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Fernandez v. State

United States District Court, Eighth Circuit

December 18, 2013

Kevin Fernandez, Plaintiff,
v.
State of North Dakota, et al., Defendants.

ORDER

CHARLES S. MILLER, Jr., Magistrate Judge.

I. BACKGROUND

The plaintiff, Kevin Fernandez ("Fernandez"), is presently in the custody of the Nevada Department of Corrections. He was transferred from Nevada to the North Dakota State Penitentiary in May 2011 for long-term custodial housing pursuant to an agreement struck between the states of Nevada and North Dakota. He was transferred back to Nevada in September 2011.

Fernandez initiated the above entitled action in November 2012, asserting, amongst other things, that defendants had denied him his right to procedural due process, to wit:

39. On September 14, 2011, the Defendants Bertsch, Schmalenberger, Conway, Branson, and Fister did order, and had Plaintiff transferred to Nevada without providing Plaintiff any due process protections prior to transferring Plaintiff back to Nevada.
40. Plaintiff has a protected liberty interest in not being transferred back to Nevada and to remain in North Dakota created by the Settlement Agreement in Fernandez v. Nevada, 3:06-cv-628-LRH-RAM (D. Nev. 2006), and enforced through the Interstate Corrections Compact against North Dakota and Defendants, and protected by the Fourteenth Amendment.
41. The transferring of Plaintiff to Nevada and deprivation of his liberty interest without due process is an atypical and significant deprivation or hardship on Plaintiff in relation to the ordinary incidents of prison life.
42. Plaintiff was entitled to advanced written notice, a prior hearing in which Plaintiff could present evidence, witnesses, and cross-examination of witnesses, an independent decision maker, a decision based upon some evidence, and a written decision of the reason for and evidence relied upon.
43. Plaintiff was afforded none of these due process protections prior to being transferred back to Nevada, in violation of his Fourteenth Amendment procedural due process rights.

(Docket No. 9) (errors in original).

On October 29, 2013, Fernandez filed a "Motion for Court to Issue and Serve Subpoena Duces Tecum." He asks that subpoenas duces tecum be issued for the following non-parties, all of whom reside outside of this district: James Cox, Director of Nevada's Department of Corrections, Catherine Cortez Masto, Nevada's Attorney General, and Judy Matteucci, Clerk for the Board of Examiner. He seeks production of a verified copy of the aforementioned long-term custodial housing agreement between Nevada and North Dakota along with any and all documentation pertaining to the formulation of and Nevada's reliance on this agreement.

II. DISCUSSION

Pursuant to Federal Rule of Civil Procedure 45(a)(2)(c), a subpoena may direct a non-party to an action to produce documents or other tangible objects for inspection. The issuance of a subpoena duces tecum is subject to limitations, however.

"The Court has the discretionary power to refuse to subpoena witnesses and to prevent abuse of its process in both civil and criminal proceedings.'" Stockdale v. Stockdale, Case No. , 2009 WL 4030758 at *1 (E.D. Mo. Nov. 18, 2009) (quoting Manning v. Lockhart , 623 F.2d 536, 539 (8th Cir.1980) (per curiam)); Jackson v. Brinker, No. IP 91-471-C , 1992 WL 404537 at * 7 (S.D. Ind. 1992) (opining that courts have the "inherent and statutory power to supervise an in forma pauperis party's litigation to the end of preventing abuse of the court's process and the privileges granted him under ยง 1915, and that this authority extends to screening an indigent party's requests for issuance and service of subpoena duces tecum on non-parties."). "This power should be exercised to protect the resources of the Court and the Marshals Service, and to prevent harassment and undue expense of other parties and non-parties." Stockdale v. Stockdale , 2009 WL 4030758 at *1; see also Heilman v. Lyons, No. , 2010 WL 5168871 at *1 (E.D. Cal. ...


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