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Johnson v. Dovey

May 14, 2010

GARRISON S. JOHNSON, PLAINTIFF,
v.
DOVEY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DENYING MOTIONS FOR SUBPOENA DUCES TECUM (Docs. 46, 49, 54)

ORDER REQUIRING DEFENDANTS TO RESPOND TO PLAINTIFF'S MOTION FOR SUBPOENA DUCES TECUM WITHIN TWENTY DAYS (Doc. 50)

ORDER DENYING MOTION FOR APPOINTMENT OF SPECIAL MASTER AND EXPERT WITNESSES/ (Doc. 53)

Order

Plaintiff Garrison S. Johnson ("Plaintiff") 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. Pending before the Court are Plaintiff's motions for subpoena duces tecum, filed November 23, 2009, December 7, 2009, and March 8, 2010. (Docs. 46, 49, 50, 54.) Also pending before the Court is Plaintiff's motion for appointment of special master and appointment of expert witnesses. (Doc. 53.) The Court will address each in turn.

I. November 23, 2009 Motion (Doc. 46)

Plaintiff requests that the Court order Dr. Bouvaire, a former employee at California Correctional Institution ("CCI"), to produce an affidavit attesting to her witnessing retaliatory actions by correctional officers against inmates. (Doc. 46, Mot. 1-2.) A subpoena duces tecum cannot be used to order the production of an affidavit. See Fed. R. Civ. P. 45 (subpoenas must "command each person to whom it is directed to do the following at a specific time and place: attend and testify; produce designated documents, electronically stored information, or tangible things in that person's possession, custody, or control; or permit the inspection of premises"). Plaintiff's request that the court subpoena Dr. Bouvaire to produce an affidavit for Plaintiff is beyond the scope of a subpoena. Plaintiff's request is thus denied. This is not to say that Plaintiff is barred from communication with Dr. Bouvaire. However, the Court will not require the United States Marshal to subpoena Dr. Bouvaire to produce an affidavit. Accordingly, Plaintiff's motion is DENIED.

II. December 7, 2009 Motion (Doc. 49)

Plaintiff requests that the Court issue a subpoena requiring Bob Sillen, the CDCR health care receiver, to produce a bi-monthly report of CDCR health care system from 2006 through 2009. (Doc. 49, Mot. 1-2.) Plaintiff contends this is necessary because the reports will prove Plaintiff's claim that there is a culture of CDCR medical staff cooperating with CDCR custody staff in denying inmates medical treatment. (Id.)

Pursuant to Federal Rule of Civil Procedure 34, governing production of documents, Plaintiff fails to identify with reasonable particularity the documents he is requesting. Furthermore, pursuant to Federal Rule of Civil Procedure 26, Plaintiff has failed to make a showing that the documents he seeks are reasonably related to lead to the discovery of admissible evidence. It is unclear whether these documents exist, and what information they contain. Accordingly, Plaintiff's motion is DENIED.

III. December 7, 2009 Motion (Doc. 50)

Plaintiff requests that the Court issue a subpoena requiring Matthew Cate, Secretary of CDCR, to produce duplicates of the five digital photographs that depict the injuries sustained by Defendant Holguin in the alleged altercation with Plaintiff. (Doc. 50, Mot. 1-2.)

The documents requested by Plaintiff are relevant for discovery purposes, as the five photographs depicting the injuries suffered by Defendant Holguin are reasonably related to lead to the discovery of admissible evidence in this action. While Secretary Cate is indirectly linked to these photographs, presumably he or a prison official below him would have possession, custody, or control over the photographs. However, requiring Secretary Cate to produce these photographs would be an inefficient use of federal court and state resources. If Defendants are willing to produce these photographs, then Plaintiff's request for a subpoena duces tecum would be moot.

Accordingly, the Court HEREBY ORDERS Defendants to respond to Plaintiff's motion for subpoena duces tecum, filed December 7, 2009, and docketed as court document 50. Defendants have twenty days from the date of ...


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