Fernandez v. State of North Dakota

Filing 108

ORDER by Magistrate Judge Charles S. Miller, Jr. denying without prejudice plaintiff's 96 Motion for Court to Issue an Serve Subpoena Duces Tecum. (BG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHWESTERN DIVISION
Kevin Fernandez,
Plaintiff,
vs.
State of North Dakota, et. al.,
Defendants.

I.

)
)
)
)
)
)
)
)
)

ORDER

Case No. 1:12-cv-161

BACKGROUND
The plaintiff, Kevin Fernandez (“Fernandez”), is presently in the custody of the Nevada

Department of Corrections. He was transferred from Nevada to the North Dakota State Penitentiary
in May 2011 for long-term custodial housing pursuant to an agreement struck between the states of
Nevada and North Dakota. He was transferred back to Nevada in September 2011.
Fernandez initiated the above entitled action in November 2012, asserting, amongst other
things, that defendants had denied him his right to procedural due process, to wit:
39. On September 14, 2011, the Defendants Bertsch, Schmalenberger, Conway,
Branson, and Fister did order, and had Plaintiff transferred to Nevada without
providing Plaintiff any due process protections prior to transferring Plaintiff back to
Nevada.
40. Plaintiff has a protected liberty interest in not being transferred back to Nevada
and to remain in North Dakota created by the Settlement Agreement in Fernandez
v. Nevada, 3:06-cv-628-LRH-RAM (D. Nev. 2006), and enforced through the
Interstate Corrections Compact against North Dakota and Defendants, and protected
by the Fourteenth Amendment.
41. The transferring of Plaintiff to Nevada and deprivation of his liberty interest
without due process is an atypical and significant deprivation or hardship on Plaintiff
in relation to the ordinary incidents of prison life.
42. Plaintiff was entitled to advanced written notice, a prior hearing in which
Plaintiff could present evidence, witnesses, and cross-examination of witnesses, an
independent decision maker, a decision based upon some evidence, and a written
1

decision of the reason for and evidence relied upon.
43. Plaintiff was afforded none of these due process protections prior to being
transferred back to Nevada, in violation of his Fourteenth Amendment procedural
due process rights.
(Docket No. 9) (errors in original).
On October 29, 2013, Fernandez filed a “Motion for Court to Issue and Serve Subpoena
Duces Tecum.” He asks that subpoenas duces tecum be issued for the following non-parties, all of
whom reside outside of this district: James Cox, Director of Nevada’s Department of Corrections,
Catherine Cortez Masto, Nevada’s Attorney General, and Judy Matteucci, Clerk for the Board of
Examiner. He seeks production of a verified copy of the aforementioned long-term custodial
housing agreement between Nevada and North Dakota along with any and all documentation
pertaining to the formulation of and Nevada's reliance on this agreement.
II.

DISCUSSION
Pursuant to Federal Rule of Civil Procedure 45(a)(2)(c), a subpoena may direct a non-party

to an action to produce documents or other tangible objects for inspection. The issuance of a
subpoena duces tecum is subject to limitations, however.
“The Court has the ‘discretionary power to refuse to subpoena witnesses and to prevent
abuse of its process in both civil and criminal proceedings.’” Stockdale v. Stockdale, Case No. ,
2009 WL 4030758 at *1 (E.D. Mo. Nov. 18, 2009) (quoting Manning v. Lockhart, 623 F.2d 536,
539 (8th Cir.1980) (per curiam)); Jackson v. Brinker, No. IP 91–471–C, 1992 WL 404537 at * 7
(S.D. Ind. 1992) (opining that courts have the “ inherent and statutory power to supervise an in
forma pauperis party's litigation to the end of preventing abuse of the court's process and the
privileges granted him under § 1915, and that this authority extends to screening an indigent party's
requests for issuance and service of subpoena duces tecum on non-parties.”). “This power should
2

be exercised to protect the resources of the Court and the Marshals Service, and to prevent
harassment and undue expense of other parties and non-parties.” Stockdale v. Stockdale, 2009 WL
4030758 at *1; see also Heilman v. Lyons, No., 2010 WL 5168871 at *1 (E.D. Cal. Dec. 13, 2010)
(“Proper reliance on a subpoena duces tecum is limited by the relevance standards set forth in
Federal Rule of Civil Procedure 26(b)(1) . . . and considerations of burden and expense set forth in
Federal Rules of Civil Procedure 26(b)(2) and 45(c)(1).”).
The issuance of subpoenas to a prisoner raises two concerns: (1) the possibility that the
prisoner may abuse of the court’s subpoena power; and (2) the viability of subpoenas as a tool for
evidence collection given the prisoner’s custodial status. Thus, before the court the will authorize
the issuance of subpoenas to a prisoner, it typically requires that the prisoner first provide some or
all of the following information: (1) the name and address of the person (or entity) to whom each
subpoena will be directed; (2) the purpose for each subpoena; (3) the prisoner’s wherewithal to
conduct any proceeding for which the subpoenas might be issued; (4) the prisoner’s ability to tender
any witness and other fees that may be required for the subpoenas; and (5) if other means of
discovery are available, a demonstration by the prisoner that these other means are neither practical
nor likely to result in the production of the needed information. See e.g., Alexander v. Cal. Dept.
of Corr., No. 2:08-cv-2773, 2010 WL 4069953 at *2 (E.D. Cal. Oct. 18, 2010) (addressing the
limitations to which a subpoena duces tecum for a non-party is subject); see also Fed. R. Civ. P.
26(b)(2)(C) (empowering the court, on its own motion, to restrict discovery).
At first blush it would appear that Fernandez has other means of obtaining the information
he seeks. It would stand to reason that defendants would be in a position to provide information

3

pertaining to the arrangement between North Dakota and Nevada to house Fernandez at the NDSP.1
Consequently, the court is not inclined to order the issuance of the subpoena duces tecum directing
the production of documents from non-parties.
III.

CONCLUSION
Fernandez’s “Motion for Court to Issue and Serve Subpoena Duces Tecum” (Docket No. 96)

is DENIED without prejudice.
Dated this 18th day of December, 2013.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court

1

An argument could be made that arrangements between North Dakota and Nevada to house Fernandez at the
NDSP may have some relevance or could otherwise lead to the discovery of relevant information. Cf. Wright v.
Enomoto, 462 F.Supp. 397 (D.C. Cal. 1976) (citing Meachum v. Fano, 427 U.S. 215, 226 (1976), for the proposition
that “if the state itself imposes limits on its discretion by conditioning decisions such as prison transfers on a specific
standard being met, the state creates a liberty interest which is protected by due process.”); Reece v. Tucker, No. 91 C
6014 , 1992 WL 86064, at *2 (N.D. Ill. April 22, 1992) (opining that it is “equally well-established that state statutes,
practices, or duly promulgated prison regulations may create liberty interests deserving of procedural protections of the
Due Process Clause” (internal quotations omitted)); but see Ghana v. Pearce, 159 F.3d 1206, 1209 (9th Cir.1998)
(concluding that the Interstate Corrections Compact (ICC) “ Compact does not create a liberty interest protected by the
Fourteenth Amendment” and an alleged violation of the ICC “cannot be basis for section 1983 action”). The court need
not address the merits of any such argument at this time, however.

4