Opinion
Case No.: 14cv1412-JLS-MDD
07-12-2016
THOMAS JOHN HEILMAN, Plaintiff, v. COOK, et al., Defendants.
ORDER GRANTING PLAINTIFF'S MOTION FOR DELAYED PAYMENT OF SERVICE FEES FOR SUBPOENA DUCES TECUM ON NON-PARTY BY U.S. MARSHAL'S OFFICE
[ECF No. 80]
Plaintiff, a state prisoner proceeding pro se and in forma pauperis, with a civil complaint filed pursuant to 42 U.S.C. § 1983, has filed a motion for the U.S. Marshal to serve a subpoena duces tecum on non-party "D. Paramo," the Warden of California Department of Corrections at R.J. Donovan Correctional Facility ("CDCR-Donovan") without prepayment of costs. (ECF No. 80). Plaintiff explains he has attempted to obtain the information informally to no avail. He asserts that the materials sought are relevant and readily available to the subpoenaed party, and includes a list of the documents requested. It appears the proposed subpoena is a documents-only subpoena not requiring the respondent to submit to a deposition, and therefore not requiring witness fees.
In his motion, Plaintiff relies on Brown v. De Filippis, 125 F.R.D. 83, 84-85 (S.D.N.Y. 1989), for the proposition that courts have discretion to order service of document subpoenas by the U.S. Marshal without prepayment of costs. (ECF No. 80 at 6). In a similar motion Plaintiff filed in Case No. 13cv2984-JLS-MDD, Plaintiff cited similar case law and explained that judges in other cases he has litigated in the Eastern District of California have held that although "[t]he court lacks power to waive plaintiff's obligation to pay the fee for service of the subpoena," § 1915 permits the court to delay payment of the service costs until further order of the court. 28 U.S.C. §1915; Tedder v. Odel, 890 F.2d 210, 211-212 (9th Cir. 1989); Brown, 125 F.R.D. at 84-85 (13cv2984-JLS-MDD ECF No. 90 at 10-11). Plaintiff is seeking the same relief (delayed payment, not waiver) here.
Good cause appearing, this Court GRANTS Plaintiff's request that the U.S. Marshal's Office be directed to serve the documents-only subpoena on Warden Paramo of CDCR-Donovan without full prepayment of costs.
The U.S. Marshal's Office is ORDERED to serve the document subpoena Plaintiff attached in support of his motion. (ECF No. 80 at 7-9). The costs shall be collected and forwarded to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).
The institution having custody of Plaintiff, currently California Mens Colony, is ORDERED to collect payments, assessed at 20% of the preceding month's income, in any month in which Plaintiff's account exceeds $10, and forward those payments to the Court until the costs are paid in full. See 28 U.S.C. § 1915(b)(2).
Plaintiff is ORDERED to serve this Order on any subsequent institution if he is transferred before the costs are paid in full.
IT IS SO ORDERED. Dated: July 12, 2016
/s/_________
Hon. Mitchell D. Dembin
United States Magistrate Judge