1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSHUA FORSTER, Case No.: 1:22-cv-01191-ADA-CDB (PC) 12 Plaintiff, ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S REQUEST 13 v. FOR A COURT ORDER RE SUBPOENAS
14 STEPHANIE CLENDENIN, et al., (Doc. 29)
15 Defendants.
16 17 Plaintiff Joshua Forster is a civil detainee proceeding pro se and in forma pauperis in this 18 civil rights action brought pursuant to 42 U.S.C. § 1983. This action proceeds against Defendants 19 Clendenin and Price for violations of Plaintiff’s Fourteenth Amendment rights and related state 20 law violations. 21 I. RELEVANT PROCEDURAL BACKGROUND 22 On July 24, 2023, this Court issued its Order Referring Case to Post-Screening ADR and 23 Staying Case for 90 Days. (Doc. 17.) While Plaintiff indicated a willingness to participate in an 24 early settlement conference (Doc. 18), Defendants opted out (Doc. 26). 25 On September 13, 2023, the Court lifted the previously imposed stay (Doc. 27) and issued 26 its Discovery and Scheduling Order (Doc. 28). 27 On September 22, 2023, Plaintiff filed a document titled “Request For A Court Order: Ex Parte.” (Doc. 29.) 1 II. DISCUSSION 2 Plaintiff seeks an order directing the “Clerk of the Court to issue six (6) subpoenas, signed 3 and stamped by the Clerk and sent to the Plaintiff.” (Doc. 29.) Plaintiff further seeks an “order for 4 the U.S. Marshall’s Service to serve the Subpoenas to the appropriate party” and that “the order 5 be good through the duration of this matter.” (Id.) Lastly, Plaintiff requests “the Court provide the 6 Plaintiff with the U.S. Marshall’s Service address.” (Id.) 7 Although Plaintiff does not reference any specific rule in the Federal Rules of Civil 8 Procedure, the Court construes his request to arise under Federal Rule of Civil Procedure 45. 9 Federal Rule of Civil Procedure 451 governs subpoenas, which are the mechanism for 10 obtaining discovery and testimony from non-parties. A subpoena may be issued by the Court, the 11 Clerk of Court, or an attorney as an officer of the Court for witnesses and documents found 12 within its jurisdiction. See Fed. R. Civ. P. 45(a)(2), (3). Although Rule 45(a)(3) provides that 13 “[t]he clerk must issue a subpoena, signed but otherwise blank, to a party who requests it,” 14 Plaintiff has not provided enough information for the Court to grant his request. 15 Rule 26(b)(1) establishes the scope of discovery, stating in pertinent part: 16 Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the 17 needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access 18 to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense 19 of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to 20 be discoverable. 21 Fed. R. Civ. P. 26(b). These standards mean that the Court may grant a request by Plaintiff to 22 issue a Rule 45 subpoena to a properly identified non-party to discover information that is 23 relevant to the party’s claims or defenses, is not burdensome, and is not within Plaintiff’s 24 reasonable access, upon a sufficient showing of the importance of the information.
