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Jardine v. Dr. Jack St. Clair

United States District Court, E.D. California

July 25, 2017

DALE JARDINE, Plaintiff,
v.
DR. JACK ST. CLAIR, Defendant.

          ORDER

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         Plaintiff 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 without prejudice.

         II. Defendant's Motion to Compel

         Defendant's 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.

         Plaintiff 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 counsel's letter.

         Defendant filed the pending discovery motion on May 30, 2017. See ECF No. 35.

         In 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).

         Under 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.

         Plaintiff 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).

         III. Plaintiff's Request for Service of Subpoenas Duces Tecum

         The 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).

         The 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.[1] 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.

         The 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. ...


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