Pratt v. CoreCivic Incorporated et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Robert James Pratt,
Plaintiff,
v.
CoreCivic Incorporated,
Defendant.
No. CV-23-00043-PHX-DWL (JFM)
ORDER
This is a pro se prisoner civil rights action in which Plaintiff alleges that he and
other Native American prisoners at the Saguaro Correctional Center (“SCC”) in Eloy,
Arizona were denied access to the sweat lodge. (Doc. 73 at 1.) Defendant is the private
owner and operator of SCC. (Doc. 65 ¶ 2.) Although the events at issue in this action took
place in Arizona, Plaintiff is not actually an Arizona prisoner and is no longer located in
Arizona—he is a prisoner of the Idaho Department of Corrections (“IDOC”), was held at
SCC between August 2020 and February 2023 pursuant to a “correctional services
agreement” between Defendant and IDOC, and has since been transferred back to an Idaho
prison. (Doc. 65-3 ¶ 6; Doc. 73 at 4.)
In December 2025, the Court issued an order denying Defendant’s motion for
summary judgment on the issue of exhaustion. (Doc. 73.) Defendant then requested an
evidentiary hearing on exhaustion. (Doc. 74.) The hearing was scheduled for February
24, 2026. (Doc. 77.) However, on February 20, 2026, Plaintiff filed a motion to continue
the hearing, premised on his contention that defense counsel reneged on a promise to
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arrange for the appearance of various witnesses whom Plaintiff wished to call at the hearing
(Doc. 82), and a motion for the issuance of subpoenas to those witnesses (Doc. 83). The
Court granted the continuance request and stated that it would address, via a future order,
the subpoena requests. (Doc. 86.) This is that order.
Plaintiff seeks to issue subpoenas to nine witnesses. The first proposed subpoena
recipient is “Former SCC Case Manager Nervaez” (Doc. 83 at 2), but Defendant avows in
its response that Nervaez is deceased. (Doc. 85 at 2.) Plaintiff did not file a reply or
otherwise attempt to refute this avowal. Accordingly, the request to issue a subpoena to
Nervaez is denied.
The second proposed subpoena recipient is “Paralegal Keith Cardon,” who “worked
as the paralegal at [SCC].” (Doc. 83 at 3.) The Court is satisfied by Plaintiff’s explanation
as to why he wishes to subpoena Cardon. See generally D. Ariz. G.O. 18-19 (“[A]ny self-
represented litigant who wishes to serve a subpoena must file a motion with the Court for
issuance of the subpoena. The motion must (1) be in writing, (2) attach a copy of the
proposed subpoena, (3) set forth the name and address of the witness to be subpoenaed and
the custodian and general nature of any documents requested, and (4) state with
particularity the reasons for seeking the testimony and documents. The assigned judge
shall determine whether the requested subpoena shall issue.”). Additionally, Defendant
does not oppose the request to subpoena Cardon. Accordingly, Plaintiff’s subpoena request
as to Cardon is granted.
The third and fourth proposed subpoena recipients are “Grievance Coordinator J.
Pagnani” and IDOC “Deputy Warden Steven Grills.” (Doc. 83 at 4.) However, in its
response, Defendant avows that it intends to call both of those witnesses at the evidentiary
hearing and has already arranged for their attendance. (Doc. 85 at 2.) In light of that
avowal, Plaintiff’s subpoena request as to Pagnani and Grills is denied as moot.1
The remaining five subpoena recipients (Whitwater, Nuss, Soulier, Harshbarger,
1 Defendant is advised that if it fails, for whatever reason, to secure the attendance of
those witnesses at the evidentiary hearing, this may necessitate a continuance or other
consequence.
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and Meyer) are inmates. (Doc. 83 at 5-11.) Plaintiff acknowledges that two of those
inmates (Harshbarger and Meyer) are IDOC prisoners who are currently housed in Idaho.
(Id.) As Defendant notes in its response (Doc. 85 at 2-3), those individuals are outside the
Court’s subpoena power. See Fed. R. Civ. P. 43(b)(1). Accordingly, Plaintiff’s subpoena
request as to Harshbarger and Meyer is denied.
As for Whitwater, Nuss, and Soulier, although Defendant identifies various reasons
why their anticipated testimony may be hearsay or otherwise inadmissible, those are not
proper grounds for opposing a pro se party-opponent’s subpoena request. Dennison v.
Ryan, 2022 WL 2665926, *3 (D. Ariz. 2022) (“[T]he Court first notes that it construes
Plaintiff's Motion as simply requesting the issuance of subpoenas. Thus, the only issue on
this Motion is whether Plaintiff has met the procedural requirements provided by General
Order 18-19. The Court does not address the evidentiary admissibility of any of the
witnesses at issue. To the extent Defendant objects to the admissibility of Plaintiff’s
proposed witnesses on another ground, such as relevancy or some other evidentiary
objection, this Motion does not present the proper avenue for such argument.”); Fed. R.
