1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Benjamin Freeman, No. CV-20-00287-TUC-RM
10 Plaintiff, ORDER
11 v.
12 David Shinn,
13 Defendant. 14 15 Pending before the Court are Plaintiff’s Motion for Issuance of Subpoena (Doc. 16 82) and Motion for Leave to File a Supplemental Complaint (Doc. 85). Defendant 17 responded to both Motions. (Docs. 83, 88.) For the following reasons, the Motions will 18 be denied. 19 I. Background 20 Plaintiff filed this action alleging constitutional violations pursuant to 42 U.S.C. § 21 1983 connected to his incarceration at Arizona State Prison Complex (“ASPC”)-Tucson. 22 (See Doc. 1.) The Court ordered Defendant Shinn in his official capacity to respond to 23 Plaintiff’s claims for prospective injunctive relief, and dismissed all other claims and 24 defendants on screening under 28 U.S.C. § 1915(A). (See Doc. 6.) 25 Plaintiff thereafter sought leave to file a First Amended Complaint (“FAC”) (Doc. 26 17) and leave to file a Supplemental Complaint (Doc. 19). The Court granted leave to 27 amend, ordered Shinn in his official capacity to answer Count I of the FAC for 28 prospective injunctive relief, and dismissed on screening all other claims and defendants 1 in the FAC. (Doc. 55; see also Docs. 56, 60.) The Court denied leave to file a 2 Supplemental Complaint, finding that the proposed Supplemental Complaint failed to 3 state a claim on which relief could be granted against any of the defendants named 4 therein. (Doc. 55; see also Doc. 20.) 5 After discovery had closed, Plaintiff filed another Motion for Leave to File 6 Supplemental Complaint (Doc. 66) and a Motion to Extend Discovery (Doc. 63). The 7 Court denied the second Motion for Leave to File Supplemental Complaint because the 8 proposed Supplemental Complaint merely repeated allegations that Plaintiff had already 9 sought to introduce in his prior Motion for Leave to File Supplemental Complaint, and 10 the Court found no basis for reconsidering its prior Order. (Doc. 78; see also Docs. 19, 11 20, 55.) The Court denied Plaintiff’s Motion to Extend Discovery without prejudice and 12 with leave for Plaintiff to file a motion pursuant to Federal Rule of Civil Procedure 56(d). 13 (Id.) 14 On September 17, 2021, Defendant Shinn filed a Motion for Summary Judgment 15 (Doc. 75.) The Court granted Plaintiff an extension of time to respond to the Motion for 16 Summary Judgment (Doc. 80), but the extended response deadline expired on November 17 22, 2021, and to date Plaintiff has not filed a response or a Rule 56(d) motion. 18 II. Motion for Issuance of Subpoena 19 Plaintiff requests that a subpoena be issued to “Warden Jeff Van Winkle Librarian 20 – Mr. Pinney, Mail & Property CO II Kinser CO II Lozano” for “25 pages of 21 medical/confidential and legal records.” (Doc. 82.) Defendant Shinn opposes the Motion, 22 arguing that (1) Plaintiff could have sought a further extension of the discovery deadline 23 of June 17, 2021, but he failed to do so, (2) Plaintiff could have served a request for 24 production before expiration of the discovery deadline and could have requested copies 25 of his medical records by following prison policy; and (3) Defendant’s Motion for 26 Summary Judgment is now pending and Plaintiff has not shown, pursuant to Federal Rule 27 of Civil Procedure 56(d), that he “cannot present facts essential to justify [his] 28 opposition” without the sought-after documents. (Doc. 83.) In reply, Plaintiff contends 1 that he has exhausted prison procedures for obtaining the records and that the records 2 were unconstitutionally confiscated. (Doc. 87.) 