Smith v. Crones

Full title: JARMAAL LARONDE SMITH, Plaintiff, v. LEANN CRONES, et al., Defendants

Court: United States District Court, E.D. California

Date published: Sep 18, 2009

Case No. 2:07-cv-00964 ALA (P) (E.D. Cal. Sep. 18, 2009)

Opinion

Case No. 2:07-cv-00964 ALA (P).

September 18, 2009

ORDER

ARTHUR ALARCÓN, Circuit Judge

Plaintiff Jarmaal Laronde Smith is a state prisoner proceeding pro se in the instant action. He seeks relief pursuant to 42 U.S.C. § 1983. This matter is scheduled for a jury trial that will commence on September 28, 2009. (Doc. 101).

Prior to the jury trial, this Court will hold a hearing to determine whether Plaintiff will appear at trial in restraints, and if so, to what extent. See Lemons v. Skidmore, 985 F.2d 354, 358 (7th Cir. 1993) (holding that a judge should give individual consideration to whether a civil litigant, who is a prisoner, must appear at trial in restraints). As such, this Court orders the Sergeant in charge of Transportation to be present at trial to present evidence to support the Department of Corrections and Rehabilitation's recommendation that Plaintiff be restrained at trial. See id. (finding that a judge may consider recommendations made by the Department of Corrections regarding the issue of shackling as evidence, but the ultimate determination resides with the court and may not be delegated to another party).

Accordingly, IT IS HEREBY ORDERED that:

1. The Clerk of Court issue the attached subpoena to require the Sergeant in charge of Transportation to appear before this Court on September 28, 2009, at the United States District Court for the Eastern District of California, 501 "I" Street, Sacramento, California in courtroom 3 on the 15^th floor;

2. The Clerk of Court forward the issued subpoena and this order to the United States Marshal;

3. The United States Marshal personally serve the Sergeant in charge of transportation or his or her designated agent for service of process on or before September 28, 2009; and

4. The Clerk of Court fax a courtesy copy of the subpoena to the Sergeant in charge of Transportation at the California Substance Abuse Treatment Facility.

Issued by the SUBPOENA IN A CIVIL CASE ¹ 30 45

1 If action is pending in district other than district of issuance, state district under case number.

UNITED STATES DISTRICT COURT Eastern District of California JARMAAL LARONE SMITH, PLAINTIFF V. LEANN CRONES, ET. AL., DEFENDANTS Case Number: 2:07-CV-00964 ALA TO: Sergeant in charge of transporatation 900 Quebec Road Corcoran, California [radeic] YOU ARE COMMANDED to appear in the United States District court at the place, date, and time specified below to testify in the above case. PLACE OF TESTIMONY COURTROOM Eastern District of California Courtroom 3, 15th floor 501 "1" Street DATE AND TIME Sacramento, California 9/28/2009 1:00 pm [] YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the taking of a deposition in the above case. PLACE OF DEPOSITION DATE AND TIME [] YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objects at the place, date, and time specified below (list documents or objects): PLACE DATE AND TIME [] YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below. PREMISES DATE AND TIME Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. Federal Rule of Civil Procedure (b)(6). ISSUING OFFICER'S SIGNATURE AND TITLE (INDICATE IF ATTORNEY FOR PLAINTIFF OR DEFENDANT) DATE 9/18/2009 ISSUING OFFICER'S NAME, ADDRESS AND PHONE NUMBER R. Matson, 501 "1" Street, Rm. 4-200, Sacramento, CA 95814 (916)930-4000 (See Federal Rule of Civil Procedure (c), (d), and (e), on next page) PROOF OF SERVICE DATE PLACE SERVED SERVED ON (PRINT NAME) MANNER OF SERVICE SERVED BY (PRINT NAME) TITLE DECLARATION OF SERVER I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in the Proof of Service is true and correct. Executed on _______________________ ___________________________________ DATE SIGNATURE OF SERVER ___________________________________ ADDRESS OF SERVER ___________________________________ Federal Rule of Civil Procedure 45(c), (d), and (e), as amended on December 1, 2007:

(c) PROTECTING A PERSON SUBJECT TO A SUBPOENA.

(d) DUTIES IN RESPONDING TO A SUBPOENA.

(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The issuing court must enforce this duty and impose an appropriate sanction — which may include lost earnings and reasonable attorney's fees — on a party or attorney who fails to comply.

(2) Command to Produce Materials or Permit Inspection.

(A) Appearance Not Required. A person commanded to produce documents, electronically stored information, or tangible things, or to permit the inspection of premises, need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial.

(B) Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting the premises — or to producing electronically stored information in the form or forms requested. The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply:

(i) At any time, on notice to the commanded person, the serving party may move the issuing court for an order compelling production or inspection.

(ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance.

(3) Quashing or Modifying a Subpoena.

(A) When Required. On timely motion, the issuing court must quash or modify a subpoena that:

(i) fails to allow a reasonable time to comply;

(ii) requires a person who is neither a party nor a party's officer to travel more than 100 miles from where that person resides, is employed, or regularly transacts business in person — except that, subject to Rule 45(c)(3)(B)(iii), the person may be commanded to attend a trial by traveling from any such place within the state where the trial is held;

(iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or

(iv) subjects a person to undue burden.

(B) When Permitted. To protect a person subject to or affected by a subpoena, the issuing court may, on motion, quash or modify the subpoena if it requires:

(i) disclosing a trade secret or other confidential research, development, or commercial information;

(ii) disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party; or

(iii) a person who is neither a party nor a party's officer to incur substantial expense to travel more than 100 miles to attend trial

(C) Specifying Conditions as an Alternative. In the circumstances described in Rule 45(c)(3)(B), the court may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party:

(i) shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and

(ii) ensures that the subpoenaed person will be reasonably compensated.

(1) Producing Documents or Electronically Stored Information. These procedures apply to producing documents or electronically stored information:

(A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand.

(B) Form for Producing Electronically Stored Information Not Specified. If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.

(C) Electronically Stored Information Produced in Only One Form. The person responding need not produce the same electronically stored information in more than one form.

(D) Inaccessible Electronically Stored Information. The person responding need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.

(2) Claiming Privilege or Protection.

(A) Information Withheld. A person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material must:

(i) expressly make the claim; and

(ii) describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.

(B) Information Produced. If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved.

The issuing court may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena. A nonparty's failure to obey must be excused if the subpoena purports to require the nonparty to attend or produce at a place outside the limits of Rule 45(c)(3)(A)(ii).