(PC) Howard v. Kern County Lerdo Facility Medical Cheif ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BILLY HOWARD, Case No. 1:21-cv-00931-JLT-CDB (PC) 12 Plaintiff, ORDER GRANTING PLAINTIFF’S REQUEST FOR SUBSTITUTION OF 13 v. PARTIES 14 KERN COUNTY LERDO FACILITY MEDICAL CHIEF, et al., ORDER GRANTING IN PART AND 15 DENYING IN PART PLAINTIFF’S Defendants. REQUEST FOR SUBPOENA DUCES 16 TECUM 17 (Doc. 24) 18 Clerk of Court to Update Parties and Docket 19 20 Plaintiff Billy Howard is proceeding pro se and in forma pauperis in this civil rights 21 action brought pursuant to 42 U.S.C. § 1983. 22 I. RELEVANT PROCEDURAL BACKGROUND 23 On December 5, 2022, the Court issued Findings and Recommendations to Dismiss 24 Claims and Defendant. (Doc. 19.) Specifically, it was recommended that Doe Defendant Chief 25 Medical Director be dismissed from the action, and that the claims in Plaintiff’s complaint be 26 dismissed, except for the deliberate indifference to serious medical needs claims against facility 27 nursing staff. (Id. at 2.) On December 28, 2022, District Judge Jennifer L. Thurston issued an Order Adopting 1 Findings and Recommendations Dismissing the Claim Against Defendant Kern County Lerdo 2 Facility Medical Chief and Directing the Clerk of the Court to Update the Docket. (Doc. 20.) The 3 Kern County Lerdo Facility Medical Chief was dismissed as a defendant, the Clerk of the Court 4 was directed to terminate that individual as a defendant, and the action was to proceed upon 5 Plaintiff’s claim of deliberate indifference to serious medical needs against facility nursing staff. 6 (Id. at 2.) 7 On January 5, 2023, the Court issued its Order Granting Plaintiff 90 Days To Identify Jane 8 Does. (Doc. 21.)1 9 On March 29, 2023, the Court issued its Order Denying Plaintiff’s Motion to Appoint 10 Counsel and Order Granting Extension of Time. (Doc. 23.) Relevant here, the Court granted 11 Plaintiff a 60-day extension of time within which to continue to conduct limited discovery 12 regarding the Lerdo facility nursing staff defendants, to file a motion for subpoena duces tecum, 13 and, if appropriate, to file a notice of substitution. (Id. at 4-6.) 14 On May 11, 2023, Plaintiff filed an untitled document with the Court. (Doc. 24.) Plaintiff 15 asks the Court to “substitute Jane Doe # [1] to Nurse Practitioner Ramon Mansilungan and [also] 16 Dr. Lawrence Kendra as substitute for Jane Doe #2.” (Id.) Further, Plaintiff seeks a subpoena 17 duces tecum “to pretrial to get” his medical records, as well as “video from Justice Jail,” for the 18 period between December 10, 2020 and January 5, 2021. (Id.) Plaintiff states “Kern County 19 Lerdo and Jusice [sic] Medical is Run by Kern Medical Center the nurses and doctors that work 20 here in Lerdo County Jails are all from Kern Medical Center that’s why they tell me I have to get 21 my records by KMC.” (Id.) 22 II. DISCUSSION 23 Request for Substitution 24 Plaintiff seeks to substitute Ramon Mansilungan for Doe Defendant 1 and Lawrence 25 Kendra for Doe Defendant 2. (Doc. 24.) 26 Federal Rule of Civil Procedure 15(c), Relation Back of Amendments, provides: 27 1 Plaintiff’s complaint does not expressly reference the gender of any unidentified Lerdo facility nursing staff defendant. Rather, Plaintiff’s complaint refers to “a nurse” or “the nurse” in relating several alleged 1 (1) When an Amendment Relates Back. An amendment to the pleading relates back to the date of the original pleading when: 2 (C) the amendment changes the party or the naming of the party 3 against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons 4 and complaint, the party to be brought in by amendment: 5 (i) received such notice of the action that it will not be prejudiced in defending on the merits; and 6 (ii) knew or should have known that the action would have been 7 brought against it, but for mistake concerning the proper party's identity. 8 Plaintiff identifies two of the potential Doe Defendants by name: Ramon Mansilungan and 9 Lawrence Kendra. (Doc. 24). Although Plaintiff did not submit a proposed amended complaint 10 identifying the defendants by name within the pleading as contemplated in Rule 15(c) and Local 11 Rule 220, the January 5, 2023, Order did not require him to do so. (See Doc. 21); see also Local 12 Rule 220 (E.D. Ca. 2019) (stating in relevant part that “changed pleadings” shall refer to the 13 amended and supplemental pleadings and unless prior approval to the contrary is obtained, every 14 pleading to which an amendment or supplement is permitted as a matter of right or has been 15 allowed by the court order shall be typed and filed so that it is complete in itself without 16 preference to the prior or superseded pleading....”). 17 A review of the complaint shows Plaintiff identifies the Lerdo facility nursing staff 18 defendants with sufficient facts directed at each individual regarding their involvement in the 19 alleged deliberate indifference to serious medical needs at issue. (Doc. 1.) The deliberate 20 indifference to serious medical needs at issue happened in a continuum between approximately 21 December 2020 and January 2021 involving several unidentified medical staff at the facility. (Id. 22 at 3-5.) Thus, the filing of an amended complaint to merely substitute the names of Doe 23 Defendants 1 and 2 is unnecessary. 24 Accordingly, the original complaint will remain the operative complaint in this action and 25 the Court will substitute Doe Defendants 1 and 2 for the named defendants Plaintiff identifies. 