VOGT v. WETZEL et al

Filing 56

ORDER denying 54 Motion Enforce a Subpoena or Issue Subpoena and Order Service by U.S. Marshal. Signed by Magistrate Judge Maureen P. Kelly on 3/8/22. (ndf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
STEVEN VOGT,
Plaintiff,
v.
JOHN WETZEL, Secretary of the Department
of Corrections (Official & Individual
Capacity) and JOHN/JANE DOE, Mailroom
Employee at S.C.I. Fayette (Official &
Individual Capacity),
Defendants.

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Civil Action No. 17-1407
District Judge Arthur J. Schwab
Magistrate Judge Maureen P. Kelly
Re: ECF No. 54

MEMORANDUM ORDER
Presently before the Court is Plaintiff Steven Vogt’s (“Vogt”) “Motion to Enforce a
Subpoena Served Upon PA State Police or Issue Subpoena and Order Service by U.S. Marshal.”
ECF No. 54. For the following reasons, Vogt’s motion is denied.
Vogt asserts that on February 10, 2022, he served a subpoena by registered mail upon the
Pennsylvania State Police (“PSP”), a third party, to produce all investigation records and files
related to his conviction for murder committed in 1990. Id., and see, ECF No. 54-1 at 1 (Subpoena
to Produce Documents).The PSP declined to comply because the subpoena was not personally
served as required by Rule 45(b) of the Federal Rules of Civil Procedure, as enforced in this
jurisdiction. ECF No. 54-1 at 5. Vogt argues that mail delivery is sufficient and thus seeks an order
compelling the PSP to comply with the subpoena. Alternatively, Vogt seeks an order requiring
service by the United States Marshal (“U.S. Marshal”) because he is incarcerated, and he cannot
independently serve a subpoena. Id. Vogt does not suggest whether he sought to retain the services
of a private server but states he is “happy” to pay for service by the U.S. Marshal. Id.
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On the record presented, the Court will not exercise its discretion to compel compliance
with a subpoena that is overbroad and unduly burdensome, nor will it order the U.S. Marshal to
effectuate service on his behalf. Plaintiff’s request to permit service of a subpoena by certified mail
is also denied.
I.

DISCUSSION
A. Permissible Scope of Discovery
Rule 45 of the Federal Rules of Civil Procedure establishes the rules for discovery
directed to individuals and entities that are not parties to the underlying lawsuit.
Fed. R. Civ. P. 45. A subpoena under Rule 45 ‘must fall within the scope of proper
discovery under Fed. R. Civ. P. 26(b)(1)’ OMS Invs., Inc. v. Lebanon Seaboard
Corp., No. 08–2681, 2008 WL 4952445, at *2 (D.N.J. Nov. 18, 2008).” First
Sealord Sur. v. Durkin & Devries Ins. Agency, 918 F. Supp. 2d 362, 382 (E.D. Pa.
2013). Rule 45 also confers broad enforcement powers upon the court to ensure
compliance with subpoenas, while avoiding unfair prejudice to persons who are the
subject of a subpoena’s commands. In this regard, it is well settled that decisions
on matters pertaining to subpoena compliance rest in the sound discretion of the
trial court and will not be disturbed absent a showing of an abuse of that discretion.
R.J. Reynolds Tobacco v. Philip Morris Inc., 29 Fed. Appx. 880, 881 (3d Cir. 2002).
This far-reaching discretion extends to decisions regarding whether to enforce
compliance with subpoenas, where “‘[i]t is well-established that the scope and
conduct of discovery are within the sound discretion of the trial court.’ Guinan v.
A.I. duPont Hosp. for Children, No. 08–228, 2008 WL 938874, at *1 (E.D. Pa. Apr.
7, 2008) (quoting Marroquin–Manriquez v. INS, 699 F.2d 129, 134 (3d Cir.
1983)).” Coleman-Hill v. Governor Mifflin School Dist., 271 F.R.D. 549, 552 (E.D.
Pa. 2010).