25 1 Rule 45 of the Federal Rules of Civil Procedure permits issuance of subpoenas to obtain 26 discovery from non-parties equivalent to discovery from parties under Rule 34. See Adv. Comm. Note to 1991 Amendment to FRCP 45. Rule 34 governs discovery of designated documents, electronically stored 27 information, and designated tangible things subject to the provisions of Federal Rule of Civil Procedure 26(b). Meeks v. Parsons, No. 1:03-cv-6700-LJO-GSA, 2009 WL 3003718, at *2 (E.D. Cal. Sept. 18, 2009) (citing Fahey v. United States, 18 F. R. D. 231, 233 (S.D.N.Y. 1955)). 1 Plaintiff has specified he wants six subpoenas. (Doc. 29.) However, Plaintiff has failed to 2 indicate to whom he intends to direct the subpoenas. Plaintiff has also failed to indicate whether 3 he is seeking documents, testimony, or both from the non-parties2 to be served with the 4 subpoenas. Nor has Plaintiff made any showing of relevancy of the information sought as it 5 relates to his claims or the importance of that information. It is also unclear— if Plaintiff is 6 seeking documents only— whether the documents sought from the non-party are equally 7 available to Plaintiff and are not obtainable from Defendants through a request for the production 8 of documents. See Fed. R. Civ. P. 34. Simply put, more information is required. 9 Plaintiff must identify the individuals he intends be served with the Rule 45 subpoenas he 10 seeks. He must identify what testimony or documents he is seeking from each individual 11 identified. If Plaintiff seeks documents only, Plaintiff must also make a showing that the 12 discovery he seeks from third parties or non-parties cannot be obtained from Defendants through 13 a request for production of documents. See Hazeltine v. Young, No. 18-16565, 793 Fed. App’x 14 647, 648 (9th Cir. 2020) (“The district court did not abuse its direction by requiring that Hazeltine 15 seek discovery from the defendants before the court would issue subpoenas …”). 16 “Expenditure of public funds [on behalf of an indigent litigant] is proper only when 17 authorized by Congress ....” United States v. MacCollom, 426 U.S. 317, 321 (1976). A plaintiff 18 who proceeds in forma pauperis is “generally entitled to obtain service of a subpoena duces 19 tecum by the United States Marshal. 28 U.S.C. § 1915(d).” Heilman v. Lyons, No. 2:09-cv-2721 20 KJN P, 2010 WL 5168871, at *1 (E.D. Cal. 2010).3 However, Plaintiff is obligated to pay witness 21 fees and/or costs and to tender payment concurrently with the subpoena. See Tedder v. Odel, 890 22 F.3d 210, 211-212 (9th Cir. 1989) (IFP status of civil rights plaintiff did not exempt him from 23 requirement that witness fees be tendered with subpoena). And witness fees cannot be waived. Id.
24 2 Subpoenas duces tecum generally apply to non-parties (i.e., “persons”) as opposed to parties, like the Defendants. See Fed. R. Civ. P. 45(a); C. Wright & A. Miller, Federal Practice and Procedure § 2107 25 (“Though the rules do not say so expressly, a subpoena is not necessary if the person [from whom 26 documents are sought] is a party”). Indeed, the Federal Rules of Civil Procedure
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSHUA FORSTER, Case No.: 1:22-cv-01191-ADA-CDB (PC) 12 Plaintiff, ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S REQUEST 13 v. FOR A COURT ORDER RE SUBPOENAS
14 STEPHANIE CLENDENIN, et al., (Doc. 29)
15 Defendants.
16 17 Plaintiff Joshua Forster is a civil detainee proceeding pro se and in forma pauperis in this 18 civil rights action brought pursuant to 42 U.S.C. § 1983. This action proceeds against Defendants 19 Clendenin and Price for violations of Plaintiff’s Fourteenth Amendment rights and related state 20 law violations. 21 I. RELEVANT PROCEDURAL BACKGROUND 22 On July 24, 2023, this Court issued its Order Referring Case to Post-Screening ADR and 23 Staying Case for 90 Days. (Doc. 17.) While Plaintiff indicated a willingness to participate in an 24 early settlement conference (Doc. 18), Defendants opted out (Doc. 26). 25 On September 13, 2023, the Court lifted the previously imposed stay (Doc. 27) and issued 26 its Discovery and Scheduling Order (Doc. 28). 27 On September 22, 2023, Plaintiff filed a document titled “Request For A Court Order: Ex Parte.” (Doc. 29.) 1 II. DISCUSSION 2 Plaintiff seeks an order directing the “Clerk of the Court to issue six (6) subpoenas, signed 3 and stamped by the Clerk and sent to the Plaintiff.” (Doc. 29.) Plaintiff further seeks an “order for 4 the U.S. Marshall’s Service to serve the Subpoenas to the appropriate party” and that “the order 5 be good through the duration of this matter.” (Id.) Lastly, Plaintiff requests “the Court provide the 6 Plaintiff with the U.S. Marshall’s Service address.” (Id.) 7 Although Plaintiff does not reference any specific rule in the Federal Rules of Civil 8 Procedure, the Court construes his request to arise under Federal Rule of Civil Procedure 45. 9 Federal Rule of Civil Procedure 451 governs subpoenas, which are the mechanism for 10 obtaining discovery and testimony from non-parties. A subpoena may be issued by the Court, the 11 Clerk of Court, or an attorney as an officer of the Court for witnesses and documents found 12 within its jurisdiction. See Fed. R. Civ. P. 45(a)(2), (3). Although Rule 45(a)(3) provides that 13 “[t]he clerk must issue a subpoena, signed but otherwise blank, to a party who requests it,” 14 Plaintiff has not provided enough information for the Court to grant his request. 15 Rule 26(b)(1) establishes the scope of discovery, stating in pertinent part: 16 Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the 17 needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access 18 to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense 19 of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to 20 be discoverable. 21 Fed. R. Civ. P. 26(b). These standards mean that the Court may grant a request by Plaintiff to 22 issue a Rule 45 subpoena to a properly identified non-party to discover information that is 23 relevant to the party’s claims or defenses, is not burdensome, and is not within Plaintiff’s 24 reasonable access, upon a sufficient showing of the importance of the information.
