(PC) Miles v. Fresno County Medical WellPath

6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA SAMUEL JAY MILES, 1:22-cv-01105-SKO (PC) 10 Plaintiff, ORDER GRANTING REQUEST FOR SUBPOENA DUCES TECUM 11 v. (Doc. 13) FRESNO COUNTY MEDICAL WELLPATH, Defendant.

16 Plaintiff Samuel Jay Miles, a previous Fresno County Jail inmate and current state prisoner, is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 18 U.S.C. § 1983.

19 I. RELEVANT BACKGROUND 20 Plaintiff filed a first amended complaint on July 25, 2023. (Doc. 9.) Plaintiff named, in part, John or Jane Does 1 and 2, nurses at the Fresno County Jail, as defendants in this action. (Id. at 4.)

23 In its Second Screening Order issued February 14, 2024, the Court found Plaintiff stated cognizable medical deliberate indifference claims against Defendants Doe 1 and Doe 2 and physical therapists “Ken” and “Michealla.” (Doc. 10.) On February 15, 2024, the Court issued its Order Granting Plaintiff Ninety Days to Identify John or Jane Does 1 and 2. (Doc. 11.) On April 24, 2024, Plaintiff filed a document titled “Notice of Substitution.” (Doc. 13.)

1 II. DISCUSSION 2 Plaintiff asks this Court to issue a subpoena “so that [he] may substitute the names of John and Jane Does 1 and 2.” (Doc. 13 at 1.) He also asks the Court “to make available the last names of Ken and Michaela,1 physical therapists who are contracted by Wellpath through the Fresno County Jail.” (Id. at 2.) Plaintiff “ask[s] for this order to provide the courts with the correct names of John or Janes Does, the defendants, so the docket may be updated and accurate.” (Id.) Plaintiff provides a series of dates when Fresno County Jail nurses or medical staff—John or Jane Does 1 and 2—failed to provide Plaintiff assistance with dressing and bathing in accordance with the treatment or care plan following a surgical procedure in May 2022, as alleged in his first amended complaint: 11 May 21, 25 and 27 of 2022 12 June 1, 2, 7, 14, 21 and 30 of 2022 13 July 1, 5, 12, 16, 19 and 22 through 31 of 2022 14 August 1, 2 and 26 of 2022 15 September 2, 9 and 23 of 2022 16 October 4 and 18 of 2022 17 November 1 and 8 of 2022 (Doc. 13 at 2.)

19 Rule 45 of the Federal Rules of Civil Procedure concerns subpoenas. As Plaintiff was previously advised, the Court’s authorization of a subpoena duces tecum requested by an in forma pauperis plaintiff is subject to limitations. Because personal service of a subpoena duces tecum is required (Fed. R. Civ. P. 45(b)), “[d]irecting the Marshal’s Office to expend its resources personally serving a subpoena is not taken lightly by the court. Austin v. Winett, No. 1:04-cv- 05104-DLB PC, 2008 WL 5213414, *1 (E.D. Cal. Dec. 12, 2008); 28 U.S.C § 1915(d).

25 Limitations include the relevance of the information sought, as well as the burden and expense to the non-party in providing the requested information. Fed. R. Civ. P. 26, 45.

1 Plaintiff’s first amended complaint asserts deliberate indifference claims against “Ken” and “Michaela” for failing to provide physical therapy in accordance with a care plan. (See Doc. 10 at 7.)

1 Plaintiff’s request of April 24, 2024, liberally construed by the Court to be a motion or request for issuance of a subpoena duces tecum, identifies the records sought: medical records, records concerning implementation of the care or treatment plan following oral surgery, and physical therapy records, which are obtainable only through the Fresno County Jail. The Court finds the records are relevant to Plaintiff’s prosecution of this action and Plaintiff’s request is sufficiently specific to warrant the issuance of a subpoena because the records sought will allow Plaintiff to learn the identifies of John and Jane Does 1 and 2, as well as the surnames of physical therapists “Ken” and “Michaela.” See, e.g., Davis v. Ramen, No. 1:06-cv-01216-AWI-SKO (PC), 2010 WL 1948560, *1 (E.D. Cal. May 11, 2010); Williams v. Adams, No. 1:05-cv-00124-AWI- SMS (PC), 2010 WL 148703, *1 (E.D. Cal. Jan. 14, 2010).

11 Finally, Plaintiff is advised his request to substitute is premature. The Court will substitute a John or Jane Doe defendant once the Doe defendant’s identity has been established. The docket for this action will be modified to reflect the appropriate defendants once the Doe defendant identities have been established and the surnames of physical therapists “Ken” and “Michaela” have been identified. Once Plaintiff is in receipt of the records covered by the subpoena duces tecum and he has learned the names of the Doe Defendants and the surnames of “Ken” and “Michaela,” Plaintiff should file a motion or request to substitute.

18 III. CONCLUSION AND ORDER 19 Accordingly, and for the reasons stated above, IT IS HEREBY ORDERED that: 20 1. Plaintiff’s request for a subpoena duces tecum (Doc. 13) is GRANTED.

21 2. The Clerk of the Court shall forward the following documents to the United States 22 Marshal’s Service (USM): 23 a. One completed and issued subpoena duces tecum to be served on: Fresno County Jail Records Unit 25 2200 Fresno Street Fresno, CA 93721 b. One copy of Plaintiff’s first amended complaint (Doc. 9); c. One completed USM-285 form; and 1 d. Two copies of this Order, one to accompany the subpoena and one for the 2 USM.

3 3. In completing the subpoena, the Clerk of the Court shall list, as described here, the 4 documents requested: 5 Medical records, including treatment or care plans, pertaining to Plaintiff 6 Samuel Jay Miles, Booking or Inmate Number 0816743, for all treatment 7 provided between May 2022 and November 2022, including documents 8 identifying the names of nurses, physical therapists, or other medical 9 professionals who are employed by the Fresno County Jail and/or Wellpath 10 and who provided treatment to Plaintiff during the period between May 2022 11 and November 2022.

12 4. Within thirty days from the date of this order, the USM is DIRECTED to serve the 13 subpoena in accordance with the provisions of Rule 45 of the Federal Rules of Civil 14 Procedure.

15 5. The USM shall effect personal service of the subpoena duces tecum, along with a copy 16 of this Order and a copy of the first amended complaint, upon the individual or entity 17 named in the subpoena pursuant to Rule 45 of the Federal Rules of Civil Procedure 18 and 28 U.S.C. § 566(c).

19 6. Within ten days after personal service is effected, the USM shall file the return of 20 service, along with the costs subsequently incurred in effecting service, and said costs 21 shall be enumerated on the USM-285 form.

22 7. Within thirty days after service is effected, the Fresno County Jail Records Unit is 23 directed to serve the responsive documents on Plaintiff: Samuel Jay Miles 25 BN1678 Wasco State Prison 26 P.O. Box 9900 Wasco, CA 93280 1 8. Within fourteen days upon receipt of the documents identifying the John and/or Jane 2 Doe defendants, and the surnames of physical therapists “Ken” and “Michaela,” 3 Plaintiff is directed to file a request for substitution with the Court. Once the Court is 4 in receipt of the identifying information for these individuals, the Court will issue the 5 appropriate order necessary to effectuate service of process.

IT IS SO ORDERED.

8 Dated: April 26, 2024 /s/ Sheila K. Oberto .

UNITED STATES MAGISTRATE JUDGE