Audi of Am., Inc. v. Bronsberg & Hughes Pontiac, Inc., No. 3:16-CV-2470, 2017 WL 2212505,
at *1 (M.D. Pa. May 17, 2017).
In determining the propriety of the discovery that Plaintiff seeks to compel, the Court is
mindful that under Rule 26, “[p]arties may obtain discovery regarding any nonprivileged matter
that is relevant to any party’s claim or defense and proportional to the needs of the case.” Fed. R.
Civ. P. 26(b)(1). “Relevance in this context has been ‘construed broadly to encompass any matter
that could bear on, or that could reasonably lead to other matter that could bear on, any issue that

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is or may be in the case.’” United States ex rel. Bergman v. Abbott Labs., No. 09-4264, 2016 WL
4247429, at *2 (E.D. Pa. Aug. 11, 2016) (quoting Oppenheimer Funds v. Sanders, 437 U.S. 340,
351 (1978)). While the scope of discovery is broad, it is not unlimited. See Bayer AG v. Betachem,
Inc., 173 F.3d 188, 191 (3d Cir. 1999). Discovery should not serve as a fishing expedition. Upshaw
v. Janssen Research & Development, LLC, No. 11-7574, 2014 WL 1244047, at * 3 (E.D. Pa. Mar.
26, 2014).
The instant case presents discrete claims against John Wetzel, Secretary of the
Pennsylvania Department of Corrections (“DOC”), and an unidentified mailroom employee
arising from DOC’S policy to refuse mail addressed to a prisoner that lacks a return address,
without notice to the recipient. Vogt v. Wetzel, 8 F.4th 182, 184 (3d Cir. 2021). Vogt asserts that
because of this policy, a letter dated October 23, 2016 that purportedly contained a recantation of
testimony implicating Vogt in a 1990 murder, was delayed by six months. ECF No. 3; see also,
Vogt v. Coleman, No. CV 08-530, 2021 WL 5040424, at *2 (W.D. Pa. Oct. 29, 2021) (setting
forth procedural history of criminal conviction and Vogt’s various petitions for post-conviction
relief). Vogt claims that because he did not receive notice that the letter was refused, he could not
arrange alternative delivery, and thus failed to timely appeal his conviction based on newly
discovered evidence. Id. Vogt alleges that the DOC policy violated his constitutionally protected
liberty interest in the receipt of mail, and his right to access to courts. See Procunier v. Martinez,
416 U.S. 396, 418 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401
(1989) (“The interest of prisoners and their correspondents in uncensored communication by letter,
grounded as it is in the First Amendment, is plainly a ‘liberty’ interest within the meaning of the
Fourteenth Amendment even though qualified of necessity by the circumstance of imprisonment.
As such, it is protected from arbitrary governmental invasion.”).

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Despite the limited parameters of this civil rights action, Vogt mailed a subpoena to the
PSP – a party with no connection whatsoever to this case – requesting a copy of “[a]ll investigation
files and records related to the 1990 murder of Francis Landry in Butler County, PA.” ECF No.
54-1. Beyond a stray reference to “damages,” Vogt does not connect the underlying 1990 PSP
investigation to his claim here that, again, concerns the belated receipt of a letter dated October
23, 2016. 1 Vogt presents no basis for the Court to conclude that the requested documents bear on,
or could reasonably lead to other material that bear on, any issue that is or may be at issue in the
case. Thus, the Court will not exercise its discretion in this instance to compel production in
compliance to an overbroad subpoena that seeks information with no apparent relevance to the
liberty and access to court claims at issue.
2.