26 See, e.g., Cantu v. Doe 1, No. 1:20-cv-00386-HBK, 2021 WL 2822531, at *1-2 (E.D. Cal. July 7, 27 2021); Altheide v. Williams, No. 2:17-cv-02821JCM-BNW, 2020 WL 42462 * 1 (D. Nevada Jan. 1 3, 2020) (similarly treating previously filed complaint as the operative complaint but substituting 2 named-defendants for the John Doe Defendants). 3 Request for Subpoena Duces Tecum 4 Plaintiff seeks a subpoena duces tecum directed to Kern Medical for his medical records 5 and for video footage, for the period between December 10, 2020 and January 5, 2021. (Doc. 24.) 6 Plaintiff’s request will be granted in part and denied in part. 7 The Court's authorization of a subpoena duces tecum requested by an in forma pauperis 8 plaintiff is subject to limitations. Because personal service of a subpoena duces tecum is required, 9 Federal Rule of Civil Procedure 45(b), “[d]irecting the Marshal’s Office to expend its resources 10 personally serving a subpoena is not taken lightly by the court.” Austin v. Winett, No. 1:04-cv- 11 05104-DLB PC, 2008 WL 5213414, *1 (E.D. Cal. Dec. 12, 2008); 28 U.S.C. § 1915(d). 12 Limitations include the relevance of the information sought as well as the burden and expense to 13 the non-party in providing the requested information. Fed. R. Civ. P. 26, 45. A motion for 14 issuance of a subpoena duces tecum should be supported by clear identification of the documents 15 sought and a showing that the records are obtainable only through the identified third party. See, 16 e.g., Davis v. Ramen, No. 1:06-cv-01216-AWI-BAM, 2010 WL 1948560, *1 (E.D. Cal. May 11, 17 2010); Williams v. Adams, No. 1:05-cv-00124-AWI-SMS, 2010 WL 148703, *1 (E.D. Cal. Jan. 18 14, 2010). The “Federal Rules of Civil Procedure were not intended to burden a non-party with a 19 duty to suffer excessive or unusual expenses in order to comply with a subpoena duces tecum.” 20 Badman v. Stark, 139 F.R.D. 601, 605 (M.D. Pa. 1991). Non-parties are “entitled to have the 21 benefit of this Court's vigilance” in considering these factors. Id. 22 The Court is aware of the previous efforts Plaintiff made to obtain copies of his medical 23 records, without the assistance of the Court. Those efforts have proven unsuccessful. The Court 24 finds the medical records sought are relevant to Plaintiff’s prosecution of this action, and, under a 25 liberal construction of the filing, the motion is sufficiently specific to clearly identify the 26 information sought. However, the Court finds the video footage “from Justice Jail,” as Plaintiff 27 identifies it, does not appear relevant to Plaintiff’s prosecution of this action nor is it sufficiently 1 identify the medical staff, or unknown nursing staff defendants, involved in Plaintiff’s care. 2 III. CONCLUSION AND ORDER 3 Accordingly, and for the reasons stated above, IT IS HEREBY ORDERED that: 4 1. Plaintiff’s request to substitute Doe Defendants 1 and 2 (Doc. 24) is GRANTED. The 5 Clerk of the Court is DIRECTED to add Ramon Mansilungan and Lawrence Kendra 6 to the caption for this action; 7 2. Plaintiff’s request for subpoena duces tecum (Doc. 24) is GRANTED in part and 8 DENIED in part consistent with this Order; 9 3. The Clerk of the Court shall forward the following documents to the United States 10 Marshal’s Service (USM): 11 a. One completed and issued subpoena duces tecum to be served on: 12 Kern Medical 13 Medical Records Department 14 1700 Mount Vernon Avenue 15 Bakersfield, CA 93306 16 b. One copy of Plaintiff’s complaint (Doc. 1); 17 c. One completed USM-285 form; and 18 d. Two copies of this Order, one to accompany the subpoena and one for the 19 USM; 20 4. In completing the subpoena, the Clerk of the Court shall list, as described here, the 21 documents requested: 22 Medical records pertaining to Plaintiff Billy Reo Howard, Date of Birth: 23 2/6/1971, for treatment provided between December 2020 and January 2021, 24 including documents identifying the names of nurses or other medical 25 professionals who are employed by Kern Medical and work at the Lerdo 26 Justice Facility and who provided treatment to Plaintiff during the period 27 between December 2020 and January 2021 1 subpoena in accordance with the provisions of Rule 45 of the Federal Rules of Civil 2 Procedure; 3 6. The USM shall effect personal service of the subpoena duces tecum, along with a copy 4 of this Order and a copy of the complaint, upon the individual or entity named in the 5 subpoena pursuant to Rule 45 of the Federal Rules of Civil Procedure and 28 U.S.C. § 6 566(c); 7 7. Within ten days after personal service is effected, the USM shall file the return of 8 service, along with the costs subsequently incurred in effecting service, and said costs 9 shall be enumerated on the USM-285 form; and 10 8. Within thirty days after service is effected, Kern Medical is directed to serve the 11 responsive documents on Plaintiff: b Billy Howard 2324590 13 Kern County Jail 17695 Industrial Farm Road 14 Bakersfield, CA 93308 15 9. Within fourteen days upon receipt of the documents identifying the remaining 16 unknown Lerdo facility nursing staff defendants, Plaintiff is directed to submit a 17 notice with the Court, upon which he will then be directed to submit documents 18 necessary to effectuate service. 19 | ITIS SO ORDERED. 20 | Dated: _May 12, 2023 | Mr ha UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28