Opinion
Case No. 1:12-cv-01662-AWI-EPG (PC)
08-07-2018
MICHAEL J. SULLIVAN, Plaintiff, v. CHEN, et al., Defendants.
ORDER VACATING FINDINGS AND RECOMMENDATIONS, AND GRANTING REQUEST FOR ISSUANCE OF A THIRD-PARTY SUBPOENA DUCES TECUM REGARDING CONTACT INFORMATION FOR DEFENDANT DR. MARCHIANO
(ECF No. 134)
Plaintiff, Michael J. Sullivan, is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Before the Court is Plaintiff's Opposition (ECF No. 134) to the Court's findings and recommendations (ECF No. 128), in which the Court recommended dismissing without prejudice Defendant Dr. Marchiano. For the reasons discussed below, the Court will vacate its findings and recommendations.
This case is proceeding on Plaintiff's Second Amended Complaint against Mr. Chen, Dr. Patel, and Dr. Marchiano on claims of deliberate indifference to medical needs in violation of the Eighth Amendment. (ECF Nos. 57, 60, 69.) On August 16, 2016, the Court entered an Order finding service of process appropriate for Dr. Chen, Dr. Marchiano, and Dr. Patel. (ECF No. 70). On November 7, 2016, the Court directed service of process upon Dr. Marchiano by the United States Marshals. (ECF No. 75). On November 15, 2016, the Court received notice that service was returned unexecuted as to Dr. Marchiano. (ECF No. 76). The notice stated that the California Department of Corrections and Rehabilitation was unable to identify Dr. Marchiano. (Id.)
On January 6, 2017, Plaintiff moved for the appointment of counsel to assist in locating Dr. Marchiano, (ECF No. 80), which the Court denied (ECF No. 81). On December 11, 2017, the Court held a scheduling conference. (ECF No. 112). The Court discussed that Dr. Marchiano has not been served, and directed Plaintiff to file with the Court a request for a third-party subpoena duces tecum, requesting all documents regarding Dr. Marchiano's current mailing address. Id.
As of April 5, 2018, Plaintiff had not submitted any request through which to obtain additional information regarding Dr. Marchiano and no return of service had been filed indicating that Dr. Marchiano had been served. Accordingly, the Court issued findings and recommendations recommending that Dr. Marchiano be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 4(m). (ECF No. 128.)
Plaintiff objects to the dismissal of Dr. Marchiano and now makes the request that the Court directed him to make in December 2017—that the Court issue a third-party subpoena duce tecum to Kern Valley State Prison ("KVSP") and CDCR requesting all documents regarding Dr. Marchiano's current mailing address. (ECF No. 134 at 2.) Plaintiff acknowledges that the Court directed him to make this request in December 2017, but contends that he was previously unable to do so because "prison officials have kept Plaintiff in a constant state of d[e]bilitation and severe and extreme pain by withholding and denying him necessary medicines and necessary medical treatment" and "coupled with the fact that Plaintiff was transferred to a different institution" and "separated from all his legal materials," "then ended up in a mental health crisis bed," making it "very difficult, if not next to impossible to function and/or comply with the court's orders." (Id. at 1.)
In light of Plaintiff's explanation for his delay, the Court will vacate its findings and recommendation (ECF No. 128). The Court also will grant Plaintiff's request that the Court issue a subpoena duces tecum regarding Defendant Dr. Marchiano's contact information. The Court notes, however, that when the U.S. Marshal previously attempted to serve Dr. Marchiano, the CDCR indicated that it was "unable to identify this individual." (ECF No. 76.) The Court thus suggests Plaintiff include in the subpoena a request for specific information that will help Plaintiff identify the individual currently identified as Dr. Marchiano, such as the name and current address of medical personnel who worked at KVSP during the relevant time. The Court also suggests that Plaintiff include in the subpoena identifying information regarding the individual currently identified as Dr. Marchiano, such as a physical description of the individual, the time during which Plaintiff had contact with this individual at KVSP, the individual's position at KVSP during the relevant time, and any other information, such as a copy of a 602, that would help to identify this individual.
The Court notes that, to the extent the CDCR has concerns about providing an address (or addresses) for the individual currently identified as Dr. Marchiano, the Court may allow the submission of that information in camera or under seal such that the Court can issue relevant summonses.
The Court also notes that it has issued Findings and Recommendations that the motion for summary judgment filed by defendants Dr. Patel and Dr. Chen be granted and that the claims against Dr. Patel and Dr. Chen be dismissed without prejudice to refiling in a new, separate case. The reasoning that led the Court to make those findings and recommendations appears to also apply to Dr. Marchiano. If Plaintiff files a new, separate case to pursue his claims against Dr. Patel and Dr. Chen, he may want to also consider including Dr. Marchiano as a defendant in that new case, if appropriate.
Accordingly, the Court will grant Plaintiff's request for subpoenas directed at Kern Valley State Prison and the California Department of Corrections and Rehabilitation and will send Plaintiff subpoenas duces tecum (form AO 88B) to complete and return.
IT IS ORDERED that:
1. The findings and recommendations issued April 5, 2018 (ECF No. 128) are VACATED;\\\ \\\
2. Plaintiff's request for issuance of subpoenas duces tecum (ECF No. 134) is GRANTED;
3. The Clerk of Court is directed to send Plaintiff two (2) copies of form AO 88B and two (2) copies of form USM-285; and
4. Plaintiff has thirty days from the date of service of this order to complete and return form AO 88B and form USM-285.IT IS SO ORDERED.
Dated: August 7 , 2018
/s/_________
UNITED STATES MAGISTRATE JUDGE