(PC) Shockner v. Soltanian ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MANFRED SHOCKNER, No. 2: 18-cv-1948 TLN KJN P 12 Plaintiff, 13 v. ORDER 14 DR. SOLTANIAN, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. Pending before the court are several requests made by plaintiff for issuance 19 of subpoenas. 20 Background 21 This action proceeds on plaintiff’s second amended complaint filed December 26, 2018, 22 against defendants Dr. Soltanian-Zadeh, Dr. Smith and Dr. Vaughn. (ECF No. 17.) Defendants 23 are employed at Mule Creek State Prison (“MCSP”). 24 Plaintiff alleges that he is 77 years old and suffers from several medical conditions, some 25 of which cause him to suffer severe pain. (Id. at 2-3.) Plaintiff describes these conditions as: 26 1) leukocytosis, probably pseudomembranous colitis; 2) left femoral vein deep venous 27 thrombosis; 3) status post right total hip replacement; 4) severe tricompartmental degenerative 28 knee disease; 5) hypertension; 6) chronic obstructive pulmonary disease; 7) history of ulcerative 1 colitis; 8) C.O.P.D.; and 9) left knee has complex medial and lateral meniscal tear, full thickness 2 tear of ACL and partial tear of collateral ligament and mild effusion with synovitis. (Id. at 2-3.) 3 Plaintiff alleges that Dr. Ahmed at Mercy Hospital noted that plaintiff’s mesalamine dose 4 was somehow reduced from 1200 mg to 400 mg. (Id. at 3.) Dr. Ahmed restarted plaintiff at 1200 5 mg. 3 times per day. (Id.) Plaintiff’s pain medication was 12.5 mg. of methadone and Tylenol # 6 3. (Id.) 7 Plaintiff alleges that because of his extreme conditions, he was put on the Disability 8 Placement Program (“DPP”) for mobility impaired inmates. (Id.) Plaintiff alleges that he had the 9 following comprehensive accommodation chronos: ground floor housing, bottom bunk housing, 10 wrist splints, a single point cane, a mobility impaired garment, an extra mattress, extra pillow, 11 physical limitations to job assignments based on terrain level, no climbing and no lifting greater 12 than 20 pounds, an accommodation noting it was difficult for plaintiff to get down on the ground 13 for code responses, and plaintiff must wear mobility vest and carry his chrono. (Id.) 14 Plaintiff alleges that his severe pain has been constant and alleviated by specific 15 medications prescribed at previous prisons. (Id.) Plaintiff alleges that upon arriving at MCSP, 16 plaintiff’s pain medications were stopped. (Id.) Plaintiff alleges that his physical conditions that 17 caused the pain did not stop, so his pain still existed. (Id.) Plaintiff alleges that defendant 18 Soltanian-Zadeh made the decision to discontinue his previously prescribed pain medication, i.e., 19 methadone. (Id.) Plaintiff alleges that defendant Soltanian-Zadeh denied his pain medication, 20 stating, “CDCR is not responsible to treat you for anything except to allow you to eat, shit and 21 take care of yourself.” (Id. at 4.) 22 Plaintiff alleges that defendant Smith approved defendant Soltanian-Zadeh’s decision to 23 discontinue plaintiff’s pain medication when he signed plaintiff’s grievance. (Id. at 3.) 24 Plaintiff alleges that he was moved to a different yard (E Yard) and assigned defendant 25 Vaughn as his new Primary Care Physician (“PCP”). (Id. at 4.) Plaintiff alleges that at his 26 previous yard, i.e., MCSP C-yard, plaintiff purchased an orthopedic mattress with his own 27 money. (Id.) Plaintiff alleges that when he transferred to E yard, plaintiff was not allowed to 28 have his orthopedic mattress. (Id. at 4-5.) Plaintiff alleges that the mattress is being held in 1 Receiving and Release (“R & R”). (Id. at 5.) Plaintiff alleges that correctional officers told him 2 that he needed a chrono from his PCP in order to receive the mattress. (Id.) Plaintiff alleges that 3 defendant Vaughn repeatedly denied his requests for a chrono to receive his mattress. (Id.) 4 Plaintiff alleges that, in a separate appeal, defendant Smith approved defendant Vaughn’s 5 decision to replace plaintiff’s methadone with Tylenol and defendant Vaughn’s decision not to re- 6 new his chrono for the orthopedic mattress. (Id.) 7 Standards Governing Subpoenas 8 Under Federal Rule of Civil Procedure 45(a)(1)(D), a subpoena may direct a non-party to 9 an action to produce documents or other tangible objects for inspection. However, a party’s 10 reliance on a subpoena duces tecum is limited by the relevance standards set forth in Federal Rule 11 of Civil Procedure 26(b)(1) (“[p]arties may obtain discovery regarding any nonprivileged matter 12 that is relevant to any party's claims or defense”) and by the court’s duty under Federal Rule of 13 Civil Procedure 45(d)(1) to ensure that a subpoena does not impose “undue burden or expense on 14 a person subject to the subpoena.” 15 “The ‘Federal Rules of Civil Procedure were not intended to burden a non-party with a 16 duty to suffer excessive or unusual expenses in order to comply with a subpoena duces tecum.’” 17 Heilman v. Lyons, 2010 WL 5168871, at *1 (E.D. Cal. Dec. 13, 2010) (quoting Badman v. Stark, 18 139 F.R.D. 601, 605 (M.D.Pa.1991) (requiring indigent plaintiff to demonstrate that he had 19 “made provision for the costs of such discovery”); see also United States v. Columbia Broad. 