Opinion
1:16-cv-0586-CDB (PC)
07-21-2023
ABEL P. REYES, Plaintiff, v. M. FLORES, et al., Defendants.
ORDER DIRECTING SERVICE OF SUBPOENAS ON UNINCARCERATED NON-CDCR AFFILIATED WITNESSES BY THE UNITED STATES MARSHAL
SERVICE WITHIN 7 DAYS
Plaintiff Abel P. Reyes is a state prisoner, proceeding with counsel, in this civil rights action pursuant to 42 U.S.C. § 1983. The action proceeds against Defendant M. Flores on a claim of deliberate indifference to serious medical needs in violation of the Eighth Amendment. Trial of the action is scheduled to commence August 2, 2023.
RELEVANT PROCEDURAL BACKGROUND
Plaintiff previously submitted the required fees made payable to eleven witnesses being commanded to appear at the trial. (See 8/27/2019 docket entry.) The Court issued its order concerning service on October 16, 2019. (Doc. 106.) On November 19, 2019, the United States Marshal filed notice that service of subpoenas for trial could not be affected on Jaber Noor, M.D. or Perkin Hugh, M.D. (Doc. 115.) On December 2, 2019, the Court issued its Order Directing Clerk of Court to Return Witness Fees for Jaber Noor and Perkin Hugh. (Doc. 122; see also 12/2/2019 docket entry [staff note: “MO#26053343291 for $166.44, made out to Jaber Noor, M.D. and MO#26053343302 for $174.56, made out to Perkin Hugh, M.D.” returned to Ortense P. Reyes].)
The Court issued its Order Appointing Counsel and Setting New Telephonic Trial Confirmation Hearing and Trial Dates this same date. (Doc. 114.)
Witness fees for B. Whitfield, G. Andrade, T. Macias, Officer Alford, E. Cortez, J. Kim M.D., A. Horan M.D., M. Campbell, and A. Snyder, M.D. were previously provided at the time of prior service of subpoenas. (See Docs. 107 [Horan, Whitfield, Andrade, Cortez, Alford], 109 [Kim], 116 [Macias], 117 [Campbell] & 118 [Snyder].)
On July 20, 2023, the Court directed the parties to undertake a reasonable investigation and to submit to the Court via email the address information for five non-CDCR affiliated witnesses identified during the pretrial conference, to wit: Anthony H. Horan, M.D., Noor Jaber, M.D., Alissa K. Snyder, M.D., Hugh Perkin, M.D. and Michelle Campbell, R.N. (Doc. 182 [Minute Order].) As directed, the parties subsequently advised the Court as follows:
1. Defense counsel was unable to reach Dr. Horan as it appears Dr. Horan passed away in August 2020;
2. Defense counsel was unable to reach Dr. Jaber as it appears he relocated to Texas. A new address of 7600 Beechnut St., Houston TX 77074 was provided;
3. Defense counsel as unable to reach Dr. Snyder; however, a new address of 420 34th St., Bakersfield, CA 93301 was provided;
4. Defense counsel was unable to reach Dr. Perkin; however, a new address of 35 Casa St., Ste. 370, San Luis Obispo, CA 93405 was provided; and
5. Defense counsel was unable to identify any updated contact information for Nurse Campbell.
DISCUSSION AND ORDER
Because the previously submitted witness fees pertaining to Drs. Jaber and Perkin were returned to Plaintiff pursuant to the Court's December 2, 2019 order (Doc. 122), and Plaintiff did not resubmit witness fees pertaining to Drs. Jaber and Perkin following issuance of this Court's Second Amended Scheduling Order and Order Continuing Pretrial Conference and Setting Deadlines (see Doc. 162 at 4-5) on January 26, 2023, service of trial subpoenas will not be ordered for these witnesses at this time. Further, while Plaintiff previously submitted witness fees pertaining to Dr. Horan, the doctor is apparently now deceased. Therefore, no further efforts concerning Dr. Horan's appearance at trial will be undertaken by the Court.
Accordingly, the Court ORDERS that:
1. The Clerk of the Court is directed to forward the following documents to the United States Marshal:
a. Two completed and issued subpoenas to be served on the following individuals and for the following dates:
FOR APPEARANCE ON AUGUST 2, 2023
Michelle Campbell, Registered Nurse
Delano Regional Medical Hospital
1401 Garces Highway
Delano, California 93215
Alissa K. Snyder, M.D.
Dignity Health/Bakersfield Memorial Hospital 420 34th Street
Bakersfield, California 93301
b. Two completed USM-285 forms;
i. Witness Fees were previously provided to Michelle Campbell, in the amount of $130.48 (26053343278), when Campbell was previously served with a subpoena on November 19, 2019 (see Doc. 117); Witness Fees were previously provided to Alissa Snyder, in the amount of $166.44 (26053343280), when Snyder was previously served with a subpoena on October 30, 2019 (see Doc. 118);
c. Three copies of this order, one to accompany each subpoena, plus an extra copy for the Marshal.
2. Within 7 days of the date of service of this order, the United States Marshal is directed to serve the subpoenas on all witnesses named above in accordance with Rule 45 of the Federal Rules of Civil Procedure. In addition, the United States
Marshall shall serve each money order listed above on each corresponding witness, unless the Marshall has already served same on the witness.
3. The United States Marshal shall effect personal service and a copy of this order upon each individual named in each subpoena pursuant to Rule 45 of the Federal Rules of Civil Procedure and 28 U.S.C. § 566(c).
4. Within 10 days after personal service is completed, the United States Marshal shall file returns of service, along with the costs subsequently incurred in effecting service. Said costs shall be enumerated on the USM-285 forms.
IT IS SO ORDERED.