3 Federal Rule of Civil Procedure 45 governs the issuance of subpoenas. A 4 subpoena “may command a person to attend a trial, hearing, or deposition” or produce 5 “documents, electronically stored information, or tangible things.” Fed. R. Civ. P. 6 45(c)(1)-(2). 7 General Order 18-19 sets forth the procedural requirements for pro se litigants 8 who wish to serve subpoenas. Pro se litigants must (1) file a motion “in writing, (2) attach 9 a copy of the proposed subpoena, (3) set forth the name and address of the witness to be 10 subpoenaed and the custodian and general nature of any documents requested, and (4) 11 state with particularity the reasons for seeking the testimony and documents.” Gen. Ord. 12 18-19. Requests for subpoenas that do not comply with these requirements will be 13 denied. See Withers v. Beecken Petty O'Keefe & Co., No. CV1703391PHXDWLJZB, 14 2019 WL 1153440, at *2 (D. Ariz. Mar. 13, 2019). 15 Discovery in this matter closed on June 17, 2021. (Docs. 39, 78.) Plaintiff has not 16 moved for relief under Federal Rule of Civil Procedure 56(d), nor has he shown in his 17 Motion for Issuance of Subpoena that the documents at issue are necessary for him to 18 present facts in opposition to Defendants’ Motion for Summary Judgment. Moreover, 19 although Plaintiff asserts that he exhausted the prison procedures for requesting the 20 documents, he provides no evidence to support this assertion. Lastly, Plaintiff has not 21 complied with the requirements of General Order 18-19 because he has not attached a 22 copy of a proposed subpoena nor stated with particularity the reasons for seeking the 23 documents. Accordingly, the Motion for Issuance of Subpoena will be denied. 24 III. Motion for Leave to File a Supplemental Complaint 25 Plaintiff’s Motion seeks leave to file a Supplemental Complaint based on 26 allegations that his medical/legal records relevant to this lawsuit were illegally 27 confiscated. (Doc. 85.) On February 4, 2022, Defendant Shinn filed a Response (Doc. 88) 28 and a Notice of Service of Confiscated Records (Doc. 89), in which he avers that the 1 documents that were the subject of the Motion for Leave to File a Supplemental 2 Complaint were served on Plaintiff. In Reply, Plaintiff states that the documents Shinn 3 produced are “a copy of the original set” and that he is requesting a copy of the medical 4 records that were confiscated. (Doc. 90.) However, Plaintiff does not differentiate 5 between the “original set” and the confiscated records. (Id.) Nor does he contend that the 6 copy Shinn provided to him is inadequate or incomplete in any way. (Id.) Accordingly, 7 the Court credits Defendant Shinn’s averment that Plaintiff’s medical records have been 8 produced. (See Doc. 89.) 9 Because Plaintiff now has his medical records in his possession, the Motion for 10 Leave to File a Supplemental Complaint is moot to the extent the proposed Supplemental 11 Complaint requests injunctive relief. To the extent the proposed Supplemental Complaint 12 requests monetary damages, it fails to state a claim on which relief can be granted, as it 13 fails to allege actual injury from the temporary confiscation of Plaintiff’s records.1 14 To prevail on an access-to-courts claim, a plaintiff must, among other elements, 15 establish “actual injury” by demonstrating that the defendants’ acts or omissions hindered 16 the plaintiff’s “efforts to pursue a [nonfrivolous] legal claim.” Lewis v. Casey, 518 U.S. 17 343, 351 (1996); see also Phillips v. Hust, 477 F.3d 1070, 1076 (9th Cir. 2007), vacated 18 on other grounds, 555 U.S. 1150 (2009).
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Benjamin Freeman, No. CV-20-00287-TUC-RM
10 Plaintiff, ORDER
11 v.
