Toliver v. Clackamas County Jail et al
Filing
37
ORDER: IT IS ORDERED as follows: The Clerk of the Court is DIRECTED to forward to plaintiff with this order three summonses and U.S. Marshal Instruction forms. Plaintiffs "Motion to Have Court Investigator Take Photographs in Clackamas County Jail Q Block Shower Area" (ECF No. 3 ) is DENIED. Plaintiffs Motion to Subpoena Medical Records (ECF No. 30 ) is DENIED. Plaintiffs Motion to Amend (ECF No. 36 ) is GRANTED, and Defendant Clackamas County Jail's Motions to Dism iss (ECF Nos. 20 and 33 ) are found MOOT. Plaintiff shall have until June 22, 2017, to file his amended complaint. Plaintiffs "Motion to Go to Trial" (ECF No. 34 ) is DENIED. Signed on 5/23/2017 by Magistrate Judge Paul Papak. (copy of order and forms mailed to plaintiff) (kms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DERRICK TOLIVER,
Case No. 3:16-cv-02034-PK
Plaintiff,
ORDER
v.
CLACKAMAS COUNTY JAIL;
CORIZON HEALTH; SHARRON BRENNAN;
and MANDY,
Defendants.
PAP AK, Magistrate Judge.
Plaintiff, an inmate at the Snake River Correctional Institution, brings this civil rights action
pursuant to 42 U.S.C. § 1983 prose. Currently before the court are several matters.
I.
Service of Process on Defendants Corizon Health, Sharron Brennan, and Mandy
On December 22, 2016, this court issued a Notice of Lawsuit and Request for Waiver of
Service to Clackamas County Counsel. Counsel returned the Waiver accepting service of process
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on behalf of Defendant Clackamas County Jail, but declining to waive service on behalf of
Defendants Corizon Health, Sharron Brennan, and Mandy.
Accordingly, the Clerk of the Court is DIRECTED to forward to plaintiff with this order
three summonses and U.S. Marshal Instruction forms. Plaintiff shall complete the summonses and
instruction forms for Defendants Corizon Health, Sharron Brennan, and Mandy, and return them to
the Clerk of the Court. An original plus two copies of a summons must be returned for each named
defendant.
Upon receipt of the completed summonses and instruction forms by the court, IT IS
ORDERED that the Clerk shall issue process as to Defendants Corizon Health, Sharron Brennan,
and Mandy. Service of the summons and complaint shall be made by the United States Marshal's
Service.
II.
Plaintifrs "Motion to Have Court Investigator Take Photographs in Clackamas
County Jail Q Block Shower Area" (ECF No. 3)
Plaintiff seeks an order to have a "court investigator" take photographs of the Clackamas
County Jail shower area which Plaintiff alleges caused Plaintiff to suffer from asthma during his
incarceration at the Jail. Plaintiff does not, however, provide any authority for the expenditure of
court funds or the employment of a "court investigator" to undertake the action sought. To the extent
Plaintiffs motion may be construed as a request for a court-appointed expert witness pursuant to
federal Rules of Evidence Rule 706, the court finds such a request is not warranted at this stage of
the proceedings. Accordingly, Plaintiffs motion (ECF No. 3) is DENIED.
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III.
Plaintiffs Motion to Subpoena Medical Records (ECF No. 30).
Plaintiff seeks to subpoena his medical records in the custody of the Snake River
Correctional Institution and the "Justice Center County Jail." To the extent the request is for medical
records maintained by Clackamas County, Plaintiffs request is denied on the basis that he may
obtain such records through discovery requests to Defendants pursuant to the Federal Rules of Civil
Procedure.
