United States District Court, E.D. Michigan, Southern Division
Victoria A. Roberts District Judge
AMENDED ORDER GRANTING AS UNOPPOSED PLAINTIFF'S
MOTION FOR SERVICE OF SUBPOENA ON NON-PARTY AGENT OF MDOC FOR
PRODUCTION OF EMAILS (DE 92)
ANTHONY P. PATTI UNITED STATES MAGISTRATE JUDGE
matter came before the Court for consideration of
Plaintiff's motion for service of subpoenas on non-party
agent of MDOC for production of emails. (DE 92.) Plaintiff
seeks an order directing the U.S. Marshals Service (USMS) to
personally serve subpoenas on Julius Curling, or the current
Michigan Department of Corrections Litigation Manager.
(Id.) This motion is unopposed.
explains that on September 7, 2018, this Court issued an
order directing the USMS to serve subpoenas on non-parties
Melinda Bennett and J. Rohrig, seeking various emails, but
that “these witnesses did not mail back their waiver of
service forms.” (Id. ¶ 2; DE 66.)
Plaintiff then filed a motion for order directing the USMS to
personally serve non-party witnesses and the MDOC
litigation manager. (DE 79.) This motion was granted in part
as to non-party MDOC employees Bennett and Rohrig, but denied
without prejudice as to non-party Julius Curling because
Plaintiff failed to attach to his motion a copy of a subpoena
to Mr. Curling. (DE 84.) Plaintiff now seeks to correct that
error by attaching the subpoenas to Julius Curling as well as
the subpoenas to Bennett and Rohrig, which he requests also
be served on Curling. (DE 92 ¶¶ 6-7; id.
at Pg ID 1305-1308.)
is proceeding in forma pauperis. Consequently,
pursuant to 28 U.S.C. § 1915(d), “[t]he officers
of the court shall issue and serve all process, and perform
all duties in such cases. Witnesses shall attend as in other
cases, and the same remedies shall be available as are
provided for by law in other cases.” 28 U.S.C. §
1915(d). This provision requires the USMS to serve an
indigent party's subpoena duces tecum, including
by personal service. See Modica v. Russell, No.
2:15-cv-00057, 2015 WL 13653879, at *2 (E.D. Cal. Sept. 18,
2015) (a plaintiff proceeding IFP is entitled to obtain
personal service of an authorized subpoena by the USMS
because Fed.R.Civ.P. 45 requires a subpoena to be personally
served); Biers v. Washington State Liquor & Cannabis
Bd., No. C15-1518JLR, 2016 WL 7723977, at *1-2 (W.D.
Wash. Apr. 21, 2016) (ordering personal service after service
by mail was not effective). A court, however, may exercise
its discretion to screen such a subpoena request, relieving
the USMS of its duty when appropriate. See 9A C.
Wright & A. Miller, Federal Practice and Procedure §
2454, pp. 244-46 n.21 (3d ed. 2010) (citations omitted).
upon review of Plaintiff's unopposed motion and the
attached subpoenas, the Court finds no circumstances
warranting an exception to the U.S. Marshals Service's
statutory duty under § 1915(d) as to the subpoenas
attached to Plaintiff's motion. Although the discovery
deadline in this case has passed, as noted above, Plaintiff
has been seeking service of these subpoenas since prior to
the discovery cut-off date. Further, the Court notes that
there was a “pause” in this litigation while the
parties were pursuing settlement negotiations. Finally, the
motion is unopposed. Because the subpoenas attached to
Plaintiff's motion (at ECF 92, Pg ID 1305-1308) do not
require the attendance of any witness, the fees for one
day's attendance and the mileage allowed by law need not
be tendered. See Fed. R. Civ. P. 45(b)(1).
Plaintiff's motion is GRANTED and the
Court DIRECTS the USMS to
PERSONALLY serve the subpoenas at ECF No.
92, Page IDs 1305-1308 at the addresses listed on the
subpoenas as expeditiously as possible. The Court
alternatively DIRECTS the USMS to serve the
subpoenas at ECF No. 92, Page IDs 1305-1308 at the addresses
listed on the subpoenas by standard, first class U.S. Mail,
pursuant to Fed.R.Civ.P. 4(e)(1) and M.C.R. 2.105(I)(1). By
way of this Order, Michigan's Department of Attorney
General, who represents the MDOC defendants in this action,
is put on notice of these subpoenas. Costs of service by the
USMS are waived.
if and/or when counsel is appointed for Plaintiff, to the
extent service ordered herein is unsuccessful,
Plaintiff's counsel shall be authorized to subpoena the
documents sought in the subpoenas at ECF No. 92, Page IDs
1305-1308 at any time, through the conclusion of trial.
 The Court notes that the docket sheet
does not reflect a return of service regarding the subpoenas
issued to Bennett and Rohrig indicating that the subpoenas