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Kitchens v. Tordsen

United States District Court, E.D. California

September 5, 2014

TORDSEN, et al., Defendants.


MICHAEL J. SENG, Magistrate Judge.


Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. ยง 1983. (ECF Nos. 1, 10.) This matter proceeds against Defendant Tordsen on Plaintiff's First Amendment retaliation claim, and against Defendants Tordsen, Coker, Leach and Day on Plaintiff's Fourteenth Amendment claim for subjecting Plaintiff to conditions of confinement that amounted to punishment. (ECF No. 28.) The complaint concerns acts that occurred while Plaintiff was a pretrial detainee at Kings County Jail.

Before the Court are Plaintiff's request for subpoenas (ECF No. 59) and motion to compel discovery (ECF No. 65).


To put Plaintiff's discovery requests in context, the Court will briefly review his claims that were found to be cognizable. (See ECF No. 28.)

Plaintiff alleges essentially as follows:

Plaintiff was housed in the Secure Housing Unit of the Kings County Detention Center on December 29, 2010. Defendant Tordsen searched Plaintiff's cell, found damage to the cell, and had Plaintiff strip-searched. Plaintiff was handcuffed and transferred to another holding cell where he was kept for six hours. Plaintiff complained to Defendant Tordsen about the holding cell. In response, Defendant Tordsen placed Plaintiff in a cell covered with feces. Defendant Tordsen provided Plaintiff with minimal cleaning materials.

Plaintiff asked for a grievance form so he could complain about the cell, but Defendant Tordsen refused to provide him with one.

Plaintiff threatened to commit suicide if he was not removed from the cell. Defendants Coker, Leach, and Day responded to Plaintiff's threat. Defendant Day gave Plaintiff the option of either cleaning the cell or being placed on suicide watch. Plaintiff chose to be placed on suicide watch, and was placed on suicide watch for the night.

Plaintiff was returned to Defendant Tordsen's custody and to the filthy cell the following day. Plaintiff continued to clean the cell with limited supplies. While cleaning, he slipped and injured his head. Plaintiff started to experience facial numbness, became concerned about brain damage, and decided to slit his wrists.

Plaintiff was later diagnosed with facial paralysis and a back injury.


Plaintiff seeks a subpoena to obtain the following documents from Atascadero State Hospital: (1) Plaintiff's 2011 booking photos, (2) the booking sheet showing the 2010/2011 booking and release of Terry W. Moore, and (3) "[a]ll police reports forwarded to Ata[s]cadero State Hospital during the PC1370 process for the treatment and evaluation of [Plaintiff] in 2011." (ECF No. 59.) Plaintiff states that these documents are not in the possession of Defendants. Defendants did not respond to the request.

A. Legal Standard

Pro se parties may be entitled to the issuance of a subpoena commanding the production of documents from a nonparty, subject to certain requirements. Fed.R.Civ.P. 26(b), 34(c), 45. The Court will consider granting such a request only if the documents sought from the nonparty are not equally available to Plaintiff and are not obtainable from Defendant through a request for the production. See Fed.R.Civ.P. 34. If Defendant objects to Plaintiff's discovery request, a motion to compel is the next required step. If the Court rules that the documents are discoverable but Defendant does not have care, custody, and control of them, Plaintiff may then seek a subpoena of a nonparty. Alternatively, if the Court rules that the documents are not discoverable, the inquiry ends.

The Court will not issue a subpoena for a nonparty without Plaintiff first following the procedure outlined above. The record does not indicate whether Plaintiff has sought the requested information through discovery requests served upon Defendants, but Plaintiff certainly has not filed a motion to compel Defendants to produce the requested documents. Although Plaintiff alleges that the documents are not in Defendants' possession, it appears, as discussed below, that at least some of Plaintiff's concerns could have been resolved through discovery requests directed at Defendants.

Accordingly, Plaintiff's motion for subpoenas duces tecum will be denied on this basis. Additional reasons for denying each request are discussed below.

B. Booking Photographs

Plaintiff asserts that he needs his booking photographs from Atascadero State Hospital to respond to Defendants' request for production of documents, in which Defendants requested "any and all photos" relating to Plaintiff's injuries. (ECF No. 59 at 1-2.)

Plaintiff is only required to produce items that are in his possession, custody, or control. Fed.R.Civ.P. 34(a)(1). He is not required to subpoena documents or things in order to respond to a discovery request. The Court will not issue a subpoena for Plaintiff to obtain photographs to respond to Defendants' requests.

C. Information Relating to Terry Moore

Plaintiff asserts that he needs the booking sheet from Atascadero State Hospital to show that inmate Terry Moore was in the Hospital and not at the Kings County Jail on December 29 and 30, 2010, the dates of the events at issue in this case. (ECF No. 59 at 2-4.) Plaintiff asserts that the booking sheet will demonstrate there was a vacant cell available that Plaintiff could have been moved to. Plaintiff also asserts that Defendants provided him with an Inmate Housing List for the dates at issue and it falsely showed that Mr. Moore was housed at Kings County Jail, not at the Hospital. The booking sheet therefore will show that Defendants' records were falsified.

As discussed below in relation to Plaintiff's motion to compel, Defendants dispute that the documents they produced were falsified. Indeed, Defendants agree that Mr. Moore was at the Hospital on December 29, 2010, and assert that he returned to the jail on December 30. Defendants also assert that the documents they produced accurately reflect this information. Based on Defendants' agreement that Mr. Moore was at the Hospital on December 29 and part of December 30, it is apparent that Plaintiff could have satisfied his need for further information regarding Mr. ...

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