To the extent Plaintiff seeks to subpoena medical records maintained by the Oregon
Department of Corrections, the court's authorization of a subpoena duces tecum requested by an in
forma pauperis plaintiff is subject to limitations. Because personal service of a subpoena duces
tecum is required pursuant to Fed. R. Civ. P. 45(b), "[d]irecting the Marshal's Office to expend its
resources personally serving a subpoena is not taken lightly by the court," Austin v. Winett, 2008
WL 5213414, *l (E.D. Cal. 2008); 28 U.S.C. § 1915(d). Limitations include the relevance of the
information sought as well as the burden and expense to the non-party in providing the requested
information. Fed. R. Civ. P. 26, 45. A motion for issuance of a subpoena duces tecum should be
supported by clear identification of the documents sought and a showing that the records are
obtainable only through the identified third party. See, e.g., Davis v. Ramen, 2010 WL 1948560, *l
(E.D. Cal. 2010); Williams v. Adams, 2010 WL 148703, *1 (E.D. Cal. 2010). The "Federal Rules
of Civil Procedure were not intended to burden a non-party with a duty to suffer excessive or unusual
expenses in order to comply with a subpoena duces tecum." Badman v. Stark, 13 9 F .R.D. 601, 605
(M.D. Pa.1991).
Non-parties are "entitled to have the benefit of this Court's vigilance" in
considering these factors. Id.
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Plaintiff has not specified what efforts he has undertaken, if any, to obtain copies of his
medical records from the Oregon Department of Corrections. Instead, he simply states he "must pay
a fee & also be out of jail." (ECF No. 30, p. 2). As such, plaintiff fails to show that he has attempted
to obtain copies of his medical records by making a request directly to the Oregon Department of
Corrections. Accordingly, plaintiffs request for a subpoena duces tecum is DENIED, without
prejudice to his right to renew the motion upon a showing that his medical records are not otherwise
obtainable.
IV.
Defendant Clackamas County Jail's Motions to Dismiss (ECF Nos. 20 and 33) and
Plaintiffs Motion for Leave to Amend (ECF No. 36)
Defendant Clackamas County Jail moves to dismiss Plaintiffs Complaint and Supplement
to Complaint on the basis that the "Clackamas County Jail" is not a legal entity or "person" subject
to suit under 42 U.S.C. § 1983. In response to Defendant's motion, Plaintiff seeks leave of the court
to file an Amended Complaint naming Clackamas County Sheriff Craig Roberts as a Defendant
instead of the Clackamas County Jail.
Plaintiffs motion is GRANTED, and Defendant Clackamas County Jail's Motions to Dismiss
are found MOOT. Plaintiff shall have until June 22, 2017, to file an amended complaint. Plaintiff
is advised that the amended complaint will operate as a complete substitute for the present
complaint, not as a supplement. As such, Plaintiff must re-allege all of his claims against all of the
named Defendants.
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V.
Plaintifrs "Motion to Go to Trial" (ECF No. 34).
Finally, Plaintiff filed a "motion to go to trial" indicating he is ready to "prove his case."
Plaintiffs motion, however, is premature, as discovery has not yet been completed, and dispositive
pretrial motions have not yet been adjudicated. Accordingly, Plaintiffs motion is DENIED.
CONCLUSION
For these reasons, IT IS ORDERED as follows:
1.
The Clerk of the Court is DIRECTED to forward to plaintiff with this order
three summonses and U.S. Marshal Instruction forms.
Plaintiff shall
complete the summonses and instruction forms for Defendants Corizon
Health, Sharron Brennan, and Mandy, and return them to the Clerk of the
Court. Upon receipt of the completed summonses and instruction forms by
the court, IT IS ORDERED that the Clerk shall issue process as to
Defendants Corizon Health, Sharron Brennan, and Mandy. Service of the
summons and complaint shall be made by the United States Marshal's
Service.
2.
Plaintiffs "Motion to Have Court Investigator Take Photographs in Clackamas
County Jail Q Block Shower Area" (ECF No. 3) is DENIED.
3.
Plaintiffs Motion to Subpoena Medical Records (ECF No. 30) is DENIED.
4.
Plaintiffs Motion to Amend (ECF No. 36) is GRANTED, and Defendant
Clackamas County Jail's Motions to Dismiss (ECFNos. 20 and 33) are found
MOOT.
Plaintiff shall have until June 22, 2017, to file his amended
complaint.
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5.
Plaintiffs "Motion to Go to Trial" (ECF No. 34) is DENIED.
IT IS SO ORDERED.
DATED t h i d y of May, 2017
aul Papak
United States Magistrate Judge
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