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Jackson v. Woodford

July 11, 2007

ARTHUR D. JACKSON, PLAINTIFF,
v.
J. WOODFORD, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Nita L. Stormes U.S. Magistrate Judge

ORDER DENYING PLAINTIFF'S MOTIONS TO COMPEL DEPOSITIONS BY WRITTEN QUESTIONS [Doc. No. 91] [Doc. No. 93] [Doc. No. 95]

Plaintiff Arthur Dwayne Jackson, proceeding in forma pauperis, filed three motions to compel depositions by written questions. He seeks to compel the depositions of (1) non-parties Cook and Dexter (Doc. No. 91); (2) defendants J.P. Gonzalez, Sanders, Garcia, Gomez, Zaragosa and G. H. Gonzalez (Defendants) (Doc. No. 93); and (3) non-parties Long, Shipman and Pothier (Doc. No. 95). After reviewing the parties' arguments and objections, the Court DENIES all three motions to compel. Relevant Facts.

On April 11, 2007, the Court granted Plaintiff's request for subpoena forms and ordered that the Clerk of Court send subpoena forms and U.S. Marshal Form 285 to Plaintiff. The Clerk did not sign the subpoenas as the issuing officer. Plaintiff signed the subpoena forms as the issuing officer. Then, on May 31,*fn1 Plaintiff himself served the subpoenas, accompanied by deposition questions, on Cook and Dexter. Plaintiff also served subpoenas and deposition questions on Long, Shipman and Pothier.

The California Department of Corrections and Rehabilitation (CDCR), on behalf of two of its employees--Cook and Dexter--sent a letter to Plaintiff objecting to the subpoenas. Cook and Dexter object because (1) the subpoenas are invalid because neither the clerk of court nor an attorney licensed to practice in this district issued the subpoenas; and (2) the subpoenas were invalidity served because they were not served by an adult 18 years or older who is not a party to this action.

Long, Shipman and Pothier never responded to the subpoenas.

Plaintiff also served on Defendants notice of depositions by written questions. Defendants have not responded to the notice.

Validity of Subpoenas

Rule 45(a)(3) says that "[t]he clerk shall issue a subpoena, signed but otherwise in blank, to a party requesting it, who shall complete it before service." Once issued, and the party provides the necessary information, officers of the court will serve the subpoena for the in forma pauperis litigant: (c) The officers of the court shall issue and serve all process, and perform all duties in such cases. Witnesses shall attend as in other cases, and the same remedies shall be available as are provided for by law in other cases.

28 U.S.C. § 1915(c).

Here, the clerk sent the subpoena forms to Plaintiff, but did not sign and issue the subpoenas.

The subpoenas, therefore, were never properly issued. Second, Plaintiff served the subpoenas himself, which, according to Federal Rule of Civil Procedure 45(b)(1),*fn2 makes the service invalid.

While Plaintiff did not use court-issued subpoenas, using court-issued subpoenas--even if served by the U.S. Marshal--would not have remedied the defects in the subpoenas. As explained below, the subpoenas were invalid for several other reasons.

Rule 31.

Plaintiff seeks to take depositions by written questions. Rule 31(b), however, requires that Plaintiff designate a deposition officer to ...


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