(PC) Head v. County of Sacramento

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA CHARLES HEAD, No. 2: 19-cv-1663 TLN KJN P 12 Plaintiff, 13 v. ORDER COUNTY OF SACRAMENTO, et al.

15 Defendants.

17 Plaintiff is a federal prisoner, proceeding without counsel, with this civil action. Pending before the court are plaintiff’s requests for issuance of subpoenas filed September 28, 2021, and October 18, 2021. (ECF Nos. 78, 81.) For the reasons stated herein, these requests are denied.

20 Background 21 This action proceeds on plaintiff’s first amended complaint filed October 15, 2020, against defendants Sacramento County Deputy Sheriff Shelton and Assistant United States Attorney Endrizzi. (ECF No. 39.) Plaintiff alleges that defendant Shelton provided defendant Endrizzi with recordings of privileged telephone calls between plaintiff and his lawyer while plaintiff was housed in the Sacramento County Jail during criminal proceedings. Plaintiff alleges that the purpose of these disclosures was to give defendant Endrizzi an unfair advantage in the prosecution of plaintiff in two criminal trials held in the United States District Court for the Eastern District of California.

1 This action proceeds on plaintiff’s claims that defendant Shelton violated the Wiretap Act and that defendant Endrizzi violated the Wiretap Act, Stored Communications Act, California Invasion of Privacy Act, and the right to privacy in the California Constitution.

4 Discussion 5 In the request filed September 28, 2021, plaintiff requests that the court issue a subpoena, pursuant to Federal Rule of Civil Procedure 45, directing Acting United States Attorney Talbert to provide plaintiff with recordings of all telephone calls (and any other related materials) acquired by defendant Endrizzi from defendant Shelton during the time alleged in the amended complaint. (ECF No. 78.) Plaintiff also requests that the court issue a subpoena directing Acting United States Attorney Talbert to provide him with any discipline records regarding defendant Endrizzi. (Id.) Plaintiff alleges that because defendant Endrizzi is no longer employed by the United States Attorney’s Office, plaintiff has no way to obtain these documents other than by subpoena. (Id.) 14 Plaintiff’s request for subpoenas filed October 18, 2021, restates the request made in the September 28, 2021 pleading. (ECF No. 81.)

16 At the outset, the undersigned observes that in the answer, defendant Endrizzi states that she is a former Assistant United States Attorney. (ECF No. 70 at 2.) In this action, defendant Endrizzi is represented by the Office of the United States Attorney. (Id. at 1.)

19 Subpoenas under Federal Rule of Civil Procedure 45 are intended for nonparties. See Fed. R. Civ. P. 34(c). Because defendant Endrizzi is represented by the Office of the United States Attorney, plaintiff’s proposed Rule 45 subpoena is inappropriately directed to Acting United States Attorney Talbert. See Optronic Technologies, Inc. v. Ningbo Sunny Electronic Co., Ltd., 2019 WL 428782, at *2 (N.D. Cal. Feb. 4, 2019) (“A party’s documents that happen to be in the possession of a party’s counsel are generally considered within that party’s possession, custody or control for purposes of discovery from a party.) Accordingly, plaintiff’s requests for subpoenas are denied. Plaintiff may request the materials sought in the proposed subpoenas in discovery requests addressed to defendant Endrizzi, who will receive assistance from her counsel in responding to the requests. ] Accordingly, IT IS HEREBY ORDERED that plaintiff's requests for subpoenas (ECF | Nos. 78, 81) are denied.

3 | Dated: October 25, 2021 ' Foci) Aharon 5 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 7 Head 1663.sub 1]