Opinion
No. 2: 14-cv-0066 JAM KJN P
03-13-2015
JASON LATRELL THOMAS, Plaintiff, v. GUFFY, et al., Defendants.
ORDER
Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's March 2, 2015 motion for court assistance in serving a subpoena. (ECF No. 59) For the reasons stated herein, plaintiff's motion for assistance in serving the subpoena is granted.
Plaintiff requests that the court serve his subpoena on the Office of Internal Affairs in Sacramento. This subpoena, attached to plaintiff's motion, requests production of,
...officers statements per Internal Affairs reports and interviews of all witnesses as well as final disposition of staff complaint 602 log No. CSP-Sac T-13-0911 against CSP-Sacramento Officer R. Guffee, Link Lopez and Ruiz.(ECF No. 59 at 6.)
The internal affairs reports are the documents plaintiff sought from defendants in a motion to compel, discussed in a separate order. The undersigned found that defendants did not have these documents in their possession, custody or control.
In his separately filed motion to modify the scheduling order (ECF No. 40), plaintiff stated that he served a subpoena on the Warden of California State Prison-Sacramento ("CSP-Sac") requesting the Internal Affairs reports and interviews. In the motion to modify the scheduling order, plaintiff requested an extension of time to file a motion to compel regarding the response to that subpoena by the CSP-Sac Warden. In the order addressing the motion to modify the scheduling order, the undersigned reasonably inferred that the CSP-Sac Warden did not have these documents, as plaintiff had filed the pending motion indicating that he was now seeking them from the Office of Internal Affairs.
The discovery deadline was October 24, 2014. (ECF No. 24.) However, the undersigned finds good cause to modify the scheduling order to allow plaintiff to serve the subpoena described above on the Office of Internal Affairs. Fed. R. Civ. P. 16(b). As discussed in the order addressing plaintiff's motion to modify the scheduling order, plaintiff has been diligent in seeking the documents sought in the subpoena. Accordingly, the undersigned turns to plaintiff's request for court assistance in serving this subpoena.
Federal Rule of Civil Procedure 45 governs subpoenas issued to third parties. A subpoena is required to procure testimony or documents from one who is not a party to the action or controlled by a party to the action. Fed. R. Civ. P. 45. The subpoena must be served by a non-party who is at least eighteen years old. Fed. R. Civ. P. 45(b)(1). Service of a subpoena must be made by personally delivering a copy of the subpoena to the person being served and there is no substitute service. See Prescott v. County of Stanislaus, 2012 WL 10617, *3 (E.D. Cal. Jan .3, 2012) (stating that "[p]ersonal service of a deposition subpoena is required by Fed.R.Civ.P. 45(b)(1)," that "[a] majority of courts interpret 'delivering' to require personal service," and noting that while "the Ninth Circuit has not issued a published opinion on this topic, more than a decade ago, in Chima v. United States Dep't of Defense, 23 Fed. Appx. 721 at *6-7 (9th Cir. Dec. 14, 2001), the court issued an unpublished decision affirming trial court's refusal to compel compliance with subpoena that was served by mail") (citing San Francisco BART Dist. v. Spencer, 2006 WL 2734284 (N.D. Cal. Sept. 25, 2006); Alexander v. Cal. Dep't of Corr., 2011 WL 1047647 (E.D. Cal. Mar. 16, 2011) (personal service required under Rule 45(b)(1)); and Collagen Nutraceuticals, Inc. v. Neocell Corp., 2010 WL 3719101 (S.D. Cal. Sept. 17, 2010) ("Rule 45 mandates personal service for subpoenas.").
