Neisler v. Larson et al

Filing 43

ORDER signed by Judge Pamela Pepper on 2/1/2016 DENYING WITHOUT PREJUDICE 42 Motion for Contempt; DENYING WITHOUT PREJUDICE 42 Motion for Sanctions, GRANTING 42 Plaintiff's Motion for Order Directing Compliance with Subpoena, and ORDERING Aljan President Alan C. Burke to Respond to Subpoena on or Before March 4, 2016. (cc: all counsel and copy sent by US Mail to President of Aljan Company on February 1, 2016.) (kgw)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
MATHEW NEISLER,
Plaintiff,
v.

Case No. 14-cv-655-pp

DONNA LARSON and
BELINDA SCHRUBBE,
Defendants.
______________________________________________________________________________
ORDER DENYING PLAINTIFF’S MOTION FOR CONTEMPT AND SANCTIONS
(DKT. NO. 42), GRANTING PLAINTIFF’S MOTION FOR ORDER DIRECTING
COMPLIANCE WITH SUPBOENA (DKT. NO. 42), AND ORDERING ALJAN
PRESIDENT ALAN C. BURKE TO RESPOND TO SUBPONEA ON OR BEFORE
MARCH 4, 2016
______________________________________________________________________________
The pro se plaintiff, Mathew Neisler, is a Wisconsin state prisoner. He
alleges that the defendants, Waupun Correctional Institution Nurses Donna
Larson and Belinda Schrubbe, acted with deliberate indifference to his serious
medical need in violation of the Eighth Amendment to the United States
Constitution. Dkt. No. 5. On September 2, 2015, the court stayed this case so
that the plaintiff could obtain his medical records from non-party Aljan
Company because the plaintiff could not fully respond to the defendants’
motion for summary judgment without the records. Dkt. No. 37. The court also

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provided the plaintiff with a subpoena form, so that he could serve Aljan
Company with the subpoena.1
On December 30, 2015, the plaintiff filed the motion that is now before
the court—a motion asking the court to hold Aljan president Alan R. Burke in
contempt, requiring Burke to comply with the subpoena, and to order
monetary sanctions based on Aljan Company President Alan R. Burke’s failure
to respond to the subpoena the plaintiff served on him. Dkt. No. 42. The
plaintiff asserts that he put a deadline of December 12, 2015 in the subpoena
as the date by which Aljan had to comply, and that Aljan Company had not
responded to the subpoena as of December 29, 2015. Id. at 2. With regard to
monetary sanctions, the plaintiff asks the court to impose a sanction of
$250.00, with an additional penalty of $25.00 per day for each additional day
of non-compliance after the court’s order. Id.
The court may hold in a person in contempt when, having been served,
that person fail—without adequate excuse—to obey a subpoena or an order
related to it. Fed. R. Civ. P. 45(g). The plaintiff has filed documentation showing
that on November 18, 2015, he mailed the subpoena to Mr. Burke, Dkt. No. 421, requesting:
Emails, phone logs, and correspondence between Aljan Co. and
Waupun Correctional Institution regarding Mathew Neisler. The
Medical file of Mathew Neisler as maintained at Ajlan Co., and the
completed questionnaire which is attached to this subpoena.
Dkt. No. 41-1.

 On September 2, 2015, the court inadvertently mailed the plaintiff the wrong
subpoena form. On November 12, 2015, the court mailed the plaintiff the
correct subpoena form. 
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“Serving a subpoena requires delivering a copy to the named person[.]”
Fed. R. Civ. P. 45(b)(1). Personal service is not required, and service via
certified mail is sufficient. See Ott v. City of Milwaukee, 682 F.3d 552, 557 (7th
Cir. 2012); see also Stepp v. Rexnord Industries, Inc., 2014 WL 3866135, *2
(S.D. Ind. 2014) (adding that “courts within the Seventh Circuit must
themselves determine if the method” of service satisfies Rule 45); Jennings v.
Moreland, 2012 WL 761360, *1 (E.D. Cal. 2012) (reading “delivering” to cover
prisoner placing subpoena in outgoing mail in addition to personal service
when subpoenaed person receives fair notice); Green v. Baca, 2005 WL
283361, at *1, n.1 (C.D. Cal. 2005) (finding that service of subpoenas pursuant
to the delivery procedures under Rule 5(b) was sufficient service under Rule
45).
The court will not hold Mr. Burke in contempt of court or impose
sanctions at this time. See U.S. S.E.C. v. Hyatt, 621 F.3d 687, 694 (7th Cir.
2010) (citing 9A Charles A. Wright & Arthur R. Miller, Federal Practice and
Procedure § 2465 (3d ed. 2008) (“The district judge normally will preface a
contempt citation with an order directing either compliance with the subpoena
or a showing of an excuse for the noncompliance.”). Instead, the court will
order Mr. Burke to respond to the subpoena on or before March 4, 2016. If Mr.
Burke does not timely respond to the subpoena, the plaintiff may refile his
motion for contempt and sanctions.
The court DENIES WITHOUT PREJUDICE plaintiff’s motion for
contempt and sanctions. (Dkt No. 42)
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The court GRANTS plaintiff’s motion for order directing Aljan Company
President Alan Burke to respond to the plaintiff’s subpoena. (Dkt No. 42)
The court ORDERS that, on or before March 4, 2016, Aljan Company
President Alan C. Burke shall respond to the subpoena the plaintiff mailed to
him on November 18, 2015.
The court will mail a copy of this order and the case docket sheet to:
President Alan R. Burke, Aljan Company, 2008 Fish Hatchery Road, Madison,
Wisconsin, 53713.
Dated in Milwaukee, Wisconsin this 1st day of February, 2016.

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