Civ. P. 43(a)(3). Accordingly, Plaintiff’s subpoena request as to Whitwater, Nuss, and
Soulier is granted.
The determination that Plaintiff should be allowed to subpoena Cardon, Whitwater,
Nuss, and Soulier raises several logistical difficulties. The first is identifying who will
effect service. In this situation, the answer is the U.S. Marshal’s Service (“USMS”).
Cortinas v. Vasquez, 2022 WL 149061, *5 (E.D. Cal. 2022) (“Briefly stated, service of a
properly issued subpoena duces tecum in a civil rights action brought by a pro se prisoner
proceeding IFP will be served at no expense to the prisoner by the USMS.”) (citing 28
U.S.C. § 1915(d)).
The second logistical difficulty concerns witness fees. See Fed. R. Civ. P. 45(b)(1)
(“Serving a subpoena requires delivering a copy to the named person and, if the subpoena
requires that person’s attendance, tendering the fees for 1 day’s attendance and the mileage
allowed by law.”). Mileage is not at issue here, as the hearing will be held via Zoom (and
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three of the recipients are inmates), but each recipient is entitled to a daily witness fee of
$40. See 28 U.S.C. § 1821(b). Plaintiff is responsible for paying those fees. Tedder v.
Odel, 890 F.2d 210, 211-12 (9th Cir. 1989) (“Although the plain language of section 1915
provides for service of process for an indigent’s witnesses, it does not waive payment of
fees or expenses for those witnesses. . . . We join the Third, Sixth, Seventh, and Eighth
Circuits in finding no such authorization in section 1915.”); Cortinas, 2022 WL 149061 at
*5 (“[I]f the subpoena involves the testimony of a witness, rather than the production of
documents, the prisoner plaintiff must pay any associated witness fees and costs and
provide those fees and costs prior to service. Witness fees cannot be waived.”).
Accordingly, Plaintiff must tender $160 as a prerequisite to service by the USMS.
The third logistical difficulty is identifying where the recipients may be served, as
Plaintiff does not possess the recipients’ current addresses. As for Cardon, Defendant
states that he “is no longer employed by CoreCivic. CoreCivic may not release current or
former employee’s personal information to include last known address information to
currently incarcerated persons for safety/security reasons. To address this legitimate
safety/security/confidentiality concern, undersigned counsel is prepared to provide last
known address information for [Cardon] under seal to the Court, should the Court so order
the same.” (Doc. 85 at 2.) Similarly, as for Whitwater, Nuss, and Soulier, Defendant states
that “[f]or legitimate safety/security reasons, Defendant may not release current housing
information regarding an inmate to another currently incarcerated person. . . . As for
Plaintiff’s inmate witnesses incarcerated at Saguaro Correctional Center, . . . undersigned
counsel is prepared to file a notice, under seal, apprising the Court of the names of inmate
witnesses currently incarcerated at Saguaro Correctional Center for issuing of subpoenas
to them.” (Id. at 2-3.) Thus, assuming Plaintiff tenders the necessary witness fees
discussed in the preceding paragraph, the Court will then order Defendant to provide
Cardon’s, Whitwater’s, Nuss’s, and Soulier’s last known contact information to the Court
under seal and ex parte.
The fourth logistical difficulty concerns when the recipients should be ordered to
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testify. Because it will presumably take some time for the USMS to complete (or attempt
to complete) service of the subpoenas on Cardon, Whitwater, Nuss, and Soulier, the
evidentiary hearing will be reset for August 25, 2026 at 9:30 AM. However, if Plaintiff
fails to tender the necessary witness fees, the subpoenas will not issue and the Court will
accelerate the hearing date.
Accordingly,
IT IS ORDERED that:
1. Plaintiff’s motion for subpoenas (Doc. 83) is granted in part and denied in
part.
2. Within 14 days of the issuance of this order, Plaintiff must tender $160 in
witness fees to the Clerk of Court.
3. The evidentiary hearing on exhaustion is reset for August 25, 2026 at 9:30
AM and will be held via Zoom. Defendant must coordinate with the courtroom deputy to
facilitate Plaintiff’s appearance via Zoom. Defendant shall still meet and confer with
Plaintiff and prepare a joint exhibit and witness list, which must be filed no later than
fourteen days before the commencement of the evidentiary hearing. Defendant shall also
provide all marked exhibits to chambers (lanza_chambers@azd.uscourts.gov) no later than
fourteen days before the commencement of the evidentiary hearing.
Dated this 10th day of March, 2026.
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