12 David Shinn,
13 Defendant. 14 15 Pending before the Court are Plaintiff’s Motion for Issuance of Subpoena (Doc. 16 82) and Motion for Leave to File a Supplemental Complaint (Doc. 85). Defendant 17 responded to both Motions. (Docs. 83, 88.) For the following reasons, the Motions will 18 be denied. 19 I. Background 20 Plaintiff filed this action alleging constitutional violations pursuant to 42 U.S.C. § 21 1983 connected to his incarceration at Arizona State Prison Complex (“ASPC”)-Tucson. 22 (See Doc. 1.) The Court ordered Defendant Shinn in his official capacity to respond to 23 Plaintiff’s claims for prospective injunctive relief, and dismissed all other claims and 24 defendants on screening under 28 U.S.C. § 1915(A). (See Doc. 6.) 25 Plaintiff thereafter sought leave to file a First Amended Complaint (“FAC”) (Doc. 26 17) and leave to file a Supplemental Complaint (Doc. 19). The Court granted leave to 27 amend, ordered Shinn in his official capacity to answer Count I of the FAC for 28 prospective injunctive relief, and dismissed on screening all other claims and defendants 1 in the FAC. (Doc. 55; see also Docs. 56, 60.) The Court denied leave to file a 2 Supplemental Complaint, finding that the proposed Supplemental Complaint failed to 3 state a claim on which relief could be granted against any of the defendants named 4 therein. (Doc. 55; see also Doc. 20.) 5 After discovery had closed, Plaintiff filed another Motion for Leave to File 6 Supplemental Complaint (Doc. 66) and a Motion to Extend Discovery (Doc. 63). The 7 Court denied the second Motion for Leave to File Supplemental Complaint because the 8 proposed Supplemental Complaint merely repeated allegations that Plaintiff had already 9 sought to introduce in his prior Motion for Leave to File Supplemental Complaint, and 10 the Court found no basis for reconsidering its prior Order. (Doc. 78; see also Docs. 19, 11 20, 55.) The Court denied Plaintiff’s Motion to Extend Discovery without prejudice and 12 with leave for Plaintiff to file a motion pursuant to Federal Rule of Civil Procedure 56(d). 13 (Id.) 14 On September 17, 2021, Defendant Shinn filed a Motion for Summary Judgment 15 (Doc. 75.) The Court granted Plaintiff an extension of time to respond to the Motion for 16 Summary Judgment (Doc. 80), but the extended response deadline expired on November 17 22, 2021, and to date Plaintiff has not filed a response or a Rule 56(d) motion. 18 II. Motion for Issuance of Subpoena 19 Plaintiff requests that a subpoena be issued to “Warden Jeff Van Winkle Librarian 20 – Mr. Pinney, Mail & Property CO II Kinser CO II Lozano” for “25 pages of 21 medical/confidential and legal records.” (Doc. 82.) Defendant Shinn opposes the Motion, 22 arguing that (1) Plaintiff could have sought a further extension of the discovery deadline 23 of June 17, 2021, but he failed to do so, (2) Plaintiff could have served a request for 24 production before expiration of the discovery deadline and could have requested copies 25 of his medical records by following prison policy; and (3) Defendant’s Motion for 26 Summary Judgment is now pending and Plaintiff has not shown, pursuant to Federal Rule 27 of Civil Procedure 56(d), that he “cannot present facts essential to justify [his] 28 opposition” without the sought-after documents. (Doc. 83.) In reply, Plaintiff contends 1 that he has exhausted prison procedures for obtaining the records and that the records 2 were unconstitutionally confiscated. (Doc. 87.) 3 Federal Rule of Civil Procedure 45 governs the issuance of subpoenas. A 4 subpoena “may command a person to attend a trial, hearing, or deposition” or produce 5 “documents, electronically stored information, or tangible things.” Fed. R. Civ. P. 6 45(c)(1)-(2). 7 General Order 18-19 sets forth the procedural requirements for pro se litigants 8 who wish to serve subpoenas. Pro se litigants must (1) file a motion “in writing, (2) attach 9 a copy of the proposed subpoena, (3) set forth the name and address of the witness to be 10 subpoenaed and the custodian and general nature of any documents requested, and (4) 11 state with particularity the reasons for seeking the testimony and documents.” Gen. Ord. 12 18-19. Requests for subpoenas that do not comply with these requirements will be 13 denied. See Withers v. Beecken Petty O'Keefe & Co., No. CV1703391PHXDWLJZB, 14 2019 WL 1153440, at *2 (D. Ariz. Mar. 13, 2019). 