25 1 Rule 45 of the Federal Rules of Civil Procedure permits issuance of subpoenas to obtain 26 discovery from non-parties equivalent to discovery from parties under Rule 34. See Adv. Comm. Note to 1991 Amendment to FRCP 45. Rule 34 governs discovery of designated documents, electronically stored 27 information, and designated tangible things subject to the provisions of Federal Rule of Civil Procedure 26(b). Meeks v. Parsons, No. 1:03-cv-6700-LJO-GSA, 2009 WL 3003718, at *2 (E.D. Cal. Sept. 18, 2009) (citing Fahey v. United States, 18 F. R. D. 231, 233 (S.D.N.Y. 1955)). 1 Plaintiff has specified he wants six subpoenas. (Doc. 29.) However, Plaintiff has failed to 2 indicate to whom he intends to direct the subpoenas. Plaintiff has also failed to indicate whether 3 he is seeking documents, testimony, or both from the non-parties2 to be served with the 4 subpoenas. Nor has Plaintiff made any showing of relevancy of the information sought as it 5 relates to his claims or the importance of that information. It is also unclear— if Plaintiff is 6 seeking documents only— whether the documents sought from the non-party are equally 7 available to Plaintiff and are not obtainable from Defendants through a request for the production 8 of documents. See Fed. R. Civ. P. 34. Simply put, more information is required. 9 Plaintiff must identify the individuals he intends be served with the Rule 45 subpoenas he 10 seeks. He must identify what testimony or documents he is seeking from each individual 11 identified. If Plaintiff seeks documents only, Plaintiff must also make a showing that the 12 discovery he seeks from third parties or non-parties cannot be obtained from Defendants through 13 a request for production of documents. See Hazeltine v. Young, No. 18-16565, 793 Fed. App’x 14 647, 648 (9th Cir. 2020) (“The district court did not abuse its direction by requiring that Hazeltine 15 seek discovery from the defendants before the court would issue subpoenas …”). 16 “Expenditure of public funds [on behalf of an indigent litigant] is proper only when 17 authorized by Congress ....” United States v. MacCollom, 426 U.S. 317, 321 (1976). A plaintiff 18 who proceeds in forma pauperis is “generally entitled to obtain service of a subpoena duces 19 tecum by the United States Marshal. 28 U.S.C. § 1915(d).” Heilman v. Lyons, No. 2:09-cv-2721 20 KJN P, 2010 WL 5168871, at *1 (E.D. Cal. 2010).3 However, Plaintiff is obligated to pay witness 21 fees and/or costs and to tender payment concurrently with the subpoena. See Tedder v. Odel, 890 22 F.3d 210, 211-212 (9th Cir. 1989) (IFP status of civil rights plaintiff did not exempt him from 23 requirement that witness fees be tendered with subpoena). And witness fees cannot be waived. Id.
