United States District Court, D. Nevada
RICHARD W. PETERS, Plaintiff,
GREG COX et al., Defendants.
C. JONES United States District Judge
a prisoner civil rights case. Pending before the Court is an
objection to three rulings of the Magistrate Judge.
FACTS AND PROCEDURAL HISTORY
Richard Peters, a prisoner in the custody of the Nevada
Department of Corrections (“NDOC”), sued
Defendants in this Court based on Defendant Gayleen Fukajama
having allegedly pulled a medical device off of
Plaintiff's arm, causing him pain and injury. The Court
dismissed the other Defendants upon screening but permitted
an Eighth Amendment claim to proceed against Fukajama.
Mediation was unsuccessful. The Court denied a motion to
dismiss or for summary judgment based on non-exhaustion of
administrative remedies and qualified immunity. Plaintiff has
objected to the Magistrate Judge's rulings: (1) granting
a non-party's motion to quash a subpoena; (2) denying
Plaintiff's motion for sanctions; and (3) granting
Defendants an extension of time to file a motion for summary
72(a) permits a district court judge to modify or set aside a
magistrate judge's non-dispositive ruling that is clearly
erroneous or contrary to law:
When a pretrial matter not dispositive of a party's claim
or defense is referred to a magistrate judge to hear and
decide, the magistrate judge must promptly conduct the
required proceedings and, when appropriate, issue a written
order stating the decision. A party may serve and file
objections to the order within 14 days after being served
with a copy. A party may not assign as error a defect in the
order not timely objected to. The district judge in the case
must consider timely objections and modify or set aside any
part of the order that is clearly erroneous or is contrary to
Fed. R. Civ. P. 72(a); see also Local R. IB 3-1(a).
Rule 72(a) institutes an abuse of discretion standard.
See Grimes v. City and Cnty. of S.F., 951 F.2d 236,
241 (9th Cir. 1991) (citing United States v. BNS
Inc., 858 F.2d 456, 464 (9th Cir. 1988) (“We still
must determine, however, whether the court abused its
discretion in issuing its order based on the facts before it
which are supported by the record. Under the abuse of
discretion standard, we cannot simply substitute our judgment
for that of the district court, but must be left with the
definite and firm conviction that the court committed a clear
error of judgment in reaching its conclusion after weighing
the relevant factors.”)).
The Motion to Quash
November 9, 2017, non-party NDOC received a subpoena from
Plaintiff's counsel by certified mail commanding an
unspecified NDOC representative to appear for a deposition on
November 20 (the final day of discovery under the Scheduling
Order). NDOC moved to quash the subpoena under Rule 45(d)(3),
arguing that subpoenas to non-parties must be personally
served. See Fed. R. Civ. P. 45(b)(1) (“Serving
a subpoena requires delivering a copy to the named person . .
. .”). On January 12, 2018, the Magistrate Judge
granted the motion because “there are so many problems
with the subpoena and the deposition . . . .” (Hr'g
11:18, Jan. 12, 2018). Plaintiff has objected to that ruling.
authority on whether “delivering a copy to the named
person” permits service by mail is mixed. Compare,
e.g., Parker v. Doe, No. Civ. A. 02-7215, 2002
WL 32107939, at *2 (E.D. Penn. Nov. 21, 2002) (agreeing with
the majority rule that a non-party cannot be served by mail
under Rule 45(b)(1)), with, e.g., Hall v.
Sullivan, 229 F.R.D. 501, 503-04 (D. Md. 2005) (noting
that personal service is the majority rule but finding the
cases following the minority rule to be better reasoned).
There being no published authority on the question in this
Circuit, and the text of Rule 45(b)(1) being ambiguous on the
question, the Court cannot say that the Magistrate Judge
ruled contrary to law or in clear error by quashing a
subpoena to a non-party that was indisputably not personally
served. See Fed. R. Civ. P. 72(a).
The Motion for Sanctions
December 4, 2017, Plaintiff asked the Magistrate Judge to
sanction Defendants under Rule 37 or the Court's inherent
authority. Plaintiff claims a video of the incident at issue
existed but that NDOC destroyed it. Plaintiff therefore asked
the Magistrate Judge “for a conclusive presumption that
the attack by the defendant was malicious and oppressive,
done with a reckless disregard of the near certain
consequences and that the attack was the cause of the loss of
internal fixation (working the screws loose) and the
subsequent surgery.” The Magistrate Judge did not err
in denying that motion. Indeed, granting the motion would
have been contrary to law, because a defendant cannot be
sanctioned for the acts of a person over which she has no
authority or control, and Plaintiff made no showing that
Fukajama was involved in or had any authority over those
involved in the alleged destruction of the video.
“‘[S]poliation of evidence may be imputed to a
[party] who did not participate in the spoliation' only
where the destroying party is the ‘agent' of that
party.” Gemsa ...