure 30 or deposition by written questions under

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Federal Rule of Civil Procedure 31), Plaintiff was required to submit the applicable witness fees

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along with the completed subpoenas.

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The Clerks' Office subsequently received eleven subpoenas addressed to the individuals

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identified by Plaintiff; however, Plaintiff did not provide the addresses for any of the individuals

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indicated that he sought the production of documents only while simultaneously stating that a

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deposition would be taken by "interrogatories & admissions."

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On August 19, 2014, the court issued an order advising Plaintiff that a deposition by

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"interrogatories and admissions" is not contemplated by the Federal Rules of Civil Procedure for

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Refers to court's docket number.

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a non-party witness; that a party may only serve interrogatories or requests for admission on

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another party; and that for a non-party witness, he has the following options by utilizing a

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subpoena under Rule 45: (1) oral deposition (Fed. R. Civ. P. 30); (2) deposition by written

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questions (Fed. R. Civ. P. 31); and (3) request for production of documents, electronically stored

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information or objects (Fed. R. Civ. P. 45(a)(1)(A)(iii), (C)). (Doc. # 92.) As such, the court

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ordered the Clerk to return the eleven subpoenas to Plaintiff and issue eleven new blank

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subpoenas. The court directed Plaintiff to fill them out, including the full name and address of

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the intended recipients, and to indicate whether he intends to conduct an oral deposition,

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deposition by written questions or seek the production of documents, electronically stored

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information or objects, and return the completed subpoenas to the court within twenty-one days.

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Plaintiff was reminded that if he intends to command the appearance of a witness to testify he

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must submit the required witness fees along with the completed subpoenas. He was given

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additional instructions to comply with the Federal Rules of Civil Procedure.

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On September 3, 2014, Plaintiff filed the instant motion stating: (1) he does not have

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most full names or addresses for the intended subpoena recipients; (2) he cannot pay the witness

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fees to conduct a deposition by written question under Rule 31; (3) he does not know of a way he

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can utilize a request for production of documents to obtain eyewitness accounts of an incident by

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a non-party; (4) the intended subpoena recipients are or were NDOC employees and thought that

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Defendants would depose them because "they're representing NDOC;" (5) he does not have the

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means to pay witness fees, and therefore will not be returning the completed subpoenas within

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the allotted time. (Doc. # 96.)

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First, the court cannot order the United States Marshal to serve a subpoena without the
party providing the intended recipient's full name and address.

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Second, the court acknowledges that Plaintiff, an indigent inmate proceeding in forma

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pauperis, does not have the funds to tender the witness fees to proceed either with an oral

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deposition or deposition by written questions under Rules 30 and 31; however, as the court

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previously advised Plaintiff, the Ninth Circuit has held that while the court may order the service

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of a subpoena by the United States Marshal, the indigent litigant is still responsible for tendering

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the applicable witness fees. See Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993) (citation

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omitted). Plaintiff is permitted to send in the completed subpoenas when he acquires the required

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funds; however, he must do so within the time parameters for the completion of discovery set

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forth in the applicable scheduling order.

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Third, the court has no control over whom the Defendants choose to depose in this case,

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but notes that the Attorney General's Office only represents the defendants who have been named

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in this action, and not all NDOC employees.

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Finally, Plaintiff's document, which has been styled as a motion, seeks no specified relief;
therefore, it is DENIED.
September 17, 2014.
__________________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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