The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER GRANTING PLAINTIFF'S MOTION TO COMPEL AND REQUIRING NONv. PARTY ACTING WARDEN OF CORCORAN STATE PRISON TO SERVE FURTHER RESPONSE (DOC. 96) RESPONSE DUE WITHIN TWENTY-ONE DAYS
Plaintiff Nick Woodall ("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. This action is proceeding against Defendant A. Raygoza for deliberate indifference in violation of the Eighth Amendment.*fn1
On March 30, 2011, the Court directed service of Plaintiff's subpoena duces tecum by the United States Marshal on then warden Raul Lopez of California State Prison at Corcoran ("CSP-Cor").*fn2
On April 25, 2011, the subpoena was returned executed. Pending before the Court is Plaintiff's motion to compel, filed July 29, 2011. Doc. 96. Plaintiff contends that he did not receive any of the documents requested in his subpoena duces tecum. Plaintiff requests that the Court hold Mr. Lopez in contempt and impose sanctions pursuant to Rule 45 of the Federal Rules of Civil Procedure.
A review of the Court's records indicates that the acting warden submitted documents requested in the subpoena duces tecum to the Court. The Court, however, did not request these documents. On September 9, 2011, the Court ordered the acting warden to file a response to Plaintiff's motion to compel. Doc. 98.
On September 23, 2011, the acting warden responded, stating that the documents were sent to the Court, and not to the Plaintiff, inadvertently. Doc. 100. The acting warden attached a copy of the produced documents to his response. Id. On October 3, 2011, Plaintiff filed his reply to the acting warden's response. Doc. 101. Plaintiff contends that the acting warden still has not fully complied with the Court's subpoena duces tecum as seventeen of the twenty-six requested documents were not produced. Pl.'s Reply 2-5. Plaintiff requests sanctions be imposed on acting warden Lopez for contempt of court. Id. at 5-6.
A review of the attached documents indicates that the acting warden
did not fully comply with the subpoena duces tecum.*fn3
"The issuing court may hold in contempt a person who, having
been served, fails without adequate excuse to obey the subpoena." Fed.
R. Civ. P. 45(e). The Court declines to issue a sanction for
non-compliance with the subpoena duces tecum until after the issuance
of an order commanding compliance. See Pennwalt Corp.
Durand-Wayland, Inc., 708 F.2d 492, 494 (9th Cir. 1983) (finding
corporation subject to subpoena could not be sanctioned in absence of
enforcement order). The Court will thus by this order require the
acting warden to comply with the subpoena duces tecum or provide an
objection or adequate excuse as
to why he cannot. If the acting warden fails to comply, he may be
subject to a subsequent finding of contempt.
Accordingly, it is HEREBY ORDERED that
1. Plaintiff's motion to compel, filed July 29, 2011, is GRANTED;
2. Acting warden R. Lopez is to serve on Plaintiff additional responses to Plaintiff's subpoena duces tecum within twenty-one (21) days from the date of service of this order, as stated herein;
3. Failure to comply with the subpoena or to provide adequate excuse for failing to obey may result in the acting warden being held in contempt.