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Gambino v. Payne

United States District Court, W.D. New York

March 2, 2015

DAVID AUGUST GAMBINO, Plaintiff,
v.
CAPTAIN PAYNE, et al., Defendants.

ORDER

HUGH B. SCOTT, Magistrate Judge.

Before the Court is moving defendants' motion to quash plaintiff's subpoenas or for a protective Order (Docket No. 66). The term "moving defendants" here refer to the defendants that have answered and appear through defense counsel, that is Chief (formerly Captain) Payne, Sergeant Williams, Sergeant Greenwald, Officer Rankin, Officer Goeseke, and Officer Reabold (Docket No. 66, Defs. Atty. Decl. ¶ 2). Other defendants (such as Booth, see Docket No. 65, and Lewis, Docket No. 66, Defs. Atty. Decl. ¶ 7, discussed below) either have not appeared or have not been served or have not been sufficiently identified to be served.

Responses to this motion were due by January 14, 2015, any replies due by January 21, 2015, and the matter was deemed submitted (Docket No. 67). Also pending is plaintiff's motion for summary judgment (Docket No. 75).

BACKGROUND

This is a civil rights action commenced by plaintiff, proceeding pro se as an inmate. On August 30, 2012, plaintiff filed his original Complaint (Docket No. 1). He alleges that, on January 1 to June 28, 2012, while in Niagara County's custody, defendants exposed plaintiff's naked body in violation of his Jewish religious beliefs in modesty, that plaintiff endured corporal punishment and suffered sexual abuse while in Niagara County custody[1] (Docket No. 11, Am. Compl). Plaintiff later testified that he converted to Judaism in March 2012 (Docket No. 66, Defs. Atty. Decl. ¶ 18, Ex. D, Pl. EBT Tr. at 114-15).

This Court granted plaintiff's in forma pauperis motion on his initial Complaint (Docket No. 2), dismissing the First Claim and granting him leave to amend some of the remaining claims (Docket No. 6). Plaintiff then filed his Amended Complaint (Docket No. 11, asserting claims that survived this in forma pauperis review) and defendants answered (Docket Nos. 14, 58). In that Answer, defense counsel only appeared for defendants Payne, Williams, Greenwald, Rankin, Goeseke, and Reabold, but inadvertently answered for defendant Booth who was not found (Docket No. 66, Defs. Atty. Decl. ¶¶ 3, 6; see Docket No. 59). A Scheduling Order was entered (Docket No. 15), which (as with other pro se inmate cases) called for initial disclosures similar to Rule 26(a) despite that rule exempting such disclosure in an action by an unrepresented plaintiff in custody, Fed.R.Civ.P. 26(a)(1)(B)(iv).

Plaintiff also named other defendants (Lewis, Liwswinski, Kitchen Cook, Supervisor of Mental Health, and 3 John Doe Male officers) but since they have not been identified, they were not yet served with pleadings (No. 66, Defs. Atty. Decl. ¶ 7). This discovery dispute arises from plaintiff's attempt to learn the identity and location of these defendants (see id. ¶ 8, Exs. A, B). On November 5, 2014, plaintiff filed subpoena to produce information (Docket No. 44, Pl. Response at 11-14; see Docket No. 66, Defs. Atty. Decl. ¶ 11, Ex. A). In the first subpoena, plaintiff sought the full names and titles of employees of the Niagara County jail from November 17, 2009, to June 28, 2014, with the subpoena returnable on November 24, 2014, and the materials mailed to plaintiff at his federal prison (Docket No. 66, Defs. Atty. Decl. Ex. A). The second subpoena had defendant Lewis, returnable on December 30, 2014, at the McKean Federal Correction Institution to "answer deposition of written questions" (id. Ex. B), posing 28 questions to Lewis. Plaintiff also served a purported subpoena upon the Niagara County Jail, again seeking the names, title, and current employment status of jail employees from 2009 to November 15, 2014 (id.).

On December 10, 2014, defense counsel wrote to plaintiff informing him of the defects in these subpoenas (Docket No. 66, Defs. Atty. Decl. ¶ 9, Ex. C). First, the subpoena did not identify the parties to whom it was addressed; it merely stated that it was addressed to "Captain Payne, Sergeant Williams, et al., " by not listing who were the others included in the "et al." (id. ¶ 12). The subpoena next improperly asks for information rather than seeking testimony or production of documents or things for inspection, see Fed.R.Civ.P. 45(a)(1)(A)(iii), without specifying the medium of production (id. ¶ 13). Defendants next contend that plaintiff failed to serve Payne or Greenwald, instead mailing the document to defense counsel (id. ¶ 14). They fault the subpoenas for Lewis and the Niagara County jail, noting similar defects as with the first subpoena (id. ¶¶ 16, 17, 18) and that defense counsel does not represent Lewis (id. ¶ 17). Defendants also complain that the Niagara County subpoena was overly broad, covering 2009 to 2014, or more than two years after he left the jail (id. ¶ 18).

Plaintiff did not respond to this motion. Instead, he filed his (now pending) motion for summary judgment, arguing that defendants have stonewalled and hindered in identifying Officer Lewis (Docket No. 75, Pl. Motion at 1).

DISCUSSION

I. Applicable Standards

A. Quash Subpoena Standard

This Court is empowered to quash or modify the scope of the subpoena to eliminate its objectionable features, 9A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2459, at 52 (Civil 2d ed. 1995); Ghandi v. Police Dep't of City of Detroit, 74 F.R.D. 115, 117 (E.D. Mich. 1977). The decision to quash is within this Court's sound discretion, see 9A Wright & Miller, supra, § 2459, Supp. at 16 (2005 Supp.). Modification ...


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