Service by the U.S. Marshal

This Court granted Plaintiff’s petition to proceed in forma pauperis, and pursuant to 28
U.S.C. § 1915(b)(1), permitted Plaintiff’s Complaint to be filed without prepayment of fees. ECF
No. 2. However, “[t]here is no provision in the statute for the payment by the government of the
costs of deposition transcripts, or any other litigation expenses, and no other statute authorizes
courts to commit federal monies for payment of the necessary expenses in a civil suit brought by
an indigent litigant.” Tabron v. Grace, 6 F.3d 147, 159 (3d Cir. 1993); see also, Porter v. Dep’t of
Treasury, 564 F.3d 176, 180 (3d Cir. 2009)(“We note that the granting of IFP status exempts
litigants from filing fees only. It does not exempt litigants from the costs of copying and filing
documents; service of documents other than the complaint; costs, 28 U.S.C. § 1915(f)(1); expert
On March 28, 2018, the Pennsylvania Superior Court remanded Vogt’s most recent state court action for postconviction relief to consider the timeliness of his petition based on the letter at issue and, if timely, whether the alleged
recantation warrants relief under Pennsylvania’s PCRA statute. Commonwealth v. Vogt, No. 1010 WDA 2017, 2018
WL 1516372, at *3 (Pa. Super. Ct. Mar. 28, 2018). The trial court dismissed the PCRA petition on September 29,
2021, and an appeal of the trial court’s order is pending before the Superior Court. See Commonwealth of
Pennsylvania v. Vogt, No. 1186 WDA 2021. Thus, any delay in receipt does not appear to have hindered his attempt
to seek relief based on the contents of the alleged recantation.
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witness fees, Boring v. Kozakiewicz, 833 F.2d 468 (3d Cir.1987); or sanctions.)(italics added)).
Thus, the Court will not require service by the U.S. Marshal at government expense.
3.

Requirement for Personal Service

Rule 45 is generally construed to require personal service. 2 Smith v. Club Exploria LLC,
No. 3:20-CV-00580, 2021 WL 4375907, at *2 (M.D. Pa. Sept. 24, 2021) (collecting cases). “The
Court recognizes that some courts have held that delivering a subpoena by certified mail may
satisfy the service requirements of Rule 45.” Farley-Skinner v. Adventure Aquarium, LLC, No.
1:17-CV-04797, 2018 WL 3647209, at *2 (D.N.J. Aug. 1, 2018) (citing New Jersey Building
Laborers Statewide Ben. Funds and Trustees Thereof v. Torchio Brothers, Inc., Civ. No. 08-552,
2009 WL 368364, at *2 (D.N.J. Feb. 11, 2009)). “However, courts have found that approach to
represent the minority view.” Farley-Skinner, 2018 WL 3647209, at *2 (citing Alfamodes
Logistics Ltd. Liability Co. v. Catalent Pharma Solutions, Inc., 2011 WL 1542709, at *1 (E.D. Pa.
April 25 2011) (describing acceptance of certified mail as “a minority-held position among the
federal courts”); Ricoh Co. v. Oki Data Corp., No. 09-694, 2011 WL 3563142, at *4 (D. Del. Aug.
15, 2011) (noting “the majority rule of personal service as the required mode of proper service”)).
In this case, given the apparent absence of prior notice of the subpoena as required by Rule
45(a)(4), an overbroad request for discovery with no apparent relation to this action, and no
documentation regarding Plaintiff’s inability to locate and retain a private server, the Court finds
no circumstances to warrant departure from the requirement for personal service.

Rule 45(b)(1) provides “Any person who is at least 18 years old and not a party may serve a subpoena. Serving a
subpoena requires delivering a copy to the named person and, if the subpoena requires that person’s attendance,
tendering the fees for 1 day's attendance and the mileage allowed by law. Fees and mileage need not be tendered
when the subpoena issues on behalf of the United States or any of its officers or agencies.”

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Accordingly, “Plaintiff’s Motion to Enforce a Subpoena Served Upon PA State Police or
Issue Subpoena and Order Service by U.S. Marshal” is denied.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Rule 72.C.2 of
the Local Rules of Court, the parties are allowed fourteen (14) days from the date of this Order to
file an appeal to the District Judge which includes the basis for objection to this Order. Any appeal
is to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110,
Pittsburgh, PA 15219. Failure to file a timely appeal will constitute a waiver of any appellate rights.
Dated: March 8, 2022

BY THE COURT:

/s/ Maureen P. Kelly

MAUREEN P. KELLY
UNITED STATES MAGISTRATE JUDGE

cc:

The Honorable Arthur J. Schwab
United States District Judge
All counsel of record via CM/ECF
Steven Vogt
BN-3436
S.C.I. Fayette
48 Overlook Drive
LaBelle, PA 15450

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