United States District Court, E.D. California
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
is a former state prisoner proceeding pro se and in forma
pauperis in this civil rights action against defendant prison
physician Dr. St. Claire. Plaintiff contends that defendant
was deliberately indifferent to his serious medical needs.
Currently pending is defendant's motion to compel
discovery. ECF No. 35. Also pending is plaintiff's
request for service of two subpoenas duces tecum. ECF No. 37.
For the reasons set forth below, defendant's motion is
granted in full, and plaintiff's request is denied
Defendant's Motion to Compel
motion is based on the declaration of defense counsel, Deputy
Attorney General John Bridges, and the attached exhibits.
See ECF No. 35. Defense counsel contends that
plaintiff failed to respond to defendant's Special
Interrogatories, Set One (containing ten interrogatories),
and Request for Production of Documents, Set One (containing
four requests), served on January 26, 2017. See ECF
No. 35-1, Exs. 1, 2. Responses were due March 13, 2017.
also failed to appear at his noticed deposition. Defense
counsel recounts that he served a first Notice of Deposition
to plaintiff on February 2, 2017, scheduling his deposition
for February 28, 2017. Id., Exs. 3, 4. Plaintiff
reportedly called defense counsel to reschedule the
deposition, but did not provide alternative dates. Defense
counsel served an Amended Notice of Deposition to plaintiff
on March 2, 2017, with a deposition date of March 17, 2017.
Id., Exs. 5, 6. Plaintiff did not appear for the
deposition. Id., Ex. 7. Defense counsel again
corresponded with plaintiff in an effort to select another
date for his deposition, and requested that plaintiff
provide, by April 11, 2017, alternative dates for his
deposition. Id., Ex. 8. Counsel also requested that
plaintiff provide his written discovery responses by April
11, 2017. Id. Plaintiff left a voicemail for defense
counsel, explaining (as he had previously) that the date for
his deposition needed to accommodate plaintiff's medical
appointments and his wife's work schedule because she
would be transporting plaintiff. Id. Defense counsel
responded by letter dated April 17, 2017, requesting
available dates and offering to conduct plaintiff's
deposition at a location closer to his home. Id.,
Exs. 8, 9. Plaintiff reportedly failed to respond to defense
filed the pending discovery motion on May 30, 2017.
See ECF No. 35.
response, on June 8, 2017, plaintiff filed a one-page
statement asserting, without further explanation, that he
appeared at defense counsel's office for his noticed
deposition; and that defense counsel sought release of
plaintiff's medical records using the wrong inmate
number. See ECF No. 36. Plaintiff also submitted two
proposed subpoenas duces tecum: the first addressed to the
“California Dept. of Corrections (Medical
602's);” the second to Dr. Steven Smith (CDCR)
Employee.” ECF No. 37 (submissions).
Rule 37(a)(3)(B), Federal Rules of Civil Procedure, a party
seeking discovery may move for an order compelling such
discovery. The court has reviewed defendant's written
discovery requests and finds each interrogatory and document
request to be relevant to the factual and legal issues
presented in this case. The court will direct plaintiff to
answer each interrogatory to the best of his ability, and to
produce the requested documents that are in plaintiff's
current custody or control. If plaintiff is unable to provide
some of the information or documents requested, he should say
so, and explain why.
is informed that failure to comply with a court order
directing responses to discovery may result in sanctions that
could impair plaintiff's ability to further pursue the
merits of this case. See Fed.R.Civ.P. 37(b)(2)(A).
Plaintiff's Request for Service of Subpoenas Duces
court now turns to plaintiff's proposed subpoenas duces
tecum. A subpoena duces tecum directs a non-party to produce
documents or other tangible objects for inspection.
See Fed.R.Civ.P. 45(a)(2). Because plaintiff is
proceeding in forma pauperis, he is entitled to obtain
personal service of an authorized subpoena duces tecum by the
United States Marshal. See 28 U.S.C. § 1915(d).
A subpoena must be personally served or it is null and void.
Fed.R.Civ.P. 45(c); Gillam v. A. Shyman, Inc., 22
F.R.D. 475 (D. Alaska 1958).
court's review of plaintiff's proposed subpoenas
demonstrates that both are inadequate. Neither proposed
subpoena describes the documents to be produced, or the place
and date of production. The documents sought by plaintiff's
first proposed subpoena, his “Medical 602s, ”
which the court construes as plaintiff's relevant medical
prison grievances/appeals, should be in the possession of
defense counsel or readily accessible by defense counsel.
Accordingly, defense counsel will be directed to provide
plaintiff with copies of his medical prison
602's/grievances/appeals relevant to the instant action.
A subpoena is unnecessary.
information sought by plaintiff's second proposed
subpoena, directed to “Dr. Steven Smith (CDCR)
Employee, ” is not identified in the subpoena, nor is
it apparent from plaintiff's complaint, ECF No. 17, or
his initial request for issuance of subpoenas, ECF No. 32.
The proposed subpoena also lacks a physical address for
service of the subpoena. This proposed subpoena is denied
without prejudice. Plaintiff may file another motion
requesting issuance and service of a subpoena duces tecum on
Dr. Steven Smith. Such motion must clearly and specifically
identify the information sought from Dr. Smith, how the
information is relevant to this case and how it is in the
unique possession of Dr. ...