Goodlow v. Camacho

Opinion

1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 Ivan F. GOODLOW, Case No.: 20-cv-2038-AJB-AGS 4 Plaintiff, ORDER GRANTING PLAINTIFF LEAVE TO DEPOSE INMATE 5 v. WITNESS AND DENYING 6 CAMACHO, et al., PLAINTIFF’S REQUEST FOR SUBPOENAS (ECF 55) 7 Defendants. 8 9 Plaintiff Goodlow moves for a court order that nonparty prisoner Kevin Porter “be 10 deposed by a written deposition, [] give a written statement, and be a witness.” (ECF 55, 11 at 1.) 12 DISCUSSION 13 Goodlow’s precise request is unclear. To the extent Goodlow seeks leave to depose 14 Porter, the court grants the request. See Fed. R. Civ. P. 31(a)(2)(B) (“A party must obtain 15 leave of court [to depose by written questions] . . . if the deponent is confined in prison.”). 16 But Goodlow doesn’t “comply with Rule 31, which require[s] Plaintiff to designate a 17 deposition officer and notify the deponent of the agreed-upon time, place and manner of 18 deposition.” See Jackson v. Woodford, No. CIV 05CV0513-L NLS, 2007 WL 2580566, 19 at *1 (S.D. Cal. Aug. 17, 2007). He also “fail[s] to show that he could pay the costs 20 associated with written depositions, including fees for a deposition officer and court 21 reporter, [and] the costs of transcribing the deposition.” See Owens v. Degazio, 22 No. 216CV2750JAMKJNP, 2019 WL 3253934, at *2 (E.D. Cal. July 19, 2019). And 23 “plaintiff’s indigent status does not entitle him to a waiver of fees.” Id. So, if Goodlow is 24 asking the Court to issue a subpoena for a written deposition, that request is denied. 25 Plaintiff also seeks a “written statement” from Porter, which the Court interprets as 26 an affidavit. (See ECF 55, at 1.) The Court also denies this request. “[W]hile a subpoena 27 may command a person to produce existing documents in that person’s possession, it may 28 not command a person to create a new document.” Medlock v. S. Pac. Fin. Corp., 1 || No. CV 11-5313-GW (SPX), 2012 WL 13008719, at *2 (C.D. Cal. Apr. 23, 2012). “An 2 || unexecuted and likely undrafted declaration of a non-party is not an existing document in 3 || anybody’s possession, custody or control. Therefore, a request to subpoena a non-party to 4 || produce an affidavit, such as plaintiff is requesting here, is beyond the scope of Rule 45.” 5 || See Jackson v. Paramo, No. 17CV882-CAB (BLM), 2018 WL 4537746, at *2 (S.D. Cal. 6 || Sept. 21, 2018) (citation omitted). 7 Finally, Goodlow requests that Porter “be a witness on what he saw happen to 8 || plaintiff.’ (ECF 55, at 2.) The Court interprets this as a writ of habeas corpus ad 9 || testificandum. See Jones v. McGuire, No. 2:08-CV-2607 MCE CKD, 2013 WL 1896308, 10 || at *1 (E.D. Cal. May 6, 2013) (“[T]he proper procedure for a pro se incarcerated plaintiff 11 secure the attendance of inmate witnesses] is to seek a writ of habeas corpus ad 12 || testificandum.”). But Goodlow’s request is premature. “There is no hearing presently 13 before the Court and no trial date has been set.” See Merch. v. Lopez, No. 09-856 WQH 14 || NLS, 2010 WL 3731108, at *1 (S.D. Cal. Sept. 8, 2010). Therefore, the Court denies as 15 moot Goodlow’s motion for issuance of a writ of habeas corpus ad testificandum. See id. 16 CONCLUSION 17 For the reasons above, the Court enters the following orders: 18 1. The Court GRANTS Goodlow’s motion for leave to depose inmate Porter. 19 2. The Court DENIES the request for a subpoena to depose Porter by written 20 deposition. 21 3. The Court DENIES Goodlow’s request to subpoena Porter to produce an 22 affidavit. 23 4. The Court DENIES AS MOOT Goodlow’s motion for a writ of habeas corpus 24 ad testificandum. 25 ||Dated: August 10, 2021 26 A L. Hon. Andrew G. Schopler United States Magistrate Judge 28