20 Sys., Inc., 666 F.2d 364, 368–69 (9th Cir. 1982) (court may award costs of compliance with 21 subpoena to non-party); Fed.R.Civ.P. 45(d)(1) (“A party ... responsible for issuing and serving a 22 subpoena must take reasonable steps to avoid imposing undue burden or expense on a person 23 subject to the subpoena. The court ... must enforce this duty and impose an appropriate sanction— 24 which may include lost earnings and reasonable attorney's fees—on a party ... who fails to 25 comply.”). 26 Plaintiff is responsible for paying all fees and costs associated with the subpoenas 27 regardless of his in forma pauperis status. Tedder v. Odel, 890 F.2d 210, 211–12 (9th Cir. 1989). 28 //// 1 Motion for Approval of Subpoenas (ECF No. 116) 2 Plaintiff requests that the court approve subpoenas previously submitted in ECF No. 110. 3 In ECF No. 110, plaintiff states that he submitted four subpoenas for the court’s approval. (ECF 4 No. 110 at 1.) Plaintiff did not attach his proposed subpoenas to ECF No. 110. However, in the 5 pending motion for approval of subpoenas, plaintiff indicates that the subpoenas are addressed to 6 defendants. (ECF No. 116 at 1.) 7 The undersigned previously informed plaintiff that Federal Rule of Civil Procedure 45(a) 8 provides that parties to a case may obtain discovery from non-parties through a subpoena. (ECF 9 No. 98 at 19.) Rule 45(a) does not apply to discovery from a party. See Lee v. Multnomah 10 County Mental Health Department in County Detention Center, 2018 WL 5848971, at *1 (D. 11 Ore. Nov. 7, 2018) (citing Wirtz v. Local Union 169, Intern. Hod Carriers’ Bldg. and Common 12 Laborers’ Union of America, AFL-CIO, 37 F.R.D. 349, 351 (D. Nev. 1965) (subpoena duces 13 tecum is not intended as substitute for request to produce where subpoena requires production of 14 documents under control of party as distinguished from independent witness). 15 Plaintiff’s motion for subpoenas is denied as it improperly seeks documents from 16 defendants. 17 Motion for Subpoena (ECF No. 117) 18 Attached to the pending motion are two subpoenas addressed to the Mule Creek State 19 Prison (“MCSP”) Litigation Coordinator. In the first subpoena, plaintiff requests, 20 All copies of policy and procedures for establishing medical budget and assigning it to each individual physician and distribution of 21 savings, as bonus’s to each physician. Also requested is the amount distributed to Dr. Smith, Vaughn and Soltanian for the period of 2013 22 to 2018. 23 (ECF No. 117 at 2.) 24 The undersigned finds that the policies and procedures regarding the medical budget and 25 distribution of bonuses for apparently every physician employed by CDCR are not relevant to this 26 action. In addition, the medical budget and bonuses allegedly assigned to the defendants from 27 2013 to 2018 is not relevant to this action. On these grounds, plaintiff’s request for the subpoena 28 described above is denied. 1 In the second subpoena, plaintiff requests, “Copies of the investigation of Dr. Soltanian 2 ordered by Sacramento response to MCSP-HC-14045841, 602, dated 5-18-2015.” (Id. at 4.) 3 Plaintiff made no showing why he could not obtain these documents by way of discovery 4 propounded on defendant Soltanian-Zadeh.1 Accordingly, plaintiff’s request to subpoena these 5 documents from the MCSP Litigation Coordinator is denied. 6 Motion for Subpoenas (ECF No. 119) 7 Plaintiff requests that the court issue the subpoenas requested in ECF No. 110 and two 8 subpoenas submitted in December 2020. As discussed above, plaintiff’s request for the 9 subpoenas referenced in ECF No. 110 is denied because the subpoenas are addressed to 10 defendants. 11 The court record contains no request for subpoenas filed by plaintiff in December 2020. 12 However, on November 9, 2020, plaintiff filed a request for issuance of subpoenas. (ECF No. 13 78.) On July 28, 2021, the undersigned denied this request. (ECF No. 98.) 14 Attached to the pending motion is a subpoena addressed to the Valley State Prison 15 Litigation Coordinator. (ECF No. 119 at 2.) In this request plaintiff seeks, 16 Copies of annual evaluations of all CDCR Prison Medical Facilities which lists them in order of their overall performance, from best to 17 worst. This request is for the period/years 2015 through 2019, within thirty days of approval of the court. 18 19 (Id.) 20 The undersigned finds that the annual evaluation of every CDCR Medical Facility from 21 2015 through 2019 is not relevant to this action. Accordingly, plaintiff’s request to subpoena 22 these documents from the Valley State Litigation Coordinator is denied. 23 Request for Subpoenas (ECF No. 123) 24 Plaintiff requests that the court issue to plaintiff “ten each pre-approved by the court 25 subpoenas.” (ECF No. 123 at 1.) Plaintiff does not address to whom the subpoenas are addressed 26 nor the evidence he seeks in the requested subpoenas. Accordingly, this request for subpoenas is 27 1 The undersigned separately recommended that the claim against defendant Soltanian-Zadeh 28 and related claim against defendant Smith be dismissed as barred by the statute of limitations. 1 | denied. 2 Accordingly, IT IS HEREBY ORDERED that plaintiff's requests for subpoenas (ECF 3 | Nos. 116, 117, 119 and 123) are denied. 4 || Dated: March 18, 2022 Foci) Aharon 6 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 7 8 9 10 1] 12 Shock 1948.sub(2) 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28