Opinion
24-cv-3019-HLT-TJJ
09-27-2024
SEAN E. MCDONALD, Plaintiff, v. GREGORY DIMARZO, Defendant.
ORDER GRANTING PLAINTIFF'S MOTION FOR ISSUANCE OF SUBPOENAS
Teresa J. James, U.S. Magistrate Judge
Plaintiff, who is incarcerated and proceeding pro se and in forma pauperis, filed this civil rights action under 42 U.S.C. § 1983, alleging Defendant was deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. On August 26, 2024, Plaintiff filed two proposed subpoenas (ECF Nos. 29 and 30) asking the clerk to issue them to “Health Services Administrator Amy Simmons - Larned State Correctional Facility,” and “Health Services Administrator Pam Matthews” at the Winfield Correctional Facility. On September 4, 2024, Plaintiff re-filed the same two proposed subpoenas (ECF No. 34) but added some additional pages that reference the subpoenaed materials. The Court construes these filings as motions for issuance of the proposed subpoenas. No opposition was filed in response to Plaintiff's filings requesting issuance of the proposed subpoenas.
The Court will grant Plaintiff's request for issuance of the proposed subpoenas. Although Plaintiff requests the subpoenas be issued for him to serve, Plaintiff is proceeding in forma pauperis and therefore the Court may instead order the subpoenas served by the United States Marshals Service (“USMS”). The in forma pauperis statute, 28 U.S.C. § 1915(d), requires officers of the court to “issue and serve all process, and perform all duties in such cases.” Courts interpret this statute to authorize the court to direct the Marshals Service to serve an indigent party's subpoena. Thus, to minimize the burden on pro se Plaintiff and to avoid further delay, the Court will order the USMS to serve the two subpoenas along with a copy of this Order.
Simmons v. Cline, No. 20-3096-HLT-ADM, 2021 WL 1056517, at *3 (D. Kan. Mar. 19, 2021); Ngiendo v. First Transit, Inc., No. 23-4010-HLT-RES, 2023 WL 11877442, at *2 (D. Kan. Mar. 27, 2023).
IT IS THEREFORE ORDERED that Plaintiff's motion for issuance of the proposed subpoenas (ECF No. 34) filed on September 4, 2024 is granted. Plaintiff's prior motions for issuance of these same proposed subpoenas (ECF Nos. 29 and 30) filed on August 26, 2024 are deemed moot.
IT IS FURTHER ORDERED that the clerk's office shall sign and issue Plaintiff's two proposed subpoenas (docketed at ECF Nos. 34-1 and 34-2) and transmit them to the USMS along with a copy of this Order.
IT IS FURTHER ORDERED that the USMS is directed to serve the subpoenas, along with a copy of this Order, upon the applicable entities. For the subpoena directed to “Health Services Administrator Amy Simmons - Larned State Correctional Facility,” the following address may be used: 1318 KS Highway, Larned, Kansas 67550. For the subpoena directed to “Health Services Administrator Pam Matthews,” the following address may be used: Winfield Correctional Facility, 1806 Pinecrest Circle, Winfield, Kansas 67156.
IT IS FURTHER ORDERED that the subpoenaed entities shall have thirty (30) days from the date of service of the respective subpoena to respond.
A paper copy of this Order will be mailed to Plaintiff with the Notice of Electronic Filing (NEF) emailed to the Winfield KDOC email account.
IT IS SO ORDERED.