Opinion
1:19-cv-01027-JLT-BAK (EPG) (PC)
06-06-2022
MICHAEL DE'ANDRAE FLOWERS, Plaintiff, v. TOON, et al., Defendants.
ORDER DIRECTING SERVICE OF SUBPOENA BY THE UNITED STATES MARSHALS SERVICE WITHOUT PREPAYMENT OF COSTS
(ECF NO. 37)
ORDER DIRECTING CLERK TO ATTACH COPY OF SUBPOENA TO THIS ORDER
This action proceeds on an Eighth Amendment medical indifference claims against Defendant Toon and Does 1-3. (ECF Nos. 15, 21.) On September 10, 2021, the Court granted Plaintiff leave to discover the identity of Does 1-3 and file a notice of substitution within ninety days. (ECF No. 23.) The Court granted Plaintiff leave to issue subpoenas to identify Does 1-3 and directed the Clerk of Court to send subpoena forms to Plaintiff. (ECF Nos. 23, 37.)
On December 14, 2021, the Court entered an order referring the case to post-screening ADR and staying the case for ninety days, or until March 14, 2022. (ECF No. 31.) Upon motion by Plaintiff, the Court granted Plaintiff an extension of time to serve unidentified defendants and ordered Plaintiff to file a notice of substitution by June 24, 2022. (ECF No. 37.) The Court noted: “Because the case is stayed, the Court will not act on a motion for service of the subpoenas until the stay is lifted.” (Id. at 2 n.3.)
This matter was scheduled for a settlement conference on May 26, 2022. (ECF No. 41.) However, after reviewing the Defendant's confidential settlement conference statement, (ECF No. 46), on May 25, 2022, the Court cancelled the settlement conference. (ECF Nos. 47, 49.) On the same day, the Court ordered the parties to file scheduling and discovery statements within thirty days. (ECF No. 48.)
Plaintiff did not file a motion for service of the subpoenas. Instead, he sent a letter to the Clerk of Court requesting service by the U.S. Marshals Service on Fresno County Sheriff Margaret Mimms and on Counsel for Defendant Toon. Plaintiff attached three copies of a subpoena requesting “[d]uty rosters for C/Os who worked at the Fresno County Jail, north jail, fourth floor on 5/11/18-5/14/2018 and those who responded to the riot on 5/11/18.”
Personal service on counsel for the County of Fresno is not required.
Accordingly, it is HEREBY ORDERED that:
1. The Clerk of Court shall forward the following documents to the United States
Marshals Service (“USM”):
a. One (1) completed and issued subpoena duces tecum to be served on:
Litigation Coordinator
Fresno County Jail
North Annex Jail 1265 M Street Fresno, CA 93721
a. One (1) completed USM-285 form; and b. Two (2) copies of this order, one to accompany the subpoena and one for the United States Marshals Service.
2. The Clerk of Court is directed to attach a copy of the completed subpoena to this order.
3. Within TWENTY (20) DAYS from the date of this order, the USM SHALL effect personal service of the subpoena, along with a copy of this order, upon Fresno County Jail pursuant to Rule 45 of the Federal Rules of Civil Procedure and 28 U.S.C. § 566(c).
4. The USM is directed to retain a copy of the subpoena in its file for future use.
5. Within TEN (10) DAYS after personal service is effectuated, the USM SHALL file the return of service.
6. Within FOURTEEN (14) DAYS after service is effectuated, Fresno County Jail may provide the responsive documents to the Court in camera via email at EPGorders@caed.uscourts.gov. Alternatively, the Litigation Coordinator may provide the documents directly to Plaintiff at his current address:
Michael De'Andrae Flowers, BG-318
California City Correctional Facility
P.O. Box 2696
California City, CA 93504
IT IS SO ORDERED.