Gonzales et al v. Cate et al

Filing 88

ORDER Denying 83 Plaintiff's Request for Issuance of Subpoena, signed by Magistrate Judge Michael J. Seng on 7/20/12. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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FRANK GONZALES,

CASE NO. 1:06-cv-01420-AWI-MJS (PC)

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Plaintiff,

ORDER DENYING PLAINTIFF’S REQUEST
FOR ISSUANCE OF SUBPOENA

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v.

(ECF No. 83)

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MATTHEW L. CATE, et al.,
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Defendants.

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/

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Plaintiff Frank Gonzales, a state prisoner proceeding pro se and in forma pauperis,
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filed this civil rights action pursuant to 42 U.S.C. § 1983 on October 13, 2006. (Complaint,
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ECF No. 1.) On March 29, 2012, the United States Marshal returned the summons and
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USM-285 form for Defendant T. Mays, unexecuted. (Summons Return, ECF No. 68.) The
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Marshal attempted to secure a waiver of service and then attempted personal service, but
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was unsuccessful.
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On July 13, 2012, Plaintiff filed a request for issuance of subpoena to permit
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discovery of service locations for unserved Defendant T. Mays. (Request for Issuance of
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Subpoena, ECF No. 83.) That request is now before the Court.
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Subject to certain requirements set forth herein, Plaintiff is entitled to the issuance
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of a subpoena commanding the production of documents from a non-party, Fed. R. Civ.
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P. 45, and to service of the subpoena by the United States Marshal, 28 U.S.C. 1915(d).
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However, the Court will consider granting such a request only if the documents sought from

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the non-party are not equally available to Plaintiff and are not obtainable from Defendants

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through a request for the production of documents. Fed. R. Civ. P. 34.

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In this instance, Plaintiff does not explain what documents he is seeking, if he has

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taken other steps to obtain them, or how Defendants have responded to such other steps,

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if at all. Accordingly, Plaintiff’s motion for subpoenas duces tecum must be denied without

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prejudice.

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The Court and the Marshal have a statutory duty to serve process on Plaintiff’s

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behalf. The response given to the Marshal to date by the California Department of

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Corrections and Rehabilitation (CDCR) is insufficient to allow the Court to discharge this

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duty on the ground that Defendant T. Mays cannot be located. 28 U.S.C. 1915(d); Fed.

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R. Civ. P. 4(c)(3). Plaintiff is advised the Court shall direct the Marshal to re-attempt service

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on Defendant T. Mays by contacting the Legal Affairs Division of the CDCR and requesting

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the assistance of a special investigator.
Accordingly, Plaintiff’s Request for the issuance of a subpoena (ECF No. 83), is

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DENIED without prejudice.

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IT IS SO ORDERED.

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Dated:
12eob4

July 20, 2012

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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