15 Discovery in this matter closed on June 17, 2021. (Docs. 39, 78.) Plaintiff has not 16 moved for relief under Federal Rule of Civil Procedure 56(d), nor has he shown in his 17 Motion for Issuance of Subpoena that the documents at issue are necessary for him to 18 present facts in opposition to Defendants’ Motion for Summary Judgment. Moreover, 19 although Plaintiff asserts that he exhausted the prison procedures for requesting the 20 documents, he provides no evidence to support this assertion. Lastly, Plaintiff has not 21 complied with the requirements of General Order 18-19 because he has not attached a 22 copy of a proposed subpoena nor stated with particularity the reasons for seeking the 23 documents. Accordingly, the Motion for Issuance of Subpoena will be denied. 24 III. Motion for Leave to File a Supplemental Complaint 25 Plaintiff’s Motion seeks leave to file a Supplemental Complaint based on 26 allegations that his medical/legal records relevant to this lawsuit were illegally 27 confiscated. (Doc. 85.) On February 4, 2022, Defendant Shinn filed a Response (Doc. 88) 28 and a Notice of Service of Confiscated Records (Doc. 89), in which he avers that the 1 documents that were the subject of the Motion for Leave to File a Supplemental 2 Complaint were served on Plaintiff. In Reply, Plaintiff states that the documents Shinn 3 produced are “a copy of the original set” and that he is requesting a copy of the medical 4 records that were confiscated. (Doc. 90.) However, Plaintiff does not differentiate 5 between the “original set” and the confiscated records. (Id.) Nor does he contend that the 6 copy Shinn provided to him is inadequate or incomplete in any way. (Id.) Accordingly, 7 the Court credits Defendant Shinn’s averment that Plaintiff’s medical records have been 8 produced. (See Doc. 89.) 9 Because Plaintiff now has his medical records in his possession, the Motion for 10 Leave to File a Supplemental Complaint is moot to the extent the proposed Supplemental 11 Complaint requests injunctive relief. To the extent the proposed Supplemental Complaint 12 requests monetary damages, it fails to state a claim on which relief can be granted, as it 13 fails to allege actual injury from the temporary confiscation of Plaintiff’s records.1 14 To prevail on an access-to-courts claim, a plaintiff must, among other elements, 15 establish “actual injury” by demonstrating that the defendants’ acts or omissions hindered 16 the plaintiff’s “efforts to pursue a [nonfrivolous] legal claim.” Lewis v. Casey, 518 U.S. 17 343, 351 (1996); see also Phillips v. Hust, 477 F.3d 1070, 1076 (9th Cir. 2007), vacated 18 on other grounds, 555 U.S. 1150 (2009). Here, Defendant’s Motion for Summary 19 Judgment remains pending, and although Plaintiff alleges in his proposed Supplemental 20 Complaint that the confiscation of his records prevented him from responding to the 21 Motion for Summary Judgment, the confiscation did not prevent Plaintiff from filing a 22 further motion to extend his response deadline, nor did it prevent him from filing a 23 motion seeking relief under Federal Rule of Civil Procedure 56(d). Plaintiff may still 24 seek permission to file an untimely response upon a showing of good cause for his delay.2
25 1 Furthermore, the proposed Supplemental Complaint impermissibly “introduce[s] a separate, distinct[,] and new cause of action.” Planned Parenthood of S. Ariz. v. Neely, 26 130 F.3d 400, 402 (9th Cir. 1997) (internal quotation marks omitted). 2 Plaintiff’s proposed Supplemental Complaint also alleges that his lack of access to the 27 records interfered with his ability to file a clemency application. (See Doc. 86 at 3-4.) However, the right of access to the courts does not implicate clemency proceedings in 28 Arizona, as those occur outside of the courts. See Lewis, 518 U.S. at 351 (“meaningful access to the courts is the touchstone” of the right to access the courts); Schad v. Brewer, 1 Because Plaintiffs proposed Supplemental Complaint fails to state a claim on 2|| which relief can be granted, Plaintiffs Motion for Leave to File a Supplemental 3 || Complaint will be denied. 4 Accordingly, 5 IT IS ORDERED that the Motion for Issuance of Subpoena (Doc. 82) and 6 || Motion for Leave to File a Supplemental Complaint (Doc. 85) are denied. 7 Dated this 4th day of March, 2022. 8 9 0 GH ll WNGUME DL Honorable Rostsiary □□□□□□□ 12 United States District □□□□□ 13 14 15 16 17 18 19 20 21 22 23 24 25 26 |p — 732 F.3d 946, 947 (9th Cir. 2013) (“The Clemency Board in Arizona is appointed by the Governor and issues recommendations to the Governor. The Governor may srant clemency only when the Board recommends it.) Furthermore, Plaintiff does not allege 28] that his clemency application was denied or otherwise hindered due to his inability to attach the records.
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