In essence, plaintiff requests that the court direct the U.S. Marshal to serve his subpoena for him. The court must "issue and serve all process and perform all such duties" for a plaintiff proceeding in forma pauperis. 28 U.S.C.1915(d). Plaintiff, proceeding in forma pauperis, thus "is generally entitled to obtain service of a subpoena duces tecum by the United States Marshal. 28 U.S.C.1915(d)." Heilman v. Lyons, 2010 WL 5168871, *1 (E.D. Cal. Dec.13, 2010); but see, Garcia v. Grimm, 2012 WL 216565, * 4 (S.D. Cal. Jan. 23, 2012) (citing Tedder v. Odel, 890 F.2d 210, 211, 212 (9th Cir. 1989) ("Plaintiff, however, is responsible for paying all fees and costs associated with the subpoenas ....fees are not waived based on Plaintiff's in forma pauperis status").
Because Federal Rule of Civil Procedure 45(b) requires personal service of a subpoena, "'[d]irecting the Marshal's Office to expend its resources personally serving a subpoena is not taken lightly by the court,' Austin v. Winett, 2008 WL 5213414, *1 (E.D. Cal. 2008); 28 U.S.C. § 1915(d)." Alexander v. California Dept. of Corr., 2010 WL 5114931, *3 (E.D. Cal. Dec. 9, 2010).
Limitations include the relevance of the information sought as well as the burden and expense to the non-party in providing the requested information. Fed.R.Civ.P. 26, 45. A motion for issuance of a subpoena duces tecum should be supported by clear identification of the documents sought and a showing that the records are obtainable only through the identified third party. See, e.g., Davis v. Ramen, 2010 WL 1948560, *1 (E.D. Cal. 2010); Williams v. Adams, 2010 WL 148703, *1 (E.D. Cal. 2010). The "Federal Rules of Civil Procedure were not intended to burden a non-party with a duty to suffer excessive or unusual expenses in order to comply with a subpoena duces tecum." Badman v. Stark, 139 F.R.D. 601, 605 (M.D. Pa. 1991); see also, United States v. Columbia Broadcasting System, Inc., 666 F.2d 364 (9th Cir. 1982) (court may award costs of compliance with subpoena to non-party). Non-parties are "entitled to have the benefit of this Court's vigilance" in considering these factors. Badman, 139 F.R.D. at 605. Alexander v. California Dept. of Corrections, 2010 WL
5114931 * 3 (E.D. Cal. 2010).Id.; Lopez v. Schwarzenegger, 2012 WL 78377 (E.D. Cal. Jan. 10, 2012) (same).
The information sought by plaintiff in the subpoena is relevant to this action. These documents are not obtainable from defendants. Accordingly, plaintiff's motion for court assistance in serving the subpoena is granted.
However, the subpoena that plaintiff has submitted is defective inasmuch as it is not signed by the Clerk of the Court. Federal Rule of Civil Procedure 45(a)(3) requires that "[t]he clerk must issue a subpoena, signed but otherwise in blank, to a party who requests it. That party must complete it before service." Therefore, at the outset, a new subpoena, blank but signed by the Clerk of the Court, must issue to plaintiff. Accordingly, the undersigned herein directs the Clerk of the Court to issue a blank subpoena to plaintiff. Plaintiff shall then complete the subpoena and return it to the United States Marshal's Office.
The undersigned also finds that the subpoena submitted by plaintiff does not describe the documents sought regarding the internal affairs investigation in sufficient detail. In the subpoena submitted to the United States Marshal's Office, plaintiff shall describe the investigatory documents regarding the Internal Affairs investigation in more detail so that the Office of Internal Affairs is able to identify the documents sought. In addition to describing the documents as relating to the internal affairs investigation, plaintiff shall identify the date of the incident investigated ( i.e. March 4, 2013) and the persons involved (i.e., defendants Guffey, Link-Lopez and Ruiz).
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for court assistance in serving subpoenas (ECF No. 59) is granted;
2. The Clerk of the Court is directed to issue one blank subpoena to plaintiff;
3. Within twenty-one days of the date of this order, plaintiff shall send the completed subpoena to the United States Marshal's Office, 501 I Street, Sacramento, California, 95814; within that time, plaintiff shall also file a notice with the court indicating that he sent the subpoena to the United States Marshal;
4. The Clerk of the Court is directed to serve a copy of this order on the United States Marshal. Dated: March 13, 2015
/s/_________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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