(PC) Matlock v. Kern County ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD A. MATLOCK, Case No. 1:19-cv-01368-NONE-JLT (PC) 12 Plaintiff, ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S REQUEST 13 v. FOR SUBPOENA 14 KERN COUNTY, et al., FINDINGS AND RECOMMENDATIONS TO DISMISS NON-COGNIZABLE 15 Defendants. CLAIMS 16 (Doc. 29) 17 14-DAY DEADLINE 18 19 The Court screened the first amended complaint and found it stated a cognizable 20 Fourteenth Amendment failure to protect claim against John Does #1, #2, and #3. (Doc. 18 at 8.) 21 Plaintiff has now indicated his intent to proceed on the first amended complaint as screened. 22 (Doc. 29.) 23 Plaintiff has also filed a request to subpoena “the offender . . . the single Doe Defendant.” 24 The Court’s authorization of a subpoena duces tecum requested by an inmate is subject to 25 limitations. Because personal service of a subpoena duces tecum is required under Federal Rule 26 of Civil Procedure 45(b), “[d]irecting the Marshal's Office to expend its resources personally 27 serving a subpoena is not taken lightly by the court,” Austin v. Winett, No. 1:04-cv-05104-DLB 28 PC, 2008 WL 5213414, *1 (E.D. Cal. Dec. 12 2008); 28 U.S.C. § 1915(d). Limitations include 1 the relevance of the information sought as well as the burden and expense to the non-party in 2 providing the requested information. Fed. R. Civ. P. 26, 45. A motion for issuance of a subpoena 3 duces tecum should be supported by clear identification of the documents sought and a showing 4 that the records are obtainable only through the identified third party. See, e.g., Davis v. Ramen, 5 No. 1:06–cv–01216–AWI–SKO PC, 2010 WL 1948560, *1 (E.D. Cal. May 10, 2010); Williams 6 v. Adams, No. 1:05–cv–00124–AWI–SMS PC, 2010 WL 148703, *1 (E.D. Cal. Jan. 14, 2010). 7 The “Federal Rules of Civil Procedure were not intended to burden a non-party with a duty to 8 suffer excessive or unusual expenses in order to comply with a subpoena duces tecum.” Badman 9 v. Stark, 139 F.R.D. 601, 605 (M.D. Pa. 1991). Non-parties are “entitled to have the benefit of 10 this Court's vigilance” in considering these factors. Id. 11 Plaintiff’s allegations in the pleading are not sufficiently specific for the Court to issue a 12 subpoena, and therefore, the request is denied without prejudice. 13 Accordingly, the Court RECOMMENDS that this action proceed on an Eighth 14 Amendment claim against John Does #1–3, and that all other claims and defendants be dismissed. 15 These findings and recommendations will be submitted to the United States District Judge 16 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 17 after being served with these findings and recommendations, Plaintiff may file written objections 18 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings 19 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 20 time may result in waiver of the right to appeal the district court’s order. Martinez v. Ylst, 951 21 F.2d 1153 (9th Cir. 1991). 22 IT IS SO ORDERED. 23 24 Dated: August 30, 2021 _ /s/ Jennifer L. Thurston CHIEF UNITED STATES MAGISTRATE JUDGE 25 26 27 28