24 2 Subpoenas duces tecum generally apply to non-parties (i.e., “persons”) as opposed to parties, like the Defendants. See Fed. R. Civ. P. 45(a); C. Wright & A. Miller, Federal Practice and Procedure § 2107 25 (“Though the rules do not say so expressly, a subpoena is not necessary if the person [from whom 26 documents are sought] is a party”). Indeed, the Federal Rules of Civil Procedure specifically provide a separate mechanism for obtaining document discovery from other parties by serving a document request 27 on them. See Fed. R. Civ. P. 34.
3 “As a general rule, indigent litigants bear their own litigation expenses.” Tabron v. Grace, 6 F.3d 1 In other words, while Plaintiff is not required to pay for the United States Marshal’s service to 2 serve his subpoenas, he is required to pay witness fees and/or costs to a witness entitled to them. 3 See, e.g., Badman v. Stark, 139 F.R.D. 601, 604 (M.D. Pa. 1991) (holding that an indigent 4 plaintiff seeking issuance of a subpoena must simultaneously tender the witness fees and the 5 estimated mileage allowed by law with the service of the subpoena); Cortinas v. Vasquez, No. 6 1:19-cv-00367-JLT-SKO, 2022 WL 837377, at *2 (E.D. Cal. Mar. 21, 2022) (same). Briefly 7 stated, service of a properly issued subpoena duces tecum in a civil rights action brought by a pro 8 se prisoner proceeding IFP will be served at no expense to the prisoner by the USMS. However, if 9 the subpoena involves the testimony of a witness, rather than the production of documents, the 10 prisoner plaintiff must pay any associated witness fees and costs and provide those fees and costs 11 prior to service. 12 To the extent Plaintiff requests the subpoenas “be good through the duration of this 13 matter,” that request is inappropriate. The Discovery and Scheduling Order provides deadlines for 14 the completion of discovery. And discovery will conclude prior to any dispositive motion or trial 15 proceedings that may be held in this matter. Hence, any subpoena that may issue in this action 16 will not be “good through the duration of this matter.” It would be valid during the discovery 17 period only. 18 To the extent Plaintiff requests this Court “provide the Plaintiff with the U.S. Marshall’s 19 Service address,” the request is not necessary. Should the Court issue Rule 45 subpoenas in this 20 action, the Court will direct service by the United States Marshal after it has determined Plaintiff 21 has made the required showings and Plaintiff has been directed to complete and return the 22 appropriate Rule 45 subpoenas to the Court. See, e.g., Modica v. Russell, No. 2:15-cv-00057 23 MCE AC PS, 2015 WL 13653879, at *2 & n.1 (E.D. Cal. Sept. 18, 2015) (where plaintiff made 24 the required showings, “the court will direct the Clerk of Court to issue” the subpoena and 25 plaintiff “must complete the subpoena and return it to the court to obtain personal service … by 26 the United States Marshal”); see also Heilman, 2010 WL 5168871, at *2. 27 In sum, assuming Plaintiff is seeking documents rather than testimony,4 a request for the ee nen eee I OI I OE ENE I IE IED EE
1 | issuance of a records subpoena requires Plaintiff to: (1) set forth the specific documents requested 2 | and from whom; (2) demonstrate that the documents are only obtainable through the third party; 3 || and (3) establish the relevance of the requested documents to any claim or defense. Plaintiff's 4 | instant motion will be denied without prejudice. Plaintiff may submit a motion seeking the 5 || issuance of Rule 45 subpoenas demonstrating the issuance of such subpoenas meets the 6 || requirements discussed in this order. 7 I. CONCLUSION AND ORDER 8 Accordingly, for the reasons stated above, IT IS HEREBY ORDERED that the 9 | Plaintiff's “Request For A Court Order: Ex Parte” (Doc. 29) is DENIED without prejudice. 10 | IT IS SO ORDERED. Dated: _ September 25, 2023 | Ww Vv R~ 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 testimony might be offered. To the extent Plaintiff did intend to seek a non-party’s testimony, Plaintiff is 97 || required to identify the time and place of such testimony, and if testimony is to be given at a deposition, he must state the method for recording the testimony. See Fed. R. Civ. P. 45(1)(A)Gii), and (1)(B). Further, 2g | Plaintiff must pay the related witness fees and costs in advance. Tedder, 890